United States District Court, D. Colorado
ADOLFO HERNANDEZ, ROGELIO FLORES-ESCOBAR, FRANCISCO SILVA-GARCIA, MARTIN PEREZ-MEDEL, GUSTAVO ARELLANO- LMOS, LUIS LEON-SALINAS, and MANUEL MORALES, Plaintiffs,
RAY DOMENICO FARMS, INC., GREGORY L. DOMENICO, and THERESA M. DOMENICO, Defendants.
ORDER RESOLVING PENDING MOTIONS AND SUA
SPONTE CERTIFYING QUESTION OF LAW TO THE COLORADO
William J. Martinez United States District Judge.
employee is fired in Colorado, does the Colorado Wage Claim
Act (“CWCA”), Colo. Rev. Stat. §§
8-4-101 to -123, authorize that employee to sue for all
past-due wages owed regardless of how long ago those wages
should have been paid, and regardless of whether the statute
of limitations has run on the cause of action that the
employee normally would bring to recover those wages? This
case presents that question, and the authorities-up to now,
all of them federal-are divided.
matter affects all employers and employees in Colorado. It is
also the sort of thing that tends to evade Colorado
state-court review indefinitely, given that CWCA claims are
nearly always brought in the same lawsuit as a claim under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq., thus invoking this
Court's original jurisdiction. For these reasons and
additional reasons explained below, the Court sua
sponte certifies the question to the Colorado Supreme
BACKGROUND & SUMMARY OF RULING
lawsuit, Plaintiffs Adolfo Hernandez, Rogelio Flores-Escobar,
Francisco Silva-Garcia, Martin Perez-Medel, Gustavo
Arellano-Olmos, Luis Leon-Salinas, and Manuel Morales
(together, “Plaintiffs”) sue their former
employer, Ray Domenico Farms, Inc. (“Domenico
Farms”), and two of its principals, Gregory L.
Domenico, and Teresa M. Domenico (together with Domenico
Farms, “Defendants”), for various alleged
violations of the FLSA, the CWCA, and the Migrant and
Seasonal Agricultural Worker Protection Act (specifically, 29
U.S.C. §§ 1821(a), 1822(a) & (c), and 1855(a)),
as well as for simple breach of contract and unjust
enrichment. (See ECF No. 27.)
federal statutory causes of action are the bulk of
Plaintiffs' fourteen claims for relief. But the
“real money, ” so to speak, appears to be in the
CWCA causes of action (Counts XI & XII), through which
Plaintiffs seek to recover all unpaid wages going back to the
beginning of their various employment relationships with
Defendants-in some cases, back to 1992. This is something the
FLSA, by itself, would not permit. See 29 U.S.C.
§ 255(a) (two- or three-year statute of limitations).
before the Court are the parties' early cross-motions for
partial summary judgment disputing whether the CWCA permits
such an indefinite “lookback” for unpaid wages,
in contrast to the normal statute of limitations that (like
the FLSA) requires an employee to sue within two or three
years of going unpaid, depending on the circumstances.
(See ECF No. 23 (Defendants' motion); ECF No. 25
(Plaintiffs' motion).) In light of the Court's
decision to certify the question, the Court denies both
motions without prejudice.
before the Court is Defendants' Motion to Partially
Dismiss Plaintiffs' Eleventh Count Against Defendants
Pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 33.) This motion
presents an alternative, federal-law basis for limiting
Plaintiffs' CWCA lookback to two or three years. For the
reasons explained below, the Court denies this motion as
following facts are undisputed for purposes of this motion,
unless attributed to one party or the other.
Farms is a Colorado corporation headquartered in Platteville,
Colorado. (ECF No. 27 ¶ 19.) Domenico Farms grows
organic vegetables. (Id. ¶ 38.) For many years,
Domenico Farms has employed year-round workers, seasonal
migrant workers, and temporary foreign workers brought to
Colorado from Mexico through the H-2A visa program.
(Id. ¶ 40.) All of the Plaintiffs in this
action were either year-round workers or seasonal migrant
workers. (Id. ¶¶ 44, 46.) They were all
paid by the hour. (Id. ¶ 42.) Their claimed or
undisputed periods of employment with Domenico Farms are as
• Plaintiffs Leon-Salinas, Morales, and Perez-Medel all
claim to have been employed as seasonal workers “from
April 1992 through approximately April 2016.”
(Id. ¶¶ 14, 16, 17.)
• Plaintiff Arellano-Olmos claims to have been employed
as a seasonal worker “from approximately April 1997
through approximately 2004 and again on or around April 2005
through approximately April 2016.” (Id. ¶
• Plaintiff Hernandez worked for Domenico Farms from
October 24, 2001, to March 25, 2016. (ECF No. 25 at 2, ¶
• Plaintiff Flores-Escobar worked for Domenico Farms
from June 12, 2009, to March 25, 2016. (Id. ¶
• Plaintiff Silva-Garcia worked for Domenico Farms
“between 1999 and March 25, 2016.” (Id.
allege they never received overtime pay during their
employment. (ECF No. 27 ¶ 84.) Agricultural workers are
normally exempt from the FLSA's overtime requirements.
