The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 26, 2020
2020COA52
No. 19CA0059, HCA-HealthONE v. Colo. Dept. of Labor and
Employment — Labor and Industry — Colorado Minimum Wage
Order
A division of the court of appeals considers whether the
Colorado Minimum Wage Order Number 35 (MWO) entitled a
hospital employee to compensation during designated meal periods.
The division holds that the MWO is not ambiguous and its plain
language provides that a meal period is compensable unless it is
both “uninterrupted” and “duty free” — which means completely
relieved of all duties. Because the record shows that the employee
had duties during some meal periods at issue, the division holds
that the employee was entitled to compensation for those particular
meal periods. Therefore, the division affirms in part, reverses in
part, and remands for further proceedings.
COLORADO COURT OF APPEALS 2020COA52
Court of Appeals No. 19CA0059
City and County of Denver District Court No. 17CV31608
Honorable Jennifer B. Torrington, Judge
HCA-HealthONE LLC, d/b/a North Suburban Medical Center,
Plaintiff-Appellant,
v.
Colorado Department of Labor and Employment, Division of Labor Standards
and Statistics,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE NAVARRO
Dailey and Miller*, JJ., concur
Announced March 26, 2020
Brownstein Hyatt Farber Schreck, LLP, Lisa Hogan, Carrie E. Johnson, Martine
T. Wells, Craig M. Finger, Denver, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Evan P. Brennan, Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee
Polsinelli PC, Gerald Niederman, Bennett Cohen, Gillian Bidgood, Denver,
Colorado, for Amicus Curiae Colorado Hospital Association
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Plaintiff, HCA HealthONE LLC, d/b/a North Suburban Medical
Center (the Hospital), appeals the district court’s order affirming the
final agency decision holding that the Hospital owed wages and
penalties to a former employee for work she performed during
designated meal periods. The decision, issued by defendant, the
Colorado Department of Labor and Employment, Division of Labor
Standards and Statistics (the Division), determined that those
periods were compensable under the Colorado Minimum Wage
Order Number 35, 7 Code Colo. Regs. 1103-1(7) (effective Jan. 1,
2020-Mar. 16, 2020), https://perma.cc/GA3G-4ZUP (MWO).
¶2 Addressing a novel question, we hold that the MWO is not
ambiguous and its plain language provides that a meal period is
compensable unless it is both “uninterrupted” and “duty free.”
Because the Division correctly interpreted the MWO, and because
the record supports the Division’s decision that the employee here
had duties during her meal periods (with the exception of one
timeframe), we affirm in part, reverse in part, and remand for
further proceedings.
1
I. Factual Background
¶3 The underlying agency action was initiated by the former
employee, the claimant and nominal party here, Lynne Witt.1
A. Witt’s Job Responsibilities
¶4 Witt worked twelve-hour shifts from 6:00 a.m. to 6:30 p.m. in
the Hospital’s freestanding emergency room laboratory from 2013 to
2016. As a laboratory medical technologist, she ran tests on
patient specimens, maintained analyzers, ran quality control,
logged in specimens, and conveyed critical results to caregivers.
¶5 The lab was staffed around the clock, seven days a week, so
that tests for acutely ill patients could be performed without delay.
During her shifts, the small team at the Hospital relied on Witt “for
everything regarding the laboratory; there [was] no other person to
go to.”
1Witt did not participate in the district court, nor has she
participated in this appeal. The Hospital does not assert any claims
against her; she was included as a nominal party pursuant to
section 24-4-106(4), C.R.S. 2019, because she was a party to the
agency action.
2
B. Meal Periods
¶6 In accordance with the Hospital’s policy, Witt took thirty-
minute meal periods. The duties and restrictions she had during
those periods led to her wage complaint.
1. The Hospital’s Meal Period Policy
¶7 The Hospital’s policy provided as follows:
Patient care needs permitting, meal periods
must be at least thirty (30) uninterrupted
minutes in duration and are scheduled for
employees working five (5) or more consecutive
hours. Employees must be relieved of all work
duties during the meal period. . . . Meal period
interruptions that are considered “de minimis”
will not be considered compensable time . . . .
....
Meal periods are considered unpaid time and
must be recorded in the timekeeping system.
Employees will not be compensated for meal
periods unless the meal is interrupted to
perform work-related duties. If a non-exempt
employee is interrupted, or misses a meal
period to perform work, the employee will be
paid for the entire scheduled meal period.
Interruptions which are considered de minimis
do not require full meal period payment. With
prior management approval, an employee may
consume an “on duty meal” while performing
duties outside of clinical or patient care areas.
