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 November 16, 2023
2023COA109
No. 22CA1791, Perez v. By the Rockies — Labor and Industry — Colorado Wage Claim Act — Limitation of Actions — Colorado Minimum Wage Act — Recovery of Balance of Minimum Wage; Courts and Court Procedures — General Limitation of Actions Six Years
In this civil action, an employee appeals the district court’s
dismissal of his claim under the Colorado Minimum Wage Act,
section 8-6-118, C.R.S. 2023, as untimely. The district court
applied the statute of limitations in the Colorado Wage Claim Act,
section 8-4-122, C.R.S. 2023. Applying the plain language of that
statute, the majority of a division of the court of appeals concludes
that section 8-4-122 does not apply to claims brought under the
Minimum Wage Act. Instead, the applicable statute of limitations is
section 13-80-103.5, C.R.S. 2023. Because the employee’s claim was timely under that statute, the majority reverses the judgment of
the district court.
The dissent is persuaded by the reasoning applied to this
question by a federal district court and concludes that section 8-4-
122 does apply. COLORADO COURT OF APPEALS 2023COA109
Court of Appeals No. 22CA1791 Arapahoe County District Court No. 22CV30998 Honorable Elizabeth Beebe Volz, Judge
Samuel Perez,
Plaintiff-Appellant,
v.
By the Rockies, LLC, and Duane Layton,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE PAWAR Furman, J., concurs Fox, J., dissents
Announced November 16, 2023
Brian D. Gonzales, PLLC, Brian D. Gonzales, Fort Collins, Colorado; Hood Law Office, PLLC, Alexander Hood, Denver, Colorado, for Plaintiff-Appellant
Jackson Lewis P.C., Melisa H. Panagakos, Denver, Colorado; Jackson Lewis P.C., Veronica T. Hunter, Houston, Texas, for Defendants-Appellees ¶1 In this case we are asked to resolve what statute of limitations
applies to a private cause of action brought under the Colorado
Minimum Wage Act, section 8-6-118, C.R.S. 2023. We conclude
that the applicable limitations period is six years pursuant to
section 13-80-103.5, C.R.S. 2023, because that statute applies
generally to debts for determinable amounts. In doing so, we reject
the argument that the two-year limitations period in a different act,
the Colorado Wage Claim Act, applies to Minimum Wage Act claims.
We conclude that the statute of limitations in the Wage Claim Act is
limited by its plain language to Wage Claim Act claims and does not
apply to Minimum Wage Act claims. We therefore reverse the
district court’s judgment that applied the Wage Claim Act’s two-year
limitations period in dismissing the claim of plaintiff, Samuel Perez,
against defendants, his former employer, By the Rockies, LLC, and
Duane Layton (collectively, By the Rockies).
I. Background
¶2 Between 2016 and 2017, Perez worked for By the Rockies as
an hourly employee at a fast-food restaurant. Five years later, in
2022, he filed a claim for relief pursuant to the Minimum Wage Act,
1 asserting that By the Rockies had failed to provide him and other
employees required meal and rest breaks during their shifts.1
¶3 By the Rockies moved to dismiss Perez’s complaint as
untimely. By the Rockies acknowledged that because the Minimum
Wage Act contains no limitations period, the applicable statute of
limitations could default to the six-year limitations period in section
13-80-103.5. But By the Rockies nevertheless argued that the
court should apply the limitations period set out in the Wage Claim
Act, section 8-4-122, C.R.S. 2023 (imposing a two- or three-year
limitations period depending on whether the violation was willful),
based on the nature of Perez’s claim. The district court agreed.
Reasoning that the shorter limitations period contained in the Wage
Claim Act applied, the court dismissed Perez’s complaint as
untimely.
¶4 Perez appeals.
1 Perez argued that By the Rockies had violated both the Wage
Claim Act and the Minimum Wage Act, but he asserted a claim for relief under the Minimum Wage Act alone.
2 II. Standard of Review and Applicable Law
¶5 We review de novo questions of statutory interpretation and a
district court’s dismissal of an action based on a statute of
limitations defense. Gomez v. Walker, 2023 COA 79, ¶ 7.
