HCA-HealthONE v. Colo. Dept. of Labor and Employment

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

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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

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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

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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

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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).

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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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