CO Code § 8-4-110 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 4 - Wages|§ 8-4-110. Disputes - Fees

  If, in any action, the employee fails to recover a greater sum than the amount tendered by the employer, the court may award the employer reasonable costs and attorney fees incurred in such action when, in any pleading or other court filing, the employee claims wages or compensation that exceed the greater of seven thousand five hundred dollars in wages or compensation or the jurisdictional limit for the small claims court, whether or not the case was filed in small claims court or whether or not the total amount sought in the action was within small claims court jurisdictional limits. If, in any such action in which the employee seeks to recover any amount of wages or compensation, the employee recovers a sum greater than the amount tendered by the employer, the court may award the employee reasonable costs and attorney fees incurred in such action. If an employer fails or refuses to make a tender within fourteen days after the demand, then such failure or refusal shall be treated as a tender of no money for any purpose under this article. (1.5) This section shall not apply to a claimant who is found to be an independent contractor and not an employee.    Any person claiming to be aggrieved by violation of any provisions of this article or regulations prescribed pursuant to this article may file suit in any court having jurisdiction over the parties without regard to exhaustion of any administrative remedies.     History. Source: L. 2003: Entire article amended with relocations, p. 1858, § 1, effective August 6. L. 2007: (1) amended and (1.5) added, p. 1678, § 3, effective May 31.    Editor's note:   Subsection (2) is similar to former § 8-4-123 as it existed prior to 2003.   Cross references:   For the legislative declaration contained in the 2007 act amending subsection (1) and enacting subsection (1.5), see section 1 of chapter 381, Session Laws of Colorado 2007.   ANNOTATION   Annotator's note. Since § 8-4-110 is similar to § 8-4-123 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.   Arbitration provision in an employment contract that denied the employee the right to a timely civil action pursuant to this section in a Colorado court is void. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).   This section explicitly creates a civil remedy to enable employees to pursue their claims for past due wages. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).   Award of attorney fees is not conditioned on finding that claim was “frivolous”. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).   Guidelines for exercise of court's discretion to award attorney fees under subsection (1) require consideration of all relevant circumstances, including 10 factors specifically listed. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).   A prevailing employee is presumptively entitled to an award of attorney fees. Lester v. Career Bldg. Acad., 2014 COA 88 , 338 P.3d 1054.   Any entity or person who creates and maintains an employment relationship for the payment of wages is subject to the Colorado Wage Claim Act (CWCA); an employer's inability to pay is irrelevant to the determination of attorney fee awards under the CWCA. Lester v. Career Bldg. Acad., 2014 COA 88 , 338 P.3d 1054.   “Discretion” does not imply a complete lack of standards. When awarding attorney fees, the court is required to make sufficient findings to permit meaningful appellate review. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).   Denial of a $2,000 “per diem courtesy” for a witness, as an item of costs, was within the court's discretion. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).   Denial of attorney fees incurred on appeal was permissible where defendant did not fully prevail on its challenge to the trial court's award of attorney fees and costs. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).   Where plaintiff is determined not to have been an “employee” but an independent contractor, award of attorney fees to defendant is proper. Voller v. Gertz, 107 P.3d 1129 (Colo. App. 2004) (decided under former § 8-4-114 ).   Where defendant prevails solely because the trier of fact determines that plaintiff was not an “employee”, but was instead an independent contractor, an award of attorney fees to defendant is improper. Mahan v. Capitol Hill Internal Med. P.C., 151 P.3d 685 (Colo. App. 2006) (following Hyland v. Pikes Peak Capital Corp., 714 P.2d 914 (Colo. App. 1985) and declining to follow Voller v. Gertz, 107 P.3d 1129 (Colo. App. 2004)) (all decided under former § 8-4-114 prior to its repeal in 2003).   The supremacy clause governs when the Federal Arbitration Act (FAA) applies to an employment contract and requires arbitration even in a 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).