¶6 When interpreting a statute, our aim is to give effect to the
legislature’s intent. Id. at ¶ 8. We start with the plain language of
the statute. Id. If that language is unambiguous and susceptible to
only one reasonable interpretation, we stop there. Miller v.
Hancock, 2017 COA 141, ¶ 24.
¶7 To determine whether a statute is ambiguous, we consider the
statute as a whole, giving consistent, harmonious, and sensible
effect to all its parts. Gomez, ¶ 8. We also ignore illogical or absurd
results. Id. Only if the statute is ambiguous do we resort to
additional tools of statutory interpretation, such as examining the
legislative purpose or history of a statute. § 2-4-203(1)(c), (g),
C.R.S. 2023.
III. The Applicable Limitations Period is Six Years
A. The Statutes’ Plain Language is Unambiguous and Controls
¶8 Section 13-80-103.5(1)(a) sets out a six-year limitations period
for claims “to recover a liquidated debt or an unliquidated,
3 determinable amount of money.” The parties do not dispute, nor do
we, that Perez’s Minimum Wage Act claim fits this description. And
because the Minimum Wage Act contains no limitations provision
specific to Minimum Wage Act claims, it would seem clear that the
six-year limitations period in section 13-80-103.5(1)(a) applies.
¶9 Despite this apparent clarity, By the Rockies urges us to apply
the Wage Claim Act’s limitations provision to Perez’s Minimum
Wage Act claim. We conclude that doing so would be contrary to
the plain and unambiguous language of the Wage Claim Act’s
limitations provision.
¶ 10 The Wage Claim Act is codified at article 4 of title 8 in the
Colorado Revised Statutes. And its limitations provision states that
“[a]ll actions brought pursuant to this article” shall be commenced
within either two or three years of accrual, depending on whether
the claim is willful. § 8-4-122. Thus, this limitations provision
applies only to article 4 claims (“actions brough pursuant to this
article”). Perez brought his claim under article 6 of title 8, not
article 4. Because the Wage Claim Act’s limitations provision
applies only to article 4 claims, it plainly and unambiguously does
not apply to Perez’s claim here.
4 ¶ 11 In the face of this plain and unambiguous language, By the
Rockies argues that the Wage Claim Act’s limitations provision
must nevertheless extend beyond article 4 claims and include
article 6 claims because both types of claims are private rights of
action to recover unpaid wages. We recognize that when resolving
competing statutes of limitation, courts consider the nature of the
right asserted and “not necessarily the particular form of action or
the precise character of the relief requested.” Hersh Cos. v. Highline
Vill. Assocs., 30 P.3d 221, 223-24 (Colo. 2001) (quoting Persichini v.
Brad Ragan, Inc., 735 P.2d 168, 172 (Colo. 1987)). But there are no
competing statutes of limitation here. The legislature chose to limit
the Wage Claim Act’s limitations period to article 4 claims. The
legislature could have written a limitations period into the
Minimum Wage Act; or it could have included a provision in the
Minimum Wage Act explaining that the Wage Claim Act’s limitations
period applies to article 6 claims. The legislature did neither.2 This
2 Notably, a bill to include a similar limitations period in the
Minimum Wage Act itself was introduced in the legislature but was indefinitely postponed. See H.B. 23-1035, 74th Gen. Assemb., 1st Reg. Sess. (Colo. 2023).
5 clearly manifests the legislature’s intent that the general six-year
limitations provision applies to article 6 claims.
¶ 12 Moreover, our interpretation is consistent with the statutory
scheme because that scheme already applies different limitations
periods to different types of claims for unpaid wages. As explained
above, the limitations period for article 4 claims (under the Wage
Claim Act) is either two or three years, depending on the willfulness
of the employer. In contrast, the limitations period for article 5
claims to recover unpaid wages due to wage discrimination is
always two years, regardless of willfulness. § 8-5-103(2), C.R.S.
