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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.

More states adopt pay transparency laws following Colorado’s lead

Following Colorado’s groundbreaking (and highly controversial) pay transparency law, which includes a requirement that job postings disclose a range of wages and benefits (among other things), New York has adopted a similar law effective May 15, 2022, as have Connecticut, Nevada and (effective 1/1/2023) Rhode Island. California, Maryland and Washington have also adopted similar laws with various conditions, depending on the particular state’s laws, that trigger the obligation to disclose the range upon request by an applicant or employer, or by request after an initial interview, or by request after a job offer. Employers should anticipate such laws will be adopted by additional states.

CDLE publishes new crop of rules and posters for 2022

The CDLE (Colorado Department of Labor and Employment) posted a new crop of rules and posters for 2022. Included are the following:

  • COMPS Order #38 with a supplementary PAY CALC Order. The new COMPS Order is effective 1/1/2022.
    • The new order includes:
      • The new minimum hourly wage in Colorado ($12.56, or for tipped employees, $9.54).
      • A new exemption under Colorado state employees for Highly Compensated Employees who earn at least the minimum weekly guaranteed salary for exempt employees ($515) and, annually, at least 2.25 times the minimum guaranteed salary required for other exemptions ($101,250 for 2022, equaling 2.25x$45,000). This new exemption applies to individuals who perform at least one of the exempt duties of a white-collar exemption and whose primary duty is office or non-manual work.
      • A rule (5.2.4) that states the remedies for failure to permit the required rest 10-minute periods include an extension of the employee’s actual hours worked that day by the required 10 minutes. In other words the employer cannot count the 10 minutes as a rest period, rather, it counts as hours worked that day.
      • An explanation of how to calculate the regular rate of pay for employees working at two or more non-exempt hourly rates during a single week.
    • Employers are also reminded to post the new COMPS Order (and the new PAY CALC Order’s numbers) or if not practical in any given physical site, to distribute the same pursuant to Rule 7.4.
  • Wage Protection Rules, effective 1/1/2022, includes Rule 2.17 defining “vacation” (which is required to be paid out at termination and cannot be subject to use-it-or-lose-it forfeitures) as including any paid leave the employee may use “at the employee’s discretion … rather than leave usable only upon occurrence of a qualifying event (for example, a medical need, caretaking requirement, bereavement or holiday),” in other words, and as an example, PTO is now considered “vacation” that must be paid out at termination and cannot be subject to use-it-or-lose-it forfeitures.

CDLE revises INFO no. 9 regarding Colorado Equal Pay law’s posting requirements

Following up on its recent informal email announcement, the CDLE has revised its Interpretive Notice and Formal Opinion (INFO) no. 9 interpreting Colorado’s Equal Pay for Equal Work Act’s posting requirements. Because the CDLE does not go through formal rulemaking when it issues INFOs, they do not carry the weight of law; however, they the CDLE’s opinion of how the law should be interpreted and reflect how the CDLE intends to interpret the law when called upon to apply it.

In these revisions, the CDLE confirmed its prior statement that covered employers may not evade the law by simply posting disclaimers in a job posting to the effect that Coloradans are ineligible. The CDLE confirmed here its position that these posting requirements do generally apply whenever Coloradans can access a posting, the work can be performed in Colorado (even if remotely into another state) and certainly when it can only be performed in Colorado. Key new language has been included in the following passages from INFO no. 9:

Covered job postings include any posting by a covered employer for either (1) work tied to Colorado locations or (2) remote work performable anywhere, but not (3) work performable only at non-Colorado worksites — as discussed below, under the header, “Out-of-State Jobs Are Excluded.”

Out-of-State Jobs Are Excluded. Employers need not disclose compensation for jobs to be performed entirely outside Colorado (which includes non-Colorado jobs that may include modest travel to Colorado), even if the job posting is in, or reaches, Colorado. Because the text of the Act excludes no jobs, the out-of-state exception is a merely implied one that must be applied narrowly, only where an out-of-state worksite makes Colorado law arguably inapplicable. The out-of-state exception therefore applies to only jobs tied to non-Colorado worksites (e.g. waitstaff at restaurant locations in other states), but not to remote work performable in Colorado or elsewhere. Thus, a remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the Act’s transparency requirements: the Act expressly covers all jobs, so a Colorado-covered employer’s posting of work performable anywhere is not within the narrow implied exception for out-of-state worksites to which Colorado law is arguably inapplicable.

Out-of-State Postings Are Excluded. Employers need not disclose compensation in job postings made entirely outside Colorado. For example, compensation and benefits need not be included in a printed advertisement or posting entirely in another state, but must be included in an online posting accessible by Colorado residents.

The CDLE added language confirming this is true for promotional opportunities as well:

As with job postings generally — see the above section, “Out-of-State Jobs Are Excluded,” as to the scope of the out-of-state exemption applicable here as well — remote jobs do not qualify for this exclusion; promotional opportunity notices for such jobs must include compensation and benefits.

Regarding promotional opportunities, INFO no. 9 continues to require that, if not actually provided to employees, the posting — such as on an intranet site — “must be posted for long enough that employees can reasonably access it.” The CDLE does not give further guidance on how long that would be.

Unfortunately some of the new language is likely to increase not decrease confusion about this new law. Consider for example this sentence (emphasis added), which apparently was meant to confirm that a simple Help Wanted sign is not a “posting” and need not contain information about compensation, benefits, etc.

A “posting” is any written or printed communication (whether electronic or hard copy) that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions, but not a “Help Wanted” sign or similar communication indicating only generally, without reference to any particular positions, that an employer is accepting applications or hiring.

Did the EEOC really intend to require that a small family-owned restaurant who hangs a “Cooks Wanted” sign in the window has to print the salary range, benefits, etc., on the sign?  Consider a sign at a larger company saying “Drivers Wanted”; how could such a sign even contain all the information that is encompassed in a driver’s position?

Reminder, Colorado employers must now provide notice if tip-sharing

Colorado employers are reminded to post a notice, if tip-sharing, for example on menus, at tables, or on receipts, to patrons that “gratuities are shared by employees.” This new posting requirement, Colorado HB 19-1254, took effect August 2, 2019.