Servers work long, physically demanding shifts. They hustle from table to table, juggle multiple orders, and often rely on tips to make ends meet. But what happens when an employer refuses to pay those tips? Many workers aren’t aware that unpaid tips count as unpaid wages under Colorado law. If you’re a server in Colorado, it’s critical to understand your rights and the legal deadline to sue for unpaid tips. Missing that window can cost you more than just money; it can cost you justice.
If you’re a server who’s ever left work feeling shortchanged, this article is for you. We’ll walk you through everything from how to file a claim for unpaid wages to what to expect during a court hearing. The process can seem overwhelming, especially if you’re already stressed about bills and daily life. But knowing your rights, the proper steps, and what deadlines apply can give you the confidence to take action.
Let’s break it down, step by step, so someone else can’t get your case dismissed.
Know Your Rights: What the Law Says About Unpaid Tips
Under Colorado state law, employers must pay employees all earned wages, including tips. Servers often earn below minimum wage in base pay, relying on tips to bridge the gap. When an employer withholds or pockets your tips, they’re not just being unethical, they’re breaking the law.
Here’s what the law protects you against:
- Tip Theft: Employers cannot legally take your tips or use them to cover credit card fees.
- Unpaid Wages: Tips are considered part of your total wages. Not paying them is the same as withholding a paycheck.
- Overtime Pay: If you work more than 40 hours in a week, your employer must pay overtime based on your regular rate of pay. In some cases, this rate may include tips, depending on how the employer applies the tip credit under federal and state law.
Under Colorado law (C.R.S. § 8-4-122), employees must file any wage-related lawsuit, including for unpaid tips, within two years of when the wages were due. If the employer’s violation was willful, meaning they knowingly failed to pay, the deadline extends to three years. This statute of limitations sets a strict time frame, so acting promptly is essential to protect your rights.
Filing a Complaint or Lawsuit: How the Process Works
If your employer hasn’t paid what you’re owed, you can file a formal complaint with the Colorado Department of Labor or pursue a lawsuit in court. Each option requires specific steps and legal documents.
Here’s how to begin:
- Gather Evidence: Collect receipts, timesheets, text messages, and any other documents showing unpaid tips.
- Fill Out a Complaint Form: You’ll need to complete a detailed form outlining the amount of unpaid wages and why you believe you’re owed them.
- File Your Complaint: You can file a wage complaint by electronic means or via mail with the Colorado Division of Labor Standards and Statistics. If you pursue a lawsuit instead, you must file the complaint in the appropriate court and follow all service and filing rules.
Filing a lawsuit requires you to:
- Draft and file a complaint in the proper court.
- Pay a filing fee, unless waived due to financial hardship.
- Serve the employer (the defendant) using proper service methods, like personal delivery or certified mail.
If the employer fails to respond, you may receive a default judgment, which is a court order granting you the amount requested, plus additional penalties.
The Legal Clock is Ticking: Understanding the Deadline
Under Colorado law, the statute of limitations sets a strict deadline for suing an employer for unpaid wages, including tips. Generally, you have two years from the date your tips were not paid.
Missing this deadline means your case may be dismissed, and you’ll lose the right to collect the money you’re owed. That’s why it’s important to act fast once you realize your tips haven’t been properly paid.
Important points to note:
- In most cases, acting early gives you stronger evidence and more options.
- If you’ve already filed a complaint but haven’t received payment, you can still escalate to a lawsuit.
- Delays in service or incomplete documents can affect your case timeline, so make sure everything is accurate.
If you’re unable to determine when the last unpaid tip occurred, speak with an attorney to help figure out the best date to use.
What Happens Next: From Court Hearing to Final Judgment
Once your claim is filed and your employer has been served, the court will schedule a court hearing. This is your chance to present evidence, explain what happened, and argue your case. The employer also has an opportunity to submit an answer, a formal response to your claims.
At this stage, the employer may raise an affirmative defense, such as claiming you agreed to a tip pooling policy or were already paid. Be prepared to dispute these claims with proof like pay stubs, statements from coworkers, or messages from management.
What the court can do:
- Issue a court order demanding that your employer pay what’s owed.
- Award additional penalties if the court finds willful misconduct.
- If the employer doesn’t show up, the court can grant a default judgment in your favor.
Make sure to follow up with the court clerk to receive your case information, including the case number, future hearing dates, and deadlines. You must stay informed and ready for the next step in the process.
Collecting Your Money: After the Judgment
Winning the case is only half the battle. The next step is collecting the payment. Sometimes, the employer pays after a judgment. Other times, it may require further legal action to collect your wages.
Here’s how that works:
- You may need to work with a debt collector to recover the money.
- The employer becomes a debtor, and you become a creditor.
- If the employer refuses to pay, the court may help garnish their bank accounts or business earnings.
Remember: You’re entitled not just to the unpaid tips but possibly interest and penalty wages under Colorado law. In some cases, servers have recovered double or triple their original debt amount.
If the employer claims financial hardship or disputes the amount, you’ll need additional information to prove your legal claim.
Common Mistakes to Avoid
When pursuing unpaid wages, many servers unintentionally hurt their case by:
- Waiting too long to file
- Not collecting solid evidence
- Using the wrong address for service
- Ignoring notices from the court
- Failing to respond within deadlines
To protect yourself, review every form before you sign and submit. Always keep copies and contact the court clerk if you’re unsure about a requirement. These small details can make or break your case.
FAQ
Can I sue my employer for unpaid tips if I’ve already quit my job?
Quitting your job does not affect your right to sue for unpaid wages or tips. As long as the plaintiff files their claim within Colorado’s statute of limitations, two years (or three if the violation was willful), they can take legal action even after leaving the job.
Is unpaid tip money considered unpaid wages?
Under Colorado law, unpaid tips count as unpaid wages, which are treated as unpaid debt owed to you by your employer. You can pursue this debt through legal channels, including court action or wage complaints.
Will this affect my taxes?
Possibly. If you receive back pay, including unpaid tips, you must report it as income on your tax return. The IRS generally requires workers to report and pay taxes on earned income, including wages received later through a judgment or settlement. However, the taxability of specific amounts can depend on the type of damages awarded.
Can I use a lawyer, or do I have to file alone?
You can file on your own, but hiring a skilled employment lawyer may strengthen your case, especially in complicated circumstances involving tip pooling, retaliation, or repeated violations. A lawyer can also help you meet deadlines, gather evidence, and pursue additional damages.
How is this different from the laws in other states?
Other states may have different minimum wage laws, tip protections, or filing deadlines. For instance, some states don’t allow employers to claim a tip credit at all, while others offer shorter or longer filing windows. Always check your state’s wage laws before taking action.
Can I get any money in advance before the case ends?
No. Courts don’t usually award any advance payments. You must first win the case and obtain a judgment. However, in some instances, lawyers may work on contingency, meaning they only get paid if you win.
Take Action Before It’s Too Late
Unpaid tips aren’t just frustrating, they’re unlawful. As a Colorado server, you have the right to receive full compensation for your hard work. If your employer refuses to pay, act quickly. Learn your rights, gather evidence, don’t let the legal deadline slip by and sue for unpaid tips immediately.
Whether you’re pursuing the debt on your own or seeking legal help, the key is taking that first step. Remember: the longer you wait, the harder it gets to win your case or collect your money.
At Bourassa Law Group, we understand what’s at stake. We fight on behalf of workers who’ve been denied the wages they’ve rightfully earned. If you believe you’re owed unpaid tips or wages, contact us today for a free consultation. We’re here to help you take control and move forward.
1-800-870-8910