Tag Archive for: breaks

DOL issues guidance regarding FLSA’s PUMP Act

The DOL has issued a Field Assistance Bulletin under FLSA’s PUMP Act. The PUMP Act is a federal law that applies in addition to any state laws. The PUMP Act requires workers be allowed reasonable breaks to express, for up to one year after the birth of a child, in a private space, not a bathroom. This Field Assistance Bulletin is in addition to the DOL’s Fact Sheet 73.

The Field Assistance Bulletin confirms that determining a “reasonable” amount of time to express is an individualized inquiry that will vary by employee and by workplace, it may also vary during the protected one year period in which the PUMP Act requires the break. To illustrate, the Field Assistance Bulletin says one woman (see example named “Irina”) may require 4 20-minute breaks at first then only 2 20-minute breaks after the baby is 6 months old.

Because the “pump break” (which is DOL’s phrasing) is required as “reasonable” in each person’s circumstances, an employer cannot require that the mother express only during scheduled breaks.

An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump, but an employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump. Additionally, any agreed-upon schedule may need to be adjusted over time if the nursing employee’s pumping needs change.

The Field Assistance Bulletin explains that, for non-exempt workers, the pump break must be paid if it is for 20 minutes or less. Additionally if the non-exempt employee is interrupted during an otherwise unpaid pump break, the entire break must be paid.

Julia is (a non-exempt employee who is) on a pump break when she receives a call on her work cell phone from a coworker who provides her with instructions regarding a work project. After she finishes the work call, Julia completes her pump break. Because Julia was not relieved from duty, the time she spent on the call must be counted as hours worked.

Pump breaks for exempt employees must be paid in the sense that they cannot trigger a reduction in the worker’s guaranteed salary.

Cameron is a salaried exempt administrative employee at an assisted living center who has a four-month-old child. Cameron takes three pump breaks a day. Cameron’s employer cannot deduct the time used for pump breaks from their salary

DOL issues Field Assistance Bulletin reminding employers that federal wage-hour requirements still apply even when employees are working remotely

In its Field Assistance Bulletin 2023-1 , the DOL reminds employers that federal wage-hour requirements still apply even when employees are working remotely. Thus for example, employers still must comply with the requirements to provide and document meal periods and rest breaks, as well as lactation breaks, and although employers may suspect that a remote worker is taking unauthorized breaks, the company may not simply assume time should be unpaid. The DOL also discusses an employer’s ability to either schedule work hours (assign remote workers a particular shift of hours to be worked) or assign a certain number of hours to be worked each day. The DOL discusses how employers can instruct employees in a variety of telework scenarios to clock in/clock out at the beginning, the end and throughout the day.

The DOL reminds employers though that, when they know or have reason to believe the employee is working outside recorded hours, the time must be recorded and paid as hours worked, even if the employee is themself choosing to work “off the clock” as it were from home. The DOL cites to its Field Assistance Bulleting 2020-5, which discussed how employers can instruct workers to record all hours worked, including such time, even where not requested, scheduled or authorized by the company.

Employers are reminded that in addition to the federal requirements discussed in the DOL’s Field Assistance Bulletin, additional state and local requirements might apply, including in Colorado for example the CDLE‘s COMPS order and related requirements.

Colorado Court of Appeals certifies class in wage lawsuit for rest breaks but not meal periods

Colorado wage law affords employees (1) a 30-minute meal period, subject to a number of requirements and conditions, which, if circumstances on a given day make it impractical to take, requires that the employee be paid for the time spent working instead and further that the employee be allowed an on-the-clock opportunity to consume a meal and (2) a 10-minute rest break for every 4 hours of work, again subject to a number of requirements and conditions. In Hicks v. Colorado Hamburger Co., the Colorado Court of Appeals was confronted with a case in which the timecards for workers in multiple locations allegedly did not show workers’ meal periods or rest breaks. A single worker at one location filed suit alleging he had not been granted them as required by Colorado law and further, he alleged, his co-workers at his and the other locations had similarly not been granted them. He sought a right to pursue his claims not only on his own individual behalf but on behalf of a class consisting of his co-workers at all locations.