See generally 29 C.F.R. part 780. Plaintiffs claim,
however, that Domenico Farms employed them in
non-agricultural tasks, and did so in weeks in which they
worked more than forty hours, thus requiring Domenico Farms
to pay overtime. (See ECF No. 27 ¶¶ 75-88,
98-106.) The Plaintiffs who worked seasonally also claim they
were denied the straight-time wage they should have received
under the Migrant and Seasonal Agricultural Worker Protection
Act. (Id. ¶¶ 50-74, 129-87.)
January 2016, Plaintiffs contacted Defendants to assert that
they had been denied rightful compensation. (Id.
¶¶ 89, 95.) According to Plaintiffs, Defendants
then “undertook a self-imposed, internal audit of work
authorization documents, ” through which they
“determined that the year-round worker Plaintiffs
lacked legal authority to be employed.” (Id.
¶¶ 90, 91.) The year-round Plaintiffs say they were
terminated in March 2016 in retaliation for asserting their
rights. (Id. ¶¶ 93-94.) The seasonal
workers allegedly suffered the same fate the following month.
(Id. ¶¶ 14-17, 95-97.)
Relevant Statutory Language
parties' competing summary judgment motions turn on the
interaction of two portions of the CWCA, namely, Colo. Rev.
Stat. § 8-4-103(1)(a) (for ease of reading,
“§ 103”) and Colo. Rev. Stat. §
8-4-109(1)(a) (“§ 109”). Section 103
establishes that earned wages and other compensation usually
become “due and payable” ten days after the end
of a pay period:
All wages or compensation, other than those mentioned in
section 8-4-109 [i.e., § 109], earned by any
employee in any employment, other than [those due under a
deferred compensation plan], shall be due and payable for
regular pay periods of no greater duration than one calendar
month or thirty days, whichever is longer, and on regular
paydays no later than ten days following the close of each
pay period unless the employer and the employee shall
mutually agree on any other alternative period of wage or
Section 109, for its part, applies “[w]hen an
interruption in the employer-employee relationship by
volition of the employer occurs” (generally, when the
employer terminates the employee) and makes “wages or
compensation for labor or service earned, vested,
determinable, and unpaid at the time of such discharge . . .
due and payable immediately.”
until 2003, § 103 had been codified two sections later
in the statute, i.e., at § 8-4-105; and §
109 had been codified five sections earlier, i.e.,
at § 8-4-104. See 2003 Colo. Legis. Serv. ch.
286, § 1 (H.B. 03-1206). Along with the re-codification,
§ 103's “other than those mentioned in”
cross-reference was amended to keep it connected to what had
been § 104 and was now codified at § 109.
Id. In other words, the only textual difference
between the pre-amendment and post-amendment versions of
§ 103 was a single digit (changing a 4 to a 9). As for
§ 109, the phrase “vested, determinable, ”
was inserted. Id. The significance of these
amendments will be discussed in detail below.
Court notes two other portions of the CWCA relevant to the
present dispute. First, § 8-4-110(2) provides that
“[a]ny 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.” Second, § 8-4-122
(“§ 122”) requires that “[a]ll actions
brought pursuant to [the CWCA] shall be commenced within two
years after the cause of action accrues and not after that
time; except that all actions brought for a willful violation
of this article shall be commenced within three years . . .
parties here agree that (1) § 103 and § 109 each
create a cause of action under the CWCA, (2) each is governed
by the two- or three-year statute of limitations stated in
§ 122, and (3) the wages one may sue for under the CWCA
include compensation to which one is entitled by statute,
such as FLSA overtime pay. The parties disagree over whether
§ 109 encompasses all unpaid compensation that had
accrued up to the point of termination, including unpaid
amounts that accrued more than two (or three) years prior; or
whether § 109 applies only to the amounts owed for the
employee's final pay period, and § 103 governs all
prior compensation. Stated differently, the question is
whether § 109 revives injuries for which the employee
could no longer sue under § 103.
Effect of FLSA Statute of Limitations
the Court reaches that question directly, it must address an
argument raised in Defendants' Motion to Dismiss that
could moot the question. Defendants' argument begins with
the proposition that the CWCA creates no substantive right to
wages. (See ECF No. 33 at 4-5.) Rather, it
establishes standards that employers must follow when paying
wages, and remedies for employees who have not been timely
paid. But the right to the wages must come from some other
source, such as an employment contract or a statute.
Plaintiffs agree: “[The CWCA] does not supply the
substantive right to the overtime compensation Plaintiffs
seek-the Fair Labor Standards Act does.” (ECF No. 40 at
established this premise, Defendants further argue that
“any ‘earned, vested, and determinable' wages
due to Plaintiffs under [§ 109] are limited by what is
recoverable under the FLSA.” (ECF No. 33 at 5.) By
this, Defendants mean that the FLSA's statute of
limitations is incorporated into § 109. The FLSA's
statute of limitations, like the statute of limitations in
the CWCA (§ 122), is normally two years, but can be
extended to three upon a showing of willfulness:
Any action . . . to enforce any cause of action for unpaid
minimum wages, unpaid overtime compensation, or liquidated
damages, under the Fair Labor Standards Act * * * shall be
forever barred unless commenced within two years after the
cause of action accrued, except that a cause of action
arising out of a willful ...