2021 Colorado Code
Title 8 - Labor and Industry
Article 4 - Wages
§ 8-4-121. Nonwaiver of Employee Rights
Any agreement, written or oral, by any employee purporting to waive or to modify such employee's rights in violation of this article shall be void.
History. Source: L. 2003: Entire article amended with relocations, p. 1862, § 1, effective August 6.
Editor's note:
This section is similar to former § 8-4-125 as it existed prior to 2003, and the former § 8-4-121 was relocated to § 8-4-118 .
ANNOTATIONAnnotator's note. Since § 8-4-121 is similar to § 8-4-125 as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.
This section, by its plain language, voids any agreement, written or oral, that constitutes a waiver or modification of any employee's rights under the Wage Claim Act. Morris v. Towers Fin. Corp., 916 P.2d 678 (Colo. App. 1996).
The plain meaning of this section is that an agreement to arbitrate that conflicts with the rights established by the Wage Claim Act cannot be enforced against the employee. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).
The supremacy clause governs when the Federal Arbitration Act (FAA) applies to an employment contract and requires arbitration even in a Colorado Wage Claim Act (CWCA) claim despite the firm state policy that CWCA claims should not be subject to arbitration. Where a contract containing an arbitration clause evidences a transaction involving commerce, the FAA applies and the agreement to arbitrate must be enforced. Grohn v. Sisters of Charity Health, 960 P.2d 722 (Colo. App. 1998); Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771 (Colo. App. 2000).
The FAA preempts this section to the extent that an agreement to arbitrate a dispute relating to employee compensation is not void and that public policy is not thereby offended. Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771 (Colo. App. 2000).
This section does not create a substantive entitlement to payment independent of an employment agreement; therefore an employment agreement that states that accrued but unused vacation pay is not payable if the employee is fired or fails to give two weeks notice does not violate the CWCA. Nieto v. Clark's Market, 2019 COA 98 , __ P.3d __.
Since Wage Claim Act does not create a substantive right to compensation for labor and services performed, employee's right to compensation is governed by the employment agreement and not by the statute; therefore, employment contract is not void under this section. Barnes v. Van Schaack Mortg., 787 P.2d 207 (Colo. App. 1990).
Arbitration provision in an employment contract that denies the employee the right to a timely civil action in a Colorado court pursuant to § 8-2-123 is void. Lambdin v. Dist. Ct. of Arapahoe Ct., 903 P.2d 1126 (Colo. 1995).