The “on duty meal” time is paid.
3
¶8 To receive payment for missed or interrupted meals, employees
were instructed to clock in, notify their manager, and/or submit a
timekeeping adjustment form. Witt used the timekeeping system
on occasion to obtain compensation for interrupted meal periods.
None of those occasions is in dispute here.
2. Use of Witt’s Meal Periods
¶9 During her meal period, Witt could generally step out of the
lab, use the breakroom, watch TV, read, make personal calls, eat,
and rest. As she stated in her wage complaint, however, she was
the only laboratory technologist on duty during her shifts. So, Witt
was “basically ‘on call’” during meal periods. This meant she was
required to (1) carry the lab phone and respond to all lab calls;
(2) leave a sign at the lab instructing nurses to call her to return to
work when they would drop off a specimen; and (3) answer and
handle routine business calls for the lab, including answering
questions from doctors, nurses, and paramedics about lab tests,
equipment, and instruments.
¶ 10 Additionally, to ensure that Witt could promptly respond to
these tasks, and because the lab phone she carried did not work
outside of the building, she was not allowed the leave the Hospital
4
facility during her meal periods. Consequently, she could not
pursue personal activities like running errands, going for a walk, or
simply sitting at the picnic table just outside the facility.
II. Procedural History
A. Agency Action
1. Witt’s Wage Complaint
¶ 11 Witt filed a wage complaint with the Division on October 14,
2015, pursuant to section 8-4-111, C.R.S. 2019, seeking payment
from the Hospital for all meal periods for which she had not been
compensated.
¶ 12 Witt contended she was “on call” during her meal periods. She
said that Hospital management “insist[ed]” that she clock out for
meals and clock back in when she is interrupted. But, because
clocking back in led to overtime pay, and the Hospital “[did] not
want to pay” for overtime, managers “require[d]” her to try to take
another meal break later in the shift. According to Witt, that was
not practical because it would have required taking a meal break as
much as eight to ten hours after her shift began. Witt also
explained that she “did not want to give up her lunch break”
because
5
I’m very hungry by that point; it is my one
meal in the whole 12 and a half hours and I
need to eat that meal even if that means gulp
it down.
So I did not . . . if [an interruption] was
something I could handle in, you know, 1 to 15
minutes then I was not going to clock back in
to do that because I need to eat my food,
otherwise my hot food is going down the
kitchen sink or in the garbage can and that’s
my meal for the day. So I was not wanting to
give up that food break. It’s not a matter of
just sitting in the breakroom and watching
TV[,] it’s a matter of putting food in your
stomach so you don’t faint.
¶ 13 Witt further alleged that her managers had “threatened” her to
stop incurring overtime pay. According to Witt, her supervisor told
her that the Hospital’s meal period policy did not permit
compensation for minor interruptions, and that she must stop
clocking in when they occurred — that is, she must clock in again
only to conduct lab testing.
2. The Hospital’s Response
¶ 14 After Witt filed her complaint with the Division, the Hospital
worked with her to address her concerns. By the end of 2015, the
hospital implemented a new policy: Witt was no longer required to
carry a phone or respond to non-emergency calls during her meal
6
periods. Instead, a charge nurse would handle the phone and not
interrupt her meal periods absent a “life critical emergency.” After
this change, Witt believed the meal periods were “fair.” Hence, her
wage claim covered only meal periods between “October of ’13 to
December 30th of ’15 when they changed the policy.”
¶ 15 The Division notified the Hospital of Witt’s claim in writing on
January 28, 2016, solicited information for the investigation, and
informed the Hospital that the notice served as a written demand
for wages under section 8-4-111(5). After receiving an extension of
time, the Hospital responded on February 25, 2016.
¶ 16 Among other things, the Hospital asserted that “while it has
no reason to believe that Ms. Witt was not properly compensated,” it
had agreed to compensate her for “the meal periods she alleges that
she took (i.e., was not paid for) and that she alleges were
interrupted for pay periods ending 11/1/13 through 2/13/16 to
satisfy any concerns on this issue.” “[T]o fully resolve this matter,”
the Hospital paid Witt for all uncompensated meal periods in that
timeframe, which totaled 136.
7
3. The Citation
¶ 17 The Division’s compliance investigator issued a “Notice of
Determination and Enclosed Citation” (Citation) on December 14,
2016. After quoting the MWO, the Citation (1) credited evidence
that Witt was “regularly not paid for ‘on duty’ meal breaks” and had
to “remain on call” during the relevant meal period; (2) found that
the Hospital violated the MWO by not compensating her for all such
periods; and (3) concluded that she “should have been compensated
for all ‘on-duty’ meal breaks, whether she was interrupted or not.”