The Colorado Court of Appeals ruled that his claim for rest break violations could be pursued as a class action, but the court refused to certify a class on his meal periods. The Court held that the timcards’ silence on the meal periods did not evidence whether there had been a meal period violation because, the Court noted, the employees may have been allowed to consume the on-the-break meal as permitted by and in accordance with the requirements of Colorado law; therefore, the Court held that class certificaiton would be inappropriate since every workers’ right to a meal period on any given day would be subject to individual analysis over just what exactly happened to them that day. However, the Court found the timecards’ silence as to rest breaks indicative of a possible claim because it held that the timecards’ silence did indicate, at least in the Court’s view of the circumstances of this case, that all workers may have been denied the required rest breaks.

The Court’s decision should not be read as a simple rule that all Colorado state law claims for rest breaks may be brought as class actions and that no Colorado state law meal period claims may be brought as class actions. The Court’s ruling may be limited to the facts before it, which the Court discussed in detail explaining its reasoning why the timecards’ silence, at least on the record before it in this case, warranted the different outcomes.  It is also noted that the Court’s ruling did not address whether it was or wasn’t likely that any violation actually occurred; the case was simply over whether either claim could be pursued on behalf of a class. The Court’s ruling does not reflect any likely outcome on the merits.

CDLE publishes searchable index of its citations and appeals

HR professionals and employment lawyers will have noticed that the CDLE has become increasingly active in Colorado employment law issues in recent years. Are you curious what the agency is actually doing as it enforces this crop of Colorado laws? The CDLE is helpfully publishing a searchable index of its citations and appeals.

Available keyword searches include the following:

Advances Business Closure Division Authority Final Wages Pay Periods Retaliation – PHEW Tip Posting Requirement
Agreed Wage/Rate Calculations of Wages/Hours Division Notices/Filings Fine Pay Statements Retaliation – Wages Tip Sharing / Notice Requirement
Alleged Waiver Commissions Draws Handbooks/Manuals Penalties Retaliation Only Tips/Gratuities
Apparent Authority Compensable Time Employee/Contractor Joint Employment Physical Disability Sub-minimum Wage Settlement Vacation Pay / PTO
Bankruptcy Compliance Order Employee/Volunteer Local Minimum Wage Records of Time Worked Sick Pay – 2020 Willful
Benefits COMPS EAP Duties Test Employer Coverage Meal Break/Meal Periods Reduction in Pay Sick Pay – After 2020
Bonuses COMPS Rest Periods Deductions Minimum Wage Reprisal Staffing/Temp Agencies
Bounced Check COMPS Tipped MW 80/20 application Employer Individual Liability Notice of Rights & Posters Retaliation – COMPS Statutory Interpretation
Breaks/Rest Periods Contract Equal Pay – Transparency Overtime Retaliation – HFWA Termination
Burden of Proof Direct Investigation Exemptions Paid Time Off (PTO) Retaliation – Other Third-Party Payments

An example of the kind of information that might be of interest to employers is this recent Notice of Fine For Non-Compliance With Division Orders And Order To Respond issued to one employer apparently based on the CDLE’s own review of the employer’s public job posting, in light of recent Colorado job-posting transparency requirements. There the CDLE discusses its view of specific posting requirements and the proper level of related fines.

The CDLE deserves credit for making this index available and searchable. Employers, individuals and their counsel will benefit from being able to search and find how the CDLE is applying the many laws it now has jurisdiction to enforce.

CDLE issues more new information for Colorado employers

Implementing its most recent batch of rules on a variety of topics, the CDLE just issued yet more information for Colorado employers on those topics.

Are your ready for January 1, 2021?

  • Looking for more information about the CDLE’s latest batch of rules?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Wednesday, December 16, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

Where to find the CDLE’s latest information

The Colorado Department of Labor and Employment’s latest information is available at its website.

As noted in recent posts on this blog, look for the CDLE’s latest rules on its Rulemaking page, to include the following rules:

  • Colorado Overtime And Minimum Pay Standards (“Comps”) Order #37, 7 CCR 1103-1;
  • Wage Protection Rules, 7 CCR 1103-7;
  • Direct Investigations Rules, 7 CCR 1103-8;
  • Colorado Whistleblower, Anti-Retaliation, Non-Interference, And Notice-Giving (“Colorado Warning”) Rules, 7 CCR 1103-11;
  • Colorado State Labor Relations Rules, 7 CCR 1103-12; And
  • Equal Pay Transparency Rules, 7 CCR 1103-13.