2023. Thus, the scheme already contemplates different limitations
periods for claims seeking unpaid wages depending on the nature of
the wage violation and which article the claim is brought under.
¶ 13 The parties rightly point out that decisions of Colorado’s
federal district court have come to disparate conclusions on this
issue. In Sobolewski v. Boselli & Sons, LLC, 342 F. Supp. 3d 1178
(D. Colo. 2018), the court found that the general six-year limitations
period applies to Minimum Wage Act claims. On the other hand, in
Balle-Tun v. Zeng & Wong, Inc., Civ. A. No. 21-cv-03106, 2022 WL
1521767 (D. Colo. May 13, 2022) (unpublished order), the court
6 extended the reach of the Wage Claim Act’s limitations provision to
Minimum Wage Act claims. Indeed, the district court here relied on
Balle-Tun in finding that the Wage Claim Act’s limitations period
applied.
¶ 14 Although we may consider these cases as persuasive
authority, we are not bound by them when interpreting state
statutes. See Gomez v. JP Trucking, Inc., 2022 CO 21, ¶ 32 (while
federal precedent is persuasive in construing similar language in
state statutes, “we should first look to the plain language of the
controlling statutes under our law” (quoting Rosenthal v. Dean
Witter Reynolds, Inc., 908 P.2d 1095, 1100 (Colo. 1995))). And
whatever persuasive force they have, that force pales in comparison
to the clear and unambiguous language the legislature chose.
¶ 15 We therefore conclude that based on the plain and
unambiguous language in the relevant statutes, a six-year
limitations period applies to Perez’s Minimum Wage Act claim.3
3 At oral arguments and for the first time, By the Rockies asserted
that the two-year limitations period in section 13-80-102(1)(i), C.R.S. 2023, applies to Perez’s claim. We disagree. That statute applies only when “no other period of limitation is provided.” § 13- 80-102(1)(i). But section 13-80-103.5, C.R.S. 2023, provides a
7 B. By the Rockies’ Additional Arguments
¶ 16 By the Rockies argues against our interpretation by relying on
the legislative purposes of the Wage Claim and Minimum Wage Acts
and appeals to common sense. Because we conclude the relevant
statutory provisions are unambiguous, we need not address these
arguments. See § 2-4-203(1)(e), (g) (only if a statute is ambiguous
may courts consider “[t]he legislative declaration or purpose” or
“[t]he consequences of a particular construction”). Nevertheless, we
explain why we disagree with them.
¶ 17 First, the acts do not serve the same purpose. The Wage
Claim Act ensures timely payment of wages and defines methods of
payment of wages. See generally §§ 8-4-102 to -109, C.R.S. 2023.
By contrast, the legislative declaration of the Minimum Wage Act
says the act aims to preserve the “welfare of the state of Colorado”
by protecting workers “from conditions of labor that have a
pernicious effect on their health and morals.” § 8-6-101(1), C.R.S.
2023. To that end, the Minimum Wage Act makes it unlawful to
“employ workers . . . for wages which are inadequate” to meet the
statute of limitations for Perez’s claim. Therefore, section 13-80- 102(1)(i) does not apply.
8 necessary cost of living or to employ workers “under conditions of
labor detrimental to their health.” § 8-6-104, C.R.S. 2023. Because
the purposes of and investigatory powers authorized by the acts are
different, the imposition of different limitations periods for violations
of each does not offend either act’s legislative purpose.
¶ 18 Second, we are not persuaded by the argument that the
limitations period for Minimum Wage Act claims should be three
years or less because the Minimum Wage Orders promulgated by
the Colorado Department of Labor and Employment require
employers to maintain employment records for only three years.
Regulations cannot modify statutes, especially statutes whose
language is plain and unambiguous. See McCool v. Sears, 186 P.3d
147, 151 (Colo. App. 2008).
¶ 19 Third, we do not share By the Rockies’ concern that our
interpretation will permit statute shopping based on the applicable
statute of limitations. As explained above, the underlying purposes
of the acts are different. And claims brought under each act seek to
remedy a different wage-related violation. Moreover, it is not
unusual for a single liability-creating act to give rise to multiple civil
claims with different statutes of limitation.