The Citation applied to meal periods through February 13, 2016.
¶ 18 The Citation also determined that the Hospital had paid all
wages owed by the time of the Citation. Yet, because the Hospital
had not paid those wages within fourteen days of the written
demand, the Citation advised the Hospital that it was required by
statute to pay a penalty to Witt. The compliance investigator
calculated this penalty to total $4210, but she exercised the
Division’s statutorily granted discretion to reduce the penalty by
50 percent (the maximum amount) because the Hospital had paid
Witt the wages due before the Citation.
8
4. The Hearing and The Decision
¶ 19 The Hospital appealed the Citation through the administrative
process, asserting that the Division had misinterpreted the MWO
and had applied an unwritten rule in violation of the State
Administrative Procedure Act (APA), §§ 24-4-101 to -108, C.R.S.
2019. A Division hearing officer held a hearing, at which Witt
testified as well as the Hospital’s Director of Laboratory Services
and Vice-President for Human Resources.
¶ 20 After receiving the evidence, the hearing officer issued a
lengthy “Decision and Order” (Decision), agreeing that Witt’s meal
periods at issue were compensable under the MWO. In particular,
the hearing officer concluded that they were compensable under a
“stringent” reading of the MWO’s terms as well as under the more
lenient “predominant benefit test” used by some federal courts
when considering a federal regulation related to the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 201-219 (2018). (The Hospital
had advocated for the federal test.)
¶ 21 The Decision principally concluded that (1) “Witt was engaged
in substantial work-related activities during her meal periods”;
(2) the record showed that she was “on duty (in other words that
9
her meal breaks were not uninterrupted and duty free) during her
meal periods”; and (3) and the compliance investigator had engaged
in adjudication, not rulemaking, when resolving Witt’s claim.
B. Judicial Review
¶ 22 The Hospital sought judicial review of the Decision in the
district court. Affirming the Decision, the court ruled that (1) “in its
application of the plain language of the Wage Claim Act and MWO,
the Division did not apply an erroneous legal standard, nor did it
act arbitrarily and capriciously, nor contrary to any statutory or
constitutional right”; (2) “the Division did not err in determining
that Ms. Witt’s meal periods constituted compensable on-duty meal
periods under the MWO” and “the Division based its Decision on
sufficient competent evidence”; (3) the Hospital failed to overcome
the presumption favoring the regularity and validity of
administrative proceedings and favoring the Division when resolving
any reasonable doubts; (4) the Decision “is consistent with the
relevant statutory and regulatory language and abides by the
applicable statutory scheme (e.g. the [Wage Claim] Act and MWO)”;
and, therefore, (5) there was no basis for setting aside the Decision.
10
III. Did the Division Err in its Interpretation
and Enforcement of the MWO?
¶ 23 On appeal to this court, the Hospital contends that the
Division applied an erroneous interpretation of the MWO. The
Hospital maintains that the MWO is ambiguous and, therefore, we
should rely on federal authority construing a FLSA regulation.
Doing so, the Hospital says, leads to the conclusion that Witt’s meal
periods were not compensable.
¶ 24 The Hospital has presented thoughtful points. Still, with one
exception, we are not persuaded to set aside the Decision. Instead,
we conclude that, under the MWO’s plain terms, Witt’s meal periods
at issue were compensable. Hence, it is neither necessary nor
appropriate to rely on federal law. With respect to one timeframe
(January to February 2016), however, we reverse and remand
because the Decision did not adequately address whether the meal
periods were compensable.
A. Legal Framework
¶ 25 The General Assembly has empowered the Division to
promulgate regulations, among them wage orders. Brunson v. Colo.
Cab Co., LLC, 2018 COA 17, ¶ 13; see § 24-1-121(1), C.R.S. 2019.
11
One such regulation, the MWO, implements the Colorado Wage
Claim Act, §§ 8-4-101 to -123, C.R.S. 2019, and regulates the
wages, hours, working conditions, and procedures for certain
employers. See Brunson, ¶¶ 3, 13.
¶ 26 The MWO has been amended over time, but not in a manner
relevant here. The pertinent MWO provision states:
Employees shall be entitled to an
uninterrupted and “duty free” meal period of at
least a thirty minute duration when the
scheduled work shift exceeds five consecutive
hours of work. The employees must be
completely relieved of all duties and permitted
to pursue personal activities to qualify as a
non-work, uncompensated period of time.