Look for its latest posters on the CDLE’s Poster page (the following list is quoted from CDLE)

  • The “Colorado Overtime and Minimum Pay Standards” (“COMPS”) poster and notice, covering wage and hour law — see COMPS Rule 7.4, Posting and Distribution Requirements, unchanged from the 2020 COMPS Order, which requires employers to display the annually revised poster (and send it to off-site employees), plus include either the poster or COMPS itself in any handbook or manual the employer has.
  • The “Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Protective Equipment” poster and notice, covering HFWA and PHEW since their enactment in July 2020 — see Colorado WARNING Rule 4, Notice and Posting Rights and Responsibilities, unchanged from the temporary WARNING Rules in effect since September 21, 2020, which requires employers to post and give employees notice of these rights.
  • Translations of posters and INFOs — to implement requirements for employers to provide posters and notices to non-English-fluent workers, DLSS in 2020 posted translations of its posters in 12 languages and Spanish translations of INFOs (on the same pages as the English posters and INFOs), with new translations of the 2021-updated posters to be posted later this month, and translations of INFOs coming thereafter.
  • With translations into Spanish and other language.

Look for informational summaries on the CDLE’s INFO page, where the CDLE provides the following information summaries (again quoting the CDLE):

  • INFO# 1: Colorado Overtime &, Minimum Pay Standards Order (COMPS Order) #37 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 1: Orden de COMPS #37] (Próximamente)
  • INFO# 2:DLSS Wage Claim Investigation Process
  • INFO# 3: Tips (Gratuities) and Tipped Employees Under Colorado Wage Law
  • INFO# 4: Meal and Rest Period
  • INFO# 5: Public Health Emergency Whistleblower Rights [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 5: Ley de Protección al Denunciante de Emergencias de Salud Pública] (Próximamente)
  • INFO# 6A: Paid Leave Under the Healthy Families and Workplaces Act, through December 31, 2020 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6A: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, vigente hasta el 31 de diciembre, 2020]
  • INFO# 6B: Paid Leave Under the Healthy Families and Workplaces Act, as of January 1, 2021 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6B: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, a partir de 1º de enero] (Próximamente)
  • INFO# 7: Payment of Wages & Required Record-Keeping
  • INFO #8: Colorado Chance to Compete Act (“Ban the Box”)

The CDLE also invites interested individuals to sign up for the agency’s email alerts.

Highlights from the CDLE’s latest information

In recent posts, this blog has summarized a number of the CDLE’s latest rules. Some of the highlights from this most recent information just posted by the CDLE implementing its new rules includes the following:

  • INFO #1: The new hourly minimum wage in Colorado will be $12.32. The new minimum guaranteed salary for exempt workers will be $40,500.
    • Employers are reminded they must distribute a copy of the COMPS poster or the entire COMPS Order 37 (new for this year) with any policies/handbooks that are being distributed otherwise. Signatures must be obtained.
  • INFO #4: The CDLE has taken a strict approach to meals and rest periods, summarized in INFO #4.
    • Employers are responsible for not only “authorizing” workers to take breaks, but they must “permit” them to do so, and CDLE explains a rest break is “authorized” if the company has an adequate policy for example, but even if “authorized,” it is not “permitted” if the employee is “unable or discouraged” to take the break. Evidence that the employee is not “permitted” to take a break may simply be the employee’s own statement that they “felt pressure from the employer not to take the break.
    • It is the employer’s obligation, not the employee’s, to track and record and keep records of employee breaks. An employer cannot simply say it assumed the breaks were being taken as “authorized” where an employee claims not to have been “permitted” to take the break.
    • When a break is missed, it counts as work time, must be paid as such, even if that triggers daily or weekly overtime.
  • INFO #5: In its rules and now in its INFO implementing Colorado’s new PHEW law (already in effect), the CDLE has take the position that an employer who provides no PPE (mask) in a time of a public health emergency may not prohibit an employee from using an unsafe mask. PHEW allows employers to prohibit employees from using masks that do not meet the company’s requirements, only if — according to the CDLE’s interpretation — the employer has first provided its own mask to the worker. Employers should consider making appropriate disposable masks available in their workforces, so that they can later prohibit inappropriate masks that employees might otherwise wish to wear.
  • INFO #7: The CDLE summarized rules regarding the payment of wages, the establishment of pay periods, payment of final wages at separation, pay statement requirements and recordkeeping requirements.
  • INFO #8: The CDLE explained Colorado’s new ban-the-box law. Companies may not state in job applications or advertisements “that a person with a criminal history may not apply,” nor ask about the person’s criminal history on an application, nor require the applicant to disclose any criminal history on the application. Additionally, the CDLE says this prohibits an employer from stating that background checks will be required. Although an employer may require background checks as part of a conditional offer of employment, that may not be stated in an application or advertisement. The CDLE explains the limited exceptions available where employers are otherwise required by law to inquire into these matters.

