Nieto v. Clark's Mkt., Inc.

• Decision Date: 14 June 2021
• Docket Number: Supreme Court Case No. 19SC553
• Citation: 488 P.3d 1140
• Court: Colorado Supreme Court
• Parties: Carmen NIETO, Petitioner, v. CLARK'S MARKET, INC., Respondent.

488 P.3d 1140

Carmen NIETO, Petitioner,

v.CLARK'S MARKET, INC., Respondent.

Supreme Court Case No. 19SC553

Supreme Court of Colorado.

June 14, 2021

Attorneys for Petitioner: Albrechta & Albrechta, LLC, Eleni K. Albrechta, David T. Albrechta Durango, Colorado, Swain Law, LLC, Hunter A. Swain Denver, Colorado

Attorneys for Respondent: Bechtel Santo & Severn, Michael C. Santo, Grand Junction, Colorado

Attorneys for Amici Curiae Colorado Civil Justice League, Denver Metro Chamber of Commerce, and National Federation of Independent Business: Husch Blackwell LLP, Christopher L. Ottele, Stacey M. Bowman Denver, Colorado

Attorneys for Amicus Curiae Colorado Department of Labor and Employment, Division of Labor Standards and Statistics: Philip J. Weiser, Attorney General, John August Lizza, First Assistant Attorney General, Denver, Colorado

Attorneys for Amicus Curiae Colorado Plaintiff Employment Lawyers Association: Law Office of Susan R. Hahn LLC, Susan R. Hahn, Littleton, Colorado Law Office of David Lichtenstein, LLC, David Lichtenstein, Denver, Colorado Jester Gibson & Moore, LLP, Brian T. Moore, Rachel Tumin, Denver, Colorado

En Banc

JUSTICE HART delivered the Opinion of the Court.

¶1 In 2003, the General Assembly added subsection 8-4-101(14)(a)(III), C.R.S. (2020), of the Colorado Wage Claim Act ("CWCA") to expressly define "vacation pay" as a type of protected wages and compensation. Today, for the first time since its adoption, we address the meaning of subsection (14)(a)(III) and its relationship with other provisions of the CWCA head on.

¶2 When Clark's Market, Inc. ("CMI") terminated its longtime employee, Carmen Nieto, it declined to pay Nieto any of her accrued but unused vacation pay, citing its policy that an employee who is "discharged for any reason or do[es] not give proper notice ... will forfeit all earned vacation pay benefits." Nieto argues that CMI's policy requiring forfeiture of her earned vacation pay violates the CWCA.

¶3 We conclude that, although the CWCA does not entitle an employee to vacation pay, when an employer chooses to provide it, such pay is no less protected than other wages or compensation and, thus, cannot be forfeited once earned. Accordingly, under the CWCA, all vacation pay that is earned and determinable must be paid at the end of the employment relationship, see §§ 8-4-101(14)(a)(III), - 109(1)(a), C.R.S. (2020), and any term of an agreement that purports to forfeit earned vacation pay is void, see § 8-4-121, C.R.S. (2020). Because the court of appeals erred in concluding otherwise, we reverse.

I. Facts and Procedural History

¶4 Nieto worked at CMI for eight-and-a-half years until she was fired in March 2017. During that time, she earned vacation pay in accordance with the policy in CMI's employee handbook. According to Nieto, at the time of her termination, she had accumulated at least 136 hours of unused paid vacation, worth a total of $2,244.00.

¶5 Under CMI's policy, "vacation time is earned during the anniversary year previous to [when] it is actually taken," and the amount earned each year "is based on ... length of employment," as delineated in the policy. Additionally, the policy specifies that "[v]acation time cannot be carried over from year to year" and "must be taken in the twelve- (12) month period following the date it is earned."¹ And, central to this appeal, the policy includes a clause forfeiting unused vacation pay upon separation:

In the event you voluntarily leave Clark's Market and give at least two (2) weeks written notice, you will receive vacation benefits earned as of your last anniversary date but not taken by the date of separation. ... If you are discharged for any reason or do not give proper notice, you will forfeit all earned vacation pay benefits.

¶6 In light of the forfeiture clause, CMI did not include Nieto's accrued but unused vacation pay in her final paycheck, and it refused her written demand for payment. See § 8-4-109(3). Nieto then sued CMI for withholding her vacation pay, asserting that subsection (14)(a)(III) required CMI to "pay upon separation from employment all vacation pay earned and determinable in accordance with the [employee handbook]" and that the forfeiture clause purporting to waive her right to such payment was void under section 8-4-121 of the CWCA.

¶7 CMI moved to dismiss Nieto's complaint under C.R.C.P. 12(b)(5) for failure to state a claim, and the district court granted the motion. The court reasoned that because the CWCA "clearly and unambiguously gives employers the right to enter into agreements with its employees regarding vacation pay," CMI's forfeiture clause was valid and Nieto was thus "not entitled to any accrued vacation pay."