When the nature of the business activity or
other circumstances exist that makes an
uninterrupted meal period impractical, the
employee shall be permitted to consume an
“on-duty” meal while performing duties.
Employees shall be permitted to fully consume
a meal of choice “on the job” and be fully
compensated for the “on-duty” meal period
without any loss of time or compensation.
Colo. Minimum Wage Order No. 35, 7 Code Colo. Regs. 1103-1(7).
B. Standard of Review
¶ 27 When considering the Decision, we apply the same standard of
review applied by the district court. Gessler v. Grossman, 2015
COA 62, ¶ 38, aff’d, 2018 CO 48. That is, “review is limited to the
12
decisions of the hearing officer and the [agency].” Marshall v. Civil
Serv. Comm’n, 2016 COA 156, ¶ 10. Our task is a limited one — we
may not reweigh the evidence before the Division. See Bd. of Cty.
Comm’rs v. O’Dell, 920 P.2d 48, 53 (Colo. 1996); Stor-N-Lock
Partners # 15, LLC v. City of Thornton, 2018 COA 65, ¶ 22.
¶ 28 Judicial review of the agency action in this case is governed by
section 24-4-106. As relevant to the Hospital’s claims, a reviewing
court may set aside an agency action if it is arbitrary or capricious,
in excess of statutory authority, not in accord with the procedures
or procedural limitations of the APA or as otherwise required by
law, an abuse or clearly unwarranted exercise of discretion,
unsupported by substantial evidence, or otherwise contrary to law.
§ 24-4-106(7)(b); see Rocky Mountain Retail Mgmt., LLC v. City of
Northglenn, 2017 CO 33, ¶ 29.
C. Analysis
1. Interpretation of the MWO
¶ 29 We review administrative regulations de novo. Brunson, ¶ 10.
“Our primary task in this review is to give effect to the promulgating
body’s intent.” Id. In construing a regulation, we apply the same
rules of construction that we would apply in interpreting a statute.
13
Id. As with a statute, if the regulation’s language is clear and
unambiguous, we do not resort to other rules of construction. Id.
¶ 30 In the absence of a statutory or regulatory definition, we
construe a term according to its ordinary or natural meaning. See
Cowen v. People, 2018 CO 96, ¶ 14 (construing a statute). When
determining the plain and ordinary meaning of words, we may
consider a definition in a recognized dictionary. Id. (citing a case
that relied on Black’s Law Dictionary).
¶ 31 As noted, the MWO defines a non-compensable meal period as
one that is “uninterrupted and ‘duty free.’” Colo. Minimum Wage
Order No. 35, 7 Code Colo. Regs. 1103-1(7). If that were not clear
enough, the MWO states further that “employees must be completely
relieved of all duties and permitted to pursue personal activities to
qualify as a non-work, uncompensated period of time.” Id.
(emphasis added). Therefore, if an employee has a duty to the
employer during the period at issue, the period is compensable.
¶ 32 A “duty” is a “legal obligation that is owed or due to another
and that needs to be satisfied; that which one is bound to do, and
for which somebody else has a corresponding right.” Black’s Law
Dictionary 637 (11th ed. 2019). The Hospital’s counsel at oral
14
argument in this appeal agreed that, under this definition, Witt had
duties during her meal periods (e.g., she had to respond to phone
calls to the lab). See also Webster’s Third New International
Dictionary 705 (1969) (“Duty” includes “obligatory tasks, conduct,
service, or functions enjoined by order or usage according to . . .
occupation or profession.”).2
¶ 33 Even so, the Hospital contends that the MWO’s language is
ambiguous because “duty” and “duties” are susceptible of more
than one interpretation. The Hospital posits that “duties” in this
context could mean either “(1) those primary tasks which the
employee was hired to perform (here, lab testing) or (2) any ancillary
work-related activity (here, carrying a phone and remaining on
site).”3 Given this alleged ambiguity in the MWO, the Hospital urges
us to apply the predominant benefit test used by some federal
courts when interpreting federal law pertaining to employee meal
breaks under the FLSA. See, e.g., Castaneda v. JBS USA, LLC, 819
2 We except the meal periods in 2016 from this conclusion, for
reasons we will discuss later in the opinion.
3 Additionally, the Hospital asks us to consider the phrase “on-call
meal periods,” which the Hospital encloses in quotation marks. But
that phrase is not in the MWO.
