dissenting.
I respectfully dissent. The “bonus” plan provided for the establishment of a fund and for contributions to the fund based on the profits of the company on appliance sales, labor charges, retail bulk gasoline sales, tank rentals, and cylinder gas sales during the period of the program. All of these items were based on either a percentage or on a certain amount of profit in relation to that of the previous year. The fund was to be divided every four months among employees participating for the full term of the accumulation.
I agree with the majority that the plan should be considered in its totality. Gandy v. Park National Bank, 200 Colo. 298, 615 P.2d 20 (1980). I also agree that the pertinent statutory provision which determines whether the sums to be paid were a profit sharing plan or wages is that portion of § 8-4-101(9), C.R.S., which states that such payments are wages:
“[I]f the labor or service to be paid for is performed personally by the person demanding payment.”
Applying the totality of the facts regarding this plan to the statute, I conclude that the trial court was correct when it stated:
“The [Fund] is not distributed on the basis of an individual employee’s contribution to the total sales, but rather the bonus payable to each employee is calculated on the basis of his total gross earnings. Each employee’s share of the bonus fund bears the same ratio to the total bonus of the company as the total of that employee’s compensation bears to the total compensation paid to all employees of the company. This is nothing more than a profit sharing plan .... ”
I am unable to distinguish the plan set forth here in any material way from that which was in effect in Lampley v. Celebrity Homes, Inc., 42 Colo.App. 359, 594 P.2d 605 (1979). Because the earnings here were derived from a profit sharing plan, no penalties or attorney fees attached under §§ 8-4-104 and 8-4-114, C.R.S. Lampley v. Celebrity Homes, Inc., supra.
Therefore, I would affirm the judgment.