9 ¶ 20 Therefore, even if we had not concluded that the relevant
statutory language was plain and unambiguous, we would not have
been persuaded by By the Rockies’ reliance on these extrinsic tools
of statutory interpretation.
IV. Disposition
¶ 21 The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
JUDGE FURMAN concurs.
JUDGE FOX dissents.
10 JUDGE FOX, dissenting.
¶ 22 Because the operative statute does not specify how long an
employee has to bring a private claim under Colorado’s Minimum
Wage Act, § 8-6-119, C.R.S. 2023, we are tasked with deciding
which of two limitation periods applies here. Perez advocates for a
six-year limitations period, § 13-80-103.5(1)(a), C.R.S. 2023, and By
the Rockies says we should apply the Colorado Wage Claim Act’s
two-year limitations period, § 8-4-122, C.R.S. 2023 (usually two
years, but three if wages were wrongfully withheld). The parties do
not dispute that five years have elapsed since Perez’s employment
with By the Rockies ended.
¶ 23 The majority is correct that we are not bound by the United
States District Court for the District of Colorado’s decisions, but we
are not precluded from adopting or borrowing from other courts’
well-reasoned analysis. Like the district court, I find the federal
court’s reasoning in Balle-Tun v. Zeng & Wong, Inc., Civ. A. No. 21-
cv-03106, 2022 WL 1521767 (D. Colo. May 13, 2022) (unpublished
order) (applying Colorado state law), highly persuasive.
¶ 24 The majority sets out the statutory framework, so I will not
repeat it and will focus instead on where our positions diverge. In
11 Colorado, when two limitation periods could apply, we must
consider that (1) a later-enacted statute should be applied over an
earlier-enacted statute; (2) the more specific of two applicable
statutes should be applied; and (3) the longer of the two limitations
periods should be applied. Id. at *3 (citing Reg’l Transp. Dist. v.
Voss, 890 P.2d 663, 668 (Colo. 1995)); § 2-4-205, C.R.S. 2023
(special prevails over general); § 2-4-206, C.R.S. 2023 (latest
effective date prevails); see also Jenkins v. Haymore, 208 P.3d 265,
268 (Colo. App. 2007), aff’d on other grounds, 208 P.3d 238 (Colo.
2009); Hersh Cos. v. Highline Vill. Assocs., 30 P.3d 221, 223 (Colo.
2001) (the general statute or provision must yield to the specific
statute or provision).
¶ 25 The enactment dates are not particularly telling here. The six-
year limitations period in section 13-80-103.5 was re-enacted in
1986, and the two- (or three-) year limitations period in section 8-4-
122’s predecessor statute was added in 1986; and both pre-date
section 8-6-118’s 2014 enactment. Ch. 114, sec. 1, § 13-80-103.5,
1986 Colo. Sess. Laws 697; Ch. 65, sec. 10, § 8-4-126, 1986 Colo.
12 Sess. Laws 507; see Ch. 276, sec. 8, § 8-6-118, 2014 Colo. Sess.
Laws 1120.
¶ 26 Regarding Voss’ second directive, it is fair to say that title 8 —
a statutory compilation concerning “Labor and Industry” — is more
specific to an employer-employee dispute than title 13, a
compilation concerning “Courts and Court Procedure” (although
article 80 of that title concerns limitations). Applying Voss, 890
P.2d at 668, leads me to conclude that, because articles 4 and 6 are
part of title 8, it is more appropriate to apply the limitations period
in section 8-4-122 to claims brought under article 6 than to apply a
limitations period from a different title. People in Interest of J.D.,
2020 CO 48, ¶ 9 (a statutory provision that is part of a
“comprehensive whole must be understood, when possible, in pari
materia — harmonious with the entire scheme”); see generally 2B
Norman J. Singer, Sutherland Statutory Construction § 51:2, at 188
(6th ed. 2000) (“Provisions in one act which are omitted in another
The current version of section 13-80-103.5 became effective July 1, 1986, but the earlier version of the statute, § 13-80-110, C.R.S. 1985, also had a six-year limitations period.