¶8 Nieto appealed, and a division of the court of appeals affirmed. The division ultimately concluded that, because CMI fired Nieto, her vacation pay—despite being earned—had not "vested" under CMI's policy. See Nieto v. Clark's Market, Inc., 2019 COA 98, ¶ 17, ––– P.3d –––– ("Nieto's right to compensation for accrued but unused vacation pay depends on the parties' employment agreement. And that agreement unequivocally says that the vacation pay she seeks wasn't vested given the circumstances under which she left [CMI]'s employ.") (emphasis added). In reaching that conclusion, the division reasoned that the CWCA "creates [no] substantive right to payment for accrued but unused vacation time" and "merely ‘establishes minimal requirements concerning when and how agreed compensation must be paid.’ " Id. at ¶ 11 (quoting Barnes v. Van Schaack Mortg., 787 P.2d 207, 210 (Colo. App. 1990) ).

¶9 Nieto then petitioned for certiorari review, which we granted.²

II. Analysis

¶10 After summarizing the applicable law, we consider whether, as the division held, vacation pay that is earned and determinable must also have "vested" to be covered by the CWCA. Because we disagree that vacation pay is subject to a separate vesting requirement, we then consider whether forfeiture of earned vacation pay is otherwise permitted by the CWCA. Because we deem subsection (14)(a)(III) ambiguous in that respect, we turn to other evidence of legislative intent. We review the statutory language and structure, the CWCA's remedial purpose, the statute's legislative history, and the relevant agency interpretation to conclude that the CWCA prohibits forfeiture of earned vacation pay. Consequently, when an employer chooses to provide vacation pay to its employees, an employee is entitled to receive all that is earned but still unpaid upon separation from employment, and any agreement purporting to forfeit earned vacation pay is void. And because Nieto's complaint therefore should not have been dismissed, we reverse the judgment below and remand for further proceedings.

A. Applicable Law

1. Standard of Review and Principles of Statutory Interpretation

¶11 We review de novo whether the district court properly dismissed a complaint for failure to state a claim. Norton v. Rocky Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7, 409 P.3d 331, 334. Like the district court, we must accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff. Id. In evaluating the sufficiency of the complaint, we may also consider any documents, such as CMI's employee handbook here, that are attached as exhibits or incorporated by reference. See id.

¶12 Questions of statutory interpretation are also subject to de novo review. Mook v. Bd. of Cnty. Comm'rs, 2020 CO 12, ¶ 24, 457 P.3d 568, 574. When interpreting a statute, our primary aim is to effectuate the legislature's intent. Bill Barrett Corp. v. Lembke, 2020 CO 73, ¶ 14, 474 P.3d 46, 49. To do so, "we look to the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings." Id. (quoting Blooming Terrace No. 1, LLC v. KH Blake St., LLC, 2019 CO 58, ¶ 11, 444 P.3d 749, 752 ). "[W]e do not add words to or subtract words from a statute." People ex rel. Rein v. Meagher, 2020 CO 56, ¶ 22, 465 P.3d 554, 560. And where the plain language is unambiguous, we apply the statute as written. Delta Air Lines, Inc. v. Scholle, 2021 CO 20, ¶ 13, 484 P.3d 695, 699.

¶13 However, where a statute is ambiguous — that is, reasonably susceptible to more than one interpretation —we turn to other interpretive aids to discern the legislature's intent. Lewis v. Taylor, 2016 CO 48, ¶ 27, 375 P.3d 1205, 1210. Among these interpretive aids, we include the language and structure of the statute, any relevant legislative history, and any reasonable interpretation of the statute by an enforcing agency. See § 2-4-203, C.R.S. (2020); Gallion v. Colo. Dep't of Revenue, 171 P.3d 217, 221-22 (Colo. 2007).

2. The CWCA

¶14 The CWCA is a comprehensive statutory scheme designed to ensure the payment of employees' earned wages in a timely manner. Cagle v. Mathers Fam. Tr., 2013 CO 7, ¶ 36, 295 P.3d 460, 469. "Although the General Assembly has amended the [CWCA] periodically, its basic design has endured since its adoption in 1901." Leonard v. McMorris, 63 P.3d 323, 328 (Colo. 2003). Among other things, it requires that an employer shall: (1) pay its employees at regular intervals, § 8-4-103(1)(a), C.R.S. (2020); (2) not make a deduction from an employee's wages unless permitted by one of the statutory exceptions, § 8-4-105(1), C.R.S. (2020); and (3) pay, upon separation from employment, all earned but unpaid compensation within a prescribed timeframe, § 8-4-109. To effectuate these requirements, the CWCA imposes various penalties for employers' violations and offers multiple mechanisms for its enforcement. E.g., § 8-4-109(3)(b)-(c) (civil penalties and private right of action); § 8-4-111, C.R.S. (2020) (agency enforcement); § 8-4-113, C.R.S. (2020) (fines); § 8-4-114, C.R.S. (2020) (criminal penalties). Additionally, the CWCA nullifies any effort to circumvent its...