15
F.3d 1237, 1253 (10th Cir. 2016). The predominant benefit test
asks whether the employee is primarily engaged in work-related
duties such that the meal time is spent predominantly for the
employer’s benefit. Id.
¶ 34 Nothing in the plain meaning of the term “duty,” however,
suggests a distinction between “primary” obligations and “ancillary”
obligations. If the employee is obligated to perform the task —
subject to possible discipline if he or she refuses — the task is a
duty. Indeed, at least one federal court has agreed with this strict
reading of the MWO. See Sobolewski v. Boselli & Sons, LLC, 342 F.
Supp. 3d 1178, 1185 (D. Colo. 2018). Rejecting the predominant
benefit test, the court recognized that the MWO provides a
“completely relieved of all duties” standard. Id. We too do not
discern ambiguity in the MWO, especially given that such a
stringent standard is consistent with Colorado law. “Colorado
provides more employee protection than does federal law, and the
Department has published clear persuasive evidence of its intent to
provide greater protections than those provided under the [FLSA].”
Brunson, ¶ 5. As a result, we have no reason to consult other
16
interpretative aids, such as some federal courts’ view of allegedly
analogous federal regulations.
¶ 35 Finally, the concerns raised by the Hospital do not convince us
that applying the MWO’s plain language will lead to absurd results.
Cf. City of Westminster v. Dogan Constr. Co., 930 P.2d 585, 590
(Colo. 1997) (“Words and phrases should be given effect according
to their plain and ordinary meaning, and ‘we must choose a
construction that serves the purpose of the legislative scheme, and
must not strain to give language other than its plain meaning,
unless the result is absurd.’”) (citation omitted). The Hospital
points out that the MWO applies only to private — not public —
hospitals. See Colo. Minimum Wage Order No. 35, 7 Code Colo.
Regs. 1103-1(2) (excluding government employers from definition of
employer). So, the Hospital argues that adopting a strict
completely-relieved-of-all-duties interpretation of the MWO would
lead to the “discordant” and “absurd result of public hospital
employees being paid less than private employees for performing
exactly the same job, or public employees receiving an unpaid break
and private employees being paid to work through their lunches.”
17
¶ 36 Yet, the legislature has also chosen to distinguish between
public and private employers when it comes to wages. See, e.g.,
§ 8-4-101(6), C.R.S. 2019. That is a quintessential policy choice.
In fact, the Hospital recognizes that, in certain contexts, “a sound
policy consideration may conceivably exist for differential
treatment.” We leave to the legislature and the Division the policy
decision whether the result posited by the Hospital here is likely,
new, or desirable. Cf. Rare Air Ltd., LLC v. Prop. Tax Adm’r, 2019
COA 134, ¶ 16 (“Judicial deference to an agency’s interpretation of
a statute ‘is appropriate when the statute before the court is subject
to different reasonable interpretations and the issue comes within
the administrative agency’s special expertise.’” (quoting Huddleston
v. Grand Cty. Bd. of Equalization, 913 P.2d 15, 17 (Colo. 1996))).
¶ 37 For the same reason, we decline to reject a plain language
interpretation of the MWO on the ground that applying the federal
predominant benefit test might be a good idea. The Hospital says
that only this federal test “appropriately balances protecting
employees with the operational realities of workplaces” and fits “the
policy concerns and factual realities of the modern workplace —
where thirty-minute meal periods are inherently limited, and
18
employees are almost always subject to potential work-related
interruptions.” In response, the Division contends that the MWO’s
plain terms incorporate the flexibility the Hospital desires by
allowing an employer not to give an employee a duty-free meal
break but only an on-duty meal period, for which the employee
must be compensated. We do not wade into this debate. We simply
apply the MWO’s plain language and leave to the policymakers the
question whether the MWO appropriately accommodates “the
modern workplace.”
2. Witt’s Pre-2016 Meal Periods
¶ 38 Having decided that the Division did not err by applying the
MWO’s plain language, we next consider whether the Division
abused its discretion given the evidence presented. An agency
abuses its discretion only if “no competent evidence in the record
supports its ultimate decision.” Stor-N-Lock, ¶ 22. “‘No competent
evidence’ means that the ultimate decision of the administrative
body is so devoid of evidentiary support that it can only be
explained as an arbitrary and capricious exercise of authority.”
Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo.
1986); Stor-N-Lock, ¶ 22.