13 on the same subject matter will be applied when the purposes of
the two acts are consistent.”).
¶ 27 In addition to the guidance Voss provides, applying the
limitations period in title 8 to this employment issue makes sense
for the following reasons:
Claims to recover regular wages must be brought within
two (or three) years of when the wages became due and
payable. Hernandez v. Ray Domenico Farms, Inc., 2018
CO 15, ¶¶ 16-17 (addressing a claim for wages under the
Colorado Wage Claim Act and other statutes).
Presumably any claimed unpaid or underpaid wages were
due and payable while Perez remained a By the Rockies
employee.
In repealing and re-enacting earlier Colorado wage laws,
the legislature sought to bring our wage laws into
compliance with the Federal Fair Labor Act, which
applies a two- or three-year limitations period. See
Hearings on H.B. 86-1231 before the H. Bus. Affs. & Lab.
Comm., 55th Gen. Assemb., 2d Reg. Sess. (Feb. 11,
1986); 29 U.S.C. § 255(a) (imposing a two-year
14 limitations period, unless there was a willful violation);
Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo. 2000) (the
General Assembly’s intent and purpose must prevail over
a literalist interpretation that leads to an absurd result);
see also 29 C.F.R. § 1602.14 (2022) (records of an
employment action must be kept for one year, but if a
charge of discrimination has been filed, the employer
must keep all records relevant to the charge until final
disposition); 29 C.F.R. § 1627.3 (2022) (Age
Discrimination in Employment Act requires employers to
keep certain records for three years).
By regulation, violations of the Colorado Minimum Wage
Order (MWO) — or its more recent replacement, the
Colorado Overtime and Minimum Pay Standards Order
(COMPS Order) — must be registered within two years (or
three, if it is alleged that the violation was willful). MWO
No. 35, Rule 15, 7 Code Colo. Regs. 1103-1 (effective Jan.
And further, the General Assembly, by statute, has told us that “[i]n enacting a statute, it is presumed that . . . [a] just and reasonable result is intended.” § 2-4-201(1)(c), C.R.S. 2023; see also § 2-4-203, C.R.S. 2023.
15 1, 2019-Dec. 31, 2019), https://perma.cc/GA3G-4ZUP;
COMPS Order No. 38, Rule 8.2, 7 Code Colo. Regs. 1103-
1 (effective Jan. 1, 2022); see also Larimer Cnty. Bd. of
Equalization v. 1303 Frontage Holdings LLC, 2023 CO 28,
¶ 30 (we may defer to an agency’s administrative
regulations if they do not contravene the operative
statute); Pilmenstein v. Devereux Cleo Wallace, 2021 COA
59, ¶ 25 (recognizing that MWOs are regulations that
extend to wage and compensation issues beyond
payment of the minimum wage and implement several
statutes, including the Colorado Wage Claim Act and the
Colorado Minimum Wage Act).
Colorado employers must keep payroll records for three
years. See MWO No. 35, Rule 12, 7 Code Colo. Regs.
1103-1 (effective Jan. 1, 2019-Dec. 31, 2019) (requiring
records be kept for three years after the wage or
compensation was due); 1303 Frontage Holdings LLC,
¶ 30.
One claiming a refund or a credit may amend a federal
tax return within three years after the date of the original
16 filing, or two years after the date taxes were paid,
whichever is later. See Internal Revenue Serv., Dep’t of
Treasury, Pub. No. 17, Your Federal Income Tax: For
Individuals 122 (2022), https://perma.cc/UX3P-SZ29. It
would be illogical for the legislature to not want the
employer, or the employee, to timely amend a tax return
to pay the appropriate tax. Gomez v. Walker, 2023 COA
79, ¶ 8 (cautioning that we must avoid “illogical or
absurd” results in construing a statute).
¶ 28 For all these reasons — and those persuasively articulated in
Balle-Tun, 2022 WL 15217670, at *3 — I would affirm the district
court’s order. I respectfully dissent.