CDLE finalizes crop of new rules

The Colorado Department of Labor and Employment (CDLE) has finalized a half dozen rules on a wide array of topics. Employers should take care to immediately familiarize themselves with these rules, as many take effect January 1, 2021. The rules can be found on the CDLE’s rulemaking page, where the CDLE summarizes its new rules with the following table that contains links to the actual rules themselves:

Adopted Rules Clean Version Redline Version Statement of Basis & Purpose

State Labor Relations Rules, 7 CCR 1103-12

PDF PDF PDF
Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11 PDF PDF PDF
Direct Investigations Rules, 7 CCR 1103-8 PDF PDF PDF
Equal Pay Transparency Rules, 7 CCR 1103-13 PDF PDF PDF
Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1 PDF PDF PDF
Wage Protection Rules, 7 CCR 1103-7 PDF PDF PDF

Individuals interested in receiving updates from the CDLE directly when it engages in the rulemaking process, may subscribe with the CDLE here.

Look for follow-up posts on this blog highlighting some of the key developments in some of these rules.

COMPS Order 36, SOME of what you need to know

As previously posted here, the Colorado Division of Labor and Employment has issued its COMPS Order no. 36. Here’s some of what you need to know:

  • It probably applies to your company. As previously explained, Colorado Wage Orders have historically been limited to certain industries, now their successor, this “COMPS Order” is generally applicable to all employers with only some exceptions, most notably some aspects of the agricultural industry.
  • It’s long, but you should take the time to read it and review it with experienced employment counsel. If you read the draft, the CDLE published a redline with changes from the draft to the final version.
  • It will be effective March 16, 2020.
  • Ensure your overtime-exempt personnel still qualify for exemption under Colorado law, especially that each is earning more than the required minimum salaries, effective the following dates:

July 1, 2020 $684.00 per week ($35,568 per year)
January 1, 2021 $778.85 per week ($40,500 per year)
January 1, 2022 $865.38 per week ($45,000 per year)
January 1, 2023 $961.54 per week ($50,000 per year)
January 1, 2024 $1,057.69 per week ($55,000 per year)

Effective January 1, 2025, the CDLE advises that salary minimums will increase commensurate with Colorado’s minimum wage, as adjusted by the CPI.

  • Employers must now “authorize and permit” non-exempt workers to take at least one 10-minute paid break as close to the middle of each 4-hour shift. What does “authorize and permit” mean? No one knows, and worse, the phrase is not defined elsewhere in the law. Some options employers might consider, in an abundance of caution, include requiring employees take such breaks, disciplining employees who fail to do so and requiring employees to mark down their break times on timecards even though such time must be paid.
    • Note: The COMPS order has different break requirements for employers that have contrary union-negotiated collective bargaining agreements and some Medicaid-funded service providers.
  • Employers must now pay for certain pre- and post-shift activities, which federal law does not consider compensable time, to include some aspects of time related to donning and doffing (changing in and out of certain clothes and gear), briefings, security screenings, safety and travel-related time, and clocking-in and -out.
  • Companies that use independent contractors in their workforce will want to review this blog’s previous post, as COMPS Order 36, as explained by its Statement of Basis, Purpose, Specific Statutory Authority, and Findings in support of COMPS Order #36, seems to have dramatically narrowed the ability of companies to do so, apparently in an attempt to convert such workers, by administrative fiat, into statutory “employees” of joint employers.
  • COMPS Order 36 has revised the definitions for which salaried personnel may be exempt. Employers should review their current exemptions against this new law. Notably, COMPS Order 36 actually expands the availability of exemptions in some instances for computer professionals and some seasonal camp and outdoor education programs.
  • Post the CDLE’s new COMPS Order 36 poster. Indeed the new poster is so new, that the CDLE hasn’t issued one yet. Recently on a call to CDLE the CDLE advised that it does not know when or if it will issue the poster it refers to itself in its own new order.
    • Not only must it be posted, but the poster or the entire COMPS Order itself must be included in handbooks and signed for.
    • And that non-existent poster and expansive COMPS order must be so distributed not only in English but in Spanish or such other language as workers may speak. Although the COMPS Order suggest the CDLE will distribute the order in such other languages, there are none on CDLE’s website.
  • As noted, review this expansive order in its entirety. Other provisions for example address meal, lodging, top credit, uniform deposits.