19
¶ 39 Put another way, we must sustain the agency’s decision if it is
supported by substantial evidence in the record. Farny v. Bd. of
Equalization, 985 P.2d 106, 109 (Colo. App. 1999). Substantial
evidence is “the quantum of probative evidence that a fact finder
would accept as adequate to support a conclusion, without regard
to the existence of conflicting evidence.” Stiles v. Dep’t of Corr.,
Denver Reception & Diagnostic Ctr., 2019 COA 10, ¶ 13 (citation
omitted). “[W]e presume the validity and regularity of
administrative proceedings and resolve all reasonable doubts as to
the correctness of administrative rulings in favor of the agency.”
Gessler, ¶ 11.
¶ 40 Considering the strict uninterrupted and completely-relieved-
of-all-duties meaning of the MWO, the record supports the hearing
officer’s conclusion that Witt’s pre-2016 meal periods were
compensable. The hearing testimony showed that Witt was the only
laboratory medical technologist on staff during her regular shift.
During her meal periods, she was not permitted to leave the
hospital and she was required to carry the lab phone and respond
promptly to all lab calls, including requests for life-critical testing as
well as non-critical calls.
20
¶ 41 For example, Witt testified that couriers would come to the
breakroom looking for blood specimens that had to be delivered to
different hospital facilities, requiring her to leave her lunch and go
back to the lab. Witt would answer phone calls from service
representatives conducting follow-up calls about the performance of
instruments. Nurses would stop by the lunchroom seeking Witt’s
assistance with the supplies and operation of handheld equipment
like glucometers and i-STATs. Also, because the lab shared
supplies with the main hospital, Witt would have to respond to
requests about inventory of items like reagent cartridges. Other
times, ambulances would arrive with patients in life-threatening
emergencies, requiring Witt to immediately respond to the trauma
room. In short, “[w]hen you are the only laboratory person on duty
in a building,” Witt said, “you are required to assist with everything
that is needed regarding the laboratory.”
¶ 42 To the extent the Hospital suggests that it was improper for
the hearing officer to consider evidence presented for the first time
at the hearing, we disagree. As the Division notes, the applicable
statute and regulation give the hearing officer wide discretion to
21
hear evidence, whether “new” or not. See § 8-4-111.5(2)-(3), C.R.S.
2019; Dep’t of Labor & Emp’t Rule 6.5, 7 Code Colo. Regs. 1103-8.
¶ 43 The Hospital also contends that the hearing officer ignored
evidence because the officer did not distinguish between the
different types of uncompensated meal periods at issue, including
(1) those involving “non-critical interruptions” and (2) those without
interruptions. We are not persuaded because these distinctions
were immaterial under a strict reading of the MWO. The former
period must be compensated because the MWO requires an
“uninterrupted” meal period,4 while the latter period was
compensable because the MWO requires the employee to be
completely relieved of all duties during the meal period and
permitted to pursue personal activities, regardless of whether she is
interrupted. Colo. Minimum Wage Order No. 35, 7 Code Colo. Regs.
4 The Hospital argues that, under its written policy, Witt would have
been compensated for these “non-critical” interruptions had she
clocked in again. The policy, however, did not permit compensation
for “de minimis” interruptions. In any event, the evidence also
permitted a finding that her supervisors pressured her not to incur
overtime pay and advised her not to clock in for minor interruptions
but only to do so when she had to return to the lab to conduct
testing.
22
1103-1(7). The evidence supported a finding that Witt had duties
and restrictions during the meal periods.
¶ 44 Finally, we need not address whether the hearing officer
correctly concluded that the meal periods were also compensable
under the predominant benefit test. As explained, that test does
not apply.
¶ 45 In sum, given its record support, we may not set aside the
hearing officer’s determination that Witt’s pre-2016 meal periods
were not uninterrupted and duty-free and, therefore, were
compensable under the MWO. See Weld Air & Water v. Colo. Oil &
Gas Conservation Comm’n, 2019 COA 86, ¶ 33 (“[W]e defer to an
agency decision that involves ‘factual and evidentiary matters
within an agency’s specialized or technical expertise’” — thus, “if
conflicting inferences can be drawn from the record evidence, we
will not second guess an agency’s choice between two opposing
views.”) (citation omitted).
3. Witt’s 2016 Meal Periods
¶ 46 Recall that, by December 30, 2015, and through her
retirement in February 2016, the Hospital modified Witt’s meal
period duties. After December 30, 2015, she no longer carried a
23
phone during her meal periods. Instead, a charge nurse carried the
phone during that time. If an emergency arose, the nurse would
interrupt Witt, who would clock back in and be paid. If a call was
not urgent, the nurse would instruct the caller that Witt was not
available until the meal period concluded. So, Witt remained
subject to potential emergency interruptions and a geographic
restriction, but no longer carried a phone or experienced
non-critical interruptions.
