The CDLE has issued its new COMPS Order 39 with a redline showing changes made since #38 and a new poster, as well as related explanatory information. Employers who issue new handbooks, manuals, policies, etc., for which they obtain signatures are reminded to update and issue with them the new #39 poster. (Note: The CDLE has advised that its new COMPS Order 39 poster has been issued but not yet released on its website, where it will shortly be available in multiple languages.)
Along with the new COMPS Order 39, the CDLE has also issued its updated PAYCALC Order for 2024 with the new minimum wage, exemption, and related required wage rates for Colorado employers, as well as a redline showing the changes made to the last PAYCALC Order and related explanatory information.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-12-14 12:02:522023-12-14 12:08:32CDLE issues new COMPS Order 39 with poster, new PAYCALC order, and related updates
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.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-02-20 12:17:122023-02-20 12:17:12DOL issues Field Assistance Bulletin reminding employers that federal wage-hour requirements still apply even when employees are working remotely
On September 29, 2022, the CDLE issued four sets of proposed Rules and accompanying explanatory Statements.
Proposed revisions to 7 CCR 1103-14, which are the rules implementing the CDLE’s PAY CALC Order, which sets the minimum wage rates in Colorado. The new rules would increase
the minimum hourly rate to $13.65 from $12.56,
the minimum hourly rate with tip credit to $10.63 from $9.54,
the minimum guaranteed weekly salary for executive, administrative and professional exempt employees to $961.54 from $865.38, and
the minimum guaranteed annual salary for highly compensated exempt employees to $112,500 from $102,250.
Proposed revisions to 7 CCR 1103-11 to implement this year’s new law SB 22-097, which expanded whistleblower protections to prohibit retaliation for the expression of any “reasonable concerns about workplace violations of governmental health or safety rules, or otherwise significant workplace health or safety threats,” without a requirement any longer to prove the concerns were “related to a public health emergency.”
Proposed revisions to 7 CCR 1103-7, which implements increases including under this year’s new law SB 22-161 to penalties, attorney fees, claim and appeal processes, under the laws overseen by the CDLE in the Colorado Wage Act (CWA).
Proposed revisions to 7 CCR 1103-6, which vest authority in the CDLE to issue, and oversee enforcement of, prevailing wage determinations on certain public projects under the Colorado Prevailing Wage Act (PWA) and the Keep Jobs in Colorado Act (KJICA).
The CDLE invites comments and has schedule rulemaking deadlines, including public hearings, on its website.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-10-07 11:52:542022-10-06 12:03:38CDLE proposes four sets of new rules
By SB 22-161, the Colorado legislature clarified and expanded a number of enforcement processes, remedies and penalties related to a variety of wage, misclassification, safety and enforcement procedures. Included in the changes are restructurings of the ways and procedures by which penalties can be assessed, as well as enhancement of available remedies and penalty amounts.
Employers should note, even without being involved in a litigation or enforcement action, they will no longer be able to withhold from a final paycheck for an employee’s failure to return property or repay money unless the employer, first, provides the employee, within 10 days following the employee’s separation from employment, written notice, which “must include a written accounting specifying the amount of money or the specific property that the employee failed to pay or return, the replacement value of the property, and, to the extent known, when the money or property was provided to the employee and when the employer believes the employee should have paid the money or returned the property to the employer.” Thereafter, the employee will have 14 days to return/repay, and if the employee does, the employer will have 14 days to pay the employee the amount deducted.
Additionally employers should note that a new 14-day provision applies for employers to pay in response to a written demand, agency claim, lawsuit, etc., for unpaid wages. Compliance/non-compliance with this procedure has the ability then to initiate shifting exposures for remedies, penalties, and even possible attorney fees.
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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.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-02-02 04:13:402022-01-27 12:14:42CDLE publishes new crop of rules and posters for 2022
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”)
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.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-12-07 04:10:092020-12-08 17:00:37CDLE issues more new information for Colorado employers
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:
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-11-20 14:40:352020-11-20 14:40:35CDLE finalizes crop of new rules
On March 16, 2020, the Colorado Department of Labor and Employment (CDLE) issued amendments, effective that same day, to its prior Wage Protection Act Rules. The amendments added language that articulated the CDLE’s opinion that Colorado state law on the Joint Employer doctrine is and, in its opinion, has always been contrary to federal law.
The Statement also clarified what information needs to be included in paycheck statement eliminating prior proposed requirements that CDLE concedes “make() no sense.”
In an email to stakeholders distributing the revisions on March 16, 2020, the CDLE also advised of grace periods it will permit in light of the on-going coronavirus events, as follows:
(B) Division Operations, and Compliance Grace Periods
As of now, the Division remains fully operational. Based in part on potential delays to employer internal operations that have been called to the Division’s attention, the Division has adopted the following policies to grant what leniency it can, within the confines of existing law, for the coming weeks.
(1) COMPS-required paperwork (posters, handbook inserts, acknowledgements, etc.) – compliance by 4/16/20 will be sufficient. To the extent that COMPS requires new paperwork from employers