On January 1, 2010 the Colorado minimum wage will be reduced by 4 cents, from $7.28 per hour to $7.24 per hour. However, most Colorado employers will be required to pay $7.25 per hour under the federal minimum wage, the Fair Labor Standards Act.

The minimum wage for tipped employees will decrease from $4.26 per hour to $4.22 per hour according to the Colorado Division of Labor & Employment. If the employee does not average $3.02 per hour over the payroll week, the employer must pay the difference.

The Colorado minimum wage is adjusted annually for inflation. Unlike most states, however, when the cost of living goes down – as it has in the past year – the Colorado minimum wage can be reduced. While a variety of states including Washington, Oregon and Florida increase the minimum wage annually, there is no provision for the automatic reduction of minimum wage in most states.

Colorado employers need to update their state minimum wage posters immediately.

Although the Colorado minimum wage reduction is only 4 cents, it is far better than the annual increases of 20 cents or more in recent years. In 2009, for example, the Colorado minimum wage increased by 26 cents from $7.02 per hour to $7.28 per hour. In 2007, the Colorado minimum wage increased by 17 cents per hour from $6.85 to $7.02.

This is welcome news for beleaguered Colorado employers everywhere, after almost two years of depressing economic events.

The Colorado minimum wage is based on the CPI or Consumer Price Index for the Denver-Boulder-Greeley metro area, published by the US Bureau of Labor Statistics, the BLS.

The Center for Disease Control says that H1N1 is widespread in 48 states plus Puerto Rico and Guam at this time. Only Louisiana, Hawaii, the U.S. Virgin Islands and the District of Columbia are not seriously affected.

In Delaware, Iowa, Maine, Maryland, Minnesota, Kansas, New Mexico and New Jersey, the employee’s job is protected if the employee is subject to an official quarantine order by a public agency. In addition, Kansas and Maine protect the employee’s job if he or she must remain at home to provide childcare when the schools are closed under a public quarantine order.

In most states plus the District of Columbia, the “public policy” exception to employment-at-will may protect an employee who is under a quarantine order. This would include Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, new Mexico, north Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

Normally FMLA leave does not apply in the case of a quarantine order unless the employee (or the employee’s child, parent or spouse) meets the FMLA definition of a serious health condition.  For example, if an area school is closed and the employee’s healthy child must stay home, that does not entitle the employee to FMLA leave under federal law. However, other regulations may prevent the employee from being fired for the absence.

Employer should be proactive in creating policies that permit employees to work from home if they are under a quarantine order.

Each employer needs to decide if workers are permitted to use vacation, sick leave, PTO or personal days when a child’s school is closed unexpectedly. Employers need to be consistent about enforcing this policy with all employees.

This case heard by the 9^th Circuit Court of Appeals underscores the fact that supervisors and even coworkers should not ask questions about or discuss an employee’s religion, national ancestry or country of origin. Nor should employers make derogatory remarks about Muslims or members of other religions, even in passing.

It also emphasizes the importance of an employer conducting anti-discrimination training for all managers, after any reported incident.

In EEOC v. Go Daddy Software Inc. the court ruled that two passing remarks, more than a year apart, by two different supervisors, were enough to show a pattern of illegal discrimination against a Muslim employee.

The Equal Employment Opportunity Commission alleged discrimination based on religion and national ancestry. Youseff Bouamama, a Muslim born in Morocco, was hired by the company in late September, 2001. In December 2001, the employee’s hiring manager overheard him speaking French to a customer. The manager quizzed the employee on his religion and birthplace. Shortly after the 911 terrorist attacks on New York, the supervisor also made comments to the effect that Muslims needed to die.

Nineteen months later, in April 2003 a different Go Daddy Software supervisor again asked whether Bouamama was Muslim and whether he was from Morocco.

Those two comments ended up costing the employer a total of $200,000.

Employee Bouamama reported both incidents to Human Resources – the first incident after 6 months and the second incident the day it occurred.