¶ 47 Witt testified at the hearing that, after this change, the meal
periods “became fair,” and she requested compensation only
through December 30, 2015. She also acknowledged the Hospital
had actually compensated her “all the way to February 11th, 2016.”
So, she believed “they more than fairly compensated me for that.”
The Hospital made these payments before receiving the Citation.
¶ 48 In the Citation, the compliance investigator ruled that Witt
“was owed” compensation for meal periods through February 13,
2016. Later, the hearing officer found that the Hospital “voluntarily
chose to pay” Witt for meal periods after December 30, 2015, and
that the compliance investigator “assumed the same facts and
circumstances were applicable during the entire time frame at
24
issue” because the changed circumstances after December 2015
were not adequately brought to the investigator’s attention. Then,
even though evidence of these changed circumstances was
presented to the hearing officer, she “ma[de] no finding” as to
whether the meal periods after December 2015 were compensable.
Yet, the hearing officer ultimately “affirmed” the Citation in full. In
other words, even though the Hospital appealed all aspects of the
Citation (including as to the 2016 meal periods) to the hearing
officer, she did not make a finding as to the 2016 periods but let the
Citation stand.
¶ 49 Likewise, the Division on appeal does not take a position on
whether Witt’s meal periods in 2016, after the policy change, were
compensable. In any event, the hearing officer affirmed the
Citation’s ruling that those periods were compensable, while
declining to explain why. So, as the Decision stands, the Hospital
owed wages to Witt for the 2016 meal periods, even after the policy
change. Although Witt has retired and the Hospital does not seek
to recover money from her, the Hospital deserves to know, via an
analysis accounting for the 2016 facts, whether those meal periods
25
were compensable under the MWO. This knowledge could impact
the Hospital’s current and future policies on meal periods.
¶ 50 Because the Decision does not adequately consider whether
Witt’s meal periods in 2016 were compensable, we set aside the
Decision with respect to that timeframe only, and we remand with
directions to return the case to the Division to consider this issue.
4. The Hospital’s Remaining Contentions
a. The Division’s Allegedly Inconsistent Interpretations
of the MWO
¶ 51 The Hospital contends that the Division’s allegedly
inconsistent interpretations of the MWO in this case render the
Decision arbitrary and capricious. The Hospital distills three
different versions of the Division’s interpretation of the MWO from
the Citation, the Decision, and the Division’s answer brief in the
district court. These various versions, the Hospital asserts, show
the Division’s “fluctuating analysis” and confirms that “sufficient
standards are lacking to guide [the Division’s] MWO enforcement.”
According to the Hospital, the Division’s changing standards leave it
and other similarly situated employers “in the dark.” That is,
employers are deprived of fair notice of what standards or criteria
26
apply to the Division’s enforcement of the MWO. We are not
convinced, however, that the Division’s view of the MWO has
changed significantly throughout this case.
¶ 52 In the relatively concise Citation, the Division’s compliance
investigator applied the MWO’s plain terms, without any suggestion
that they lacked clarity. The investigator found that Witt was not
paid for meal periods during which she was required to remain on
call and could be interrupted to return to work at any time. The
investigator decided that Witt “should have compensated for all ‘on-
duty’ meal breaks, whether she was interrupted or not.”
¶ 53 In the Decision, the hearing officer addressed the Hospital’s
argument — raised for the time before the hearing officer — that the
predominant benefit test from federal law should be used when
applying the MWO. As the Hospital points out, the hearing officer
said, “Because of [the] material difference between the state and
federal regulations, it is not clear whether the predominant benefit
test is the appropriate standard for interpreting” the MWO.
Doubting that this test should apply, the hearing officer stated that
“the plain language of the [MWO] suggests that the more stringent
‘completely relieved from duty’ test should apply.” And, under the
27
more stringent test, the hearing officer found it “easy to conclud[e]”
that Witt “was not completely relieved from duty and [the
compliance investigator] made no error in determining [Witt’s] meals
breaks were compensable.” Still, “in the interest of thoroughness,”
the hearing officer also analyzed the facts under “the more lenient
predominant benefit test” and concluded that Witt’s meal breaks
were compensable under that standard.5
¶ 54 In the district court, the Division (like the hearing officer) took
the position that, under the MWO’s plain language, Witt’s meal
periods were compensable because she was “not completely relieved
of all duties” and could not pursue personal activities during meal
breaks that other employees could, such as running errands, going
for a walk, or sitting outside. As the hearing officer had, the
Division discussed the “significant and substantive difference”
between the MWO and the federal regulation. The Division urged
5The hearing officer emphasized, “I do not decide whether [the
predominant benefit test] is the appropriate test to interpret [the
MWO]. I examine the facts of this case using the predominant
benefit test only to demonstrate that the hospital’s appeal fails even
under the more lenient test.”
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the district court to simply apply the plain terms of the MWO,
without regard to the predominant benefit test.
¶ 55 The Division’s positions as this case has progressed do not
reflect a sea change. We see no relevant difference between the
Citation and the Division’s district court argument. Both relied on
the MWO’s plain language, though the Division’s district court brief
was more thorough. As the Hospital correctly observes, the hearing
officer said she was not entirely sure whether the predominant
benefit test should be used to apply the MWO. Even so, the hearing
officer found that MWO’s plain language indicated otherwise, and
the hearing officer concluded that Witt’s meal periods were
compensable under the MWO’s plain terms. Then, the hearing
officer analyzed the facts under the predominant benefit test merely
to illustrate that the meal periods were also compensable under the
Hospital’s preferred test.
¶ 56 At every step, the Division advised the Hospital that Witt’s
meal periods at issue were compensable. There should be no doubt
about the Division’s position. The Division has also made clear that
it does not view the MWO as ambiguous and will apply its plain
terms in a strict, literal manner. Given all this, we conclude that
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the Division has not arbitrarily and capriciously enforced the MWO
in this case.6
b. Allegedly Improper Rulemaking
¶ 57 Next, the Hospital argues that the Division applied “an
unwritten rule against an aggrieved party through adjudication.”
By doing so, the Hospital concludes, the Division engaged in
improper rulemaking in violation of the APA. We disagree.
¶ 58 “[T]here is not always a clear distinction between agency
adjudication and agency rule-making.” Trans Shuttle, Inc. v. Pub.
Utils. Comm’n, 89 P.3d 398, 407 (Colo. 2004). A “rule” is “the whole
or any part of every agency statement of general applicability and
future effect implementing, interpreting, or declaring law or policy
or setting forth the procedure or practice requirements of any
agency.” § 24-4-102(15), C.R.S. 2019. “‘Adjudication’ means the
procedure used by an agency for the formulation, amendment, or
6In a footnote in its opening brief, the Hospital criticizes the penalty
assessed against it for not paying Witt’s claim in a timely manner.
Because, in our view, this criticism is unsupported by any
substantial argument, we decline to address it further. Taylor v.
Taylor, 2016 COA 100, ¶ 13; see People v. Wallin, 167 P.3d 183,
187 (Colo. App. 2007) (declining to address arguments presented in
a perfunctory or conclusory manner).
30
repeal of an order and includes licensing.” § 24-4-102(2). Stated
differently, an adjudication “involves a determination of rights,
duties, or obligations of identifiable parties by applying existing
legal standards to facts developed at a hearing conducted for the
purpose of resolving the particular interests in question.” Trans
Shuttle, 89 P.3d at 408 (citation omitted).
¶ 59 To determine whether a proceeding constitutes rulemaking or
adjudication, “we look to the actual conduct and effect of the
particular proceeding, as well as to the purposes for which the
proceeding was brought.” Id. (citation omitted). The mere fact that
the proceeding may have collateral prospective effects on other
similarly situated parties does not convert an adjudication into
rulemaking. Id.
¶ 60 In this case, the Division applied the literal language of the
MWO, a duly promulgated and written rule. The Division
determined that the Hospital had violated this rule with respect to
Witt and the specific meal periods at issue. The Division’s ruling
applied only to those prior violations and only to the Hospital and
Witt. And the facts required to resolve the issues were particular to
this proceeding. See id. While perhaps the Decision in this
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proceeding may have effects on other similarly situated employers,
the proceeding applied only to the Hospital, relying on facts specific
to the Hospital’s operations. See id.
¶ 61 Still, the Hospital maintains that the Division “confirmed” that
it was not applying a previously determined rule “by relying on
different standards at every turn.” We have, however, rejected the
Hospital’s argument that the Division applied different standards.
Therefore, we conclude the Division engaged in adjudication, not
rulemaking. See id.
IV. Conclusion
¶ 62 The portion of the district court’s order affirming the Decision
as to Witt’s 2016 meal periods is reversed, and the case is
remanded with directions to return it to the Division for further
proceedings consistent with this opinion. In all other respects, the
court’s order is affirmed.
JUDGE DAILEY and JUDGE MILLER concur.
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