Two days later, Bouamama was interviewed for a supervisory position, but did not receive the promotion. During a reorganization later that month, Bouamama was given a choice between being laid off or transferring to another position. He also requested a transfer to another department, which was denied.

The jury ruled that Bouamama was the victim of illegal discrimination. In addition, they found that he was terminated as retaliation when he complained of this discrimination to HR.

Most importantly, the appeals court found that these two incidents were not “offhand comments” or “isolated incidents.” Instead, they determined that the two comments by different managers, more than a year apart, constituted a pattern.

While H1N1 influenza, the so-called “swine flu” is not always a serious health condition under FMLA, it can be in some cases. Many people with the H1N1 report that the symptoms are very similar to – and no more severe than – the seasonal influenza. In those cases, the employee with swine flu is not entitled to FMLA.

However, if the employee is admitted to a hospital, or is incapacitated for 3 days or more and requires continuing treatment, then the FMLA threshold for a serious health condition has been met. H1N1 is most likely to be severe for children, the elderly and those with compromised immune systems.

According to the Center for Disease Control, flu-related hospitalizations are very high compared to the average for this time of year – and the flu season is only beginning.

In order to be in compliance, every employer should follow the FMLA notification process whenever an employee is absent with H1N1 virus for several days. The employer can and should require certification of the employee’s or family member’s serious health condition.

Employees are also entitled to take unpaid, job-protected FMLA leave when an immediate family member has a serious health condition. So an employee whose spouse or parent has H1N1, and meets the definition of a serious health condition above, the employee may qualify for leave. In addition, an employee can take FMLA for a son or daughter under the age of 18 with a serious health condition. FMLA also covers foster children, stepchildren and any other child for whom the employee is acting in place of the parents – even if the employee is not the child’s legal guardian.

For many years, OSHA has recommended that employers have a plan in place for an influenza pandemic, when a majority of the workforce may be incapacitated by the virus.

As every HR pro knows, the federal Family and Medical Leave Act entitles employees to up to 12 weeks of unpaid, job-protected leave when the employee or an immediate family member has a serious health condition.

The federal Department of Labor has filed several class action suits in recent months against employers who require – or permit – employees to work “off the clock.” Violations include permitting employees to work while on unpaid meal breaks, or permitting employees to “volunteer” after hours and on weekends.

The FLSA or Fair Labor Standards Act permits the government to file collective actions on behalf of a group of employees in a similar situation. Employers are generally liable for 2 years of back pay, and 3 years in the case of willful violations.

In a recent ruling limiting membership in such class action suits, the 9^th Circuit Court of appeals ruled that an employee can join a collective action only if he or she files written consent with the court at the time the action is brought.

In Smith v. T-Mobile USA, two employees in California voluntarily settled their claims for working during unpaid breaks. Later, the two filed motions to be included in the collective action suit against T-Mobile USA, Inc. The 9^th Circuit denied the employees’ motions, ruling that because they had opted out of the suit at the beginning, they could not join it at a later time.

Colleen F. O’Keefe, an employment lawyer with the firm of Franczek Radelet PC, opines that employers can use this principle in their favor. “A strategically timed offer of judgment is an important litigation tool” in a collective action suit, O’Keefe says.

Despite that ruling, many employers are at risk of lawsuits for back wages, penalties, interest, fines and fees.

Under the FLSA and various state minimum wage laws, a non-exempt employee must be paid for all the  time he or she works. This includes time that the employee “voluntarily” works, in excess of his or her scheduled shifts.

A call-center employee who volunteers to come in on a day off for additional training, must be paid for that time. This principle applies to any other industry, as well.

The FLSA also requires that employees be paid overtime – usually after working 40 hours in the payroll week. (Some state laws set stricter requirements for overtime.) If the employee volunteers to work overtime, he or she must be compensated at a rate equal to 1.5 times the employee’s average wage.

Even in cases where the employer has expressly forbidden an employee from working overtime, if the employee works, he or she must be paid for it. The employer may discipline or terminate the employee for working unauthorized overtime, but the employee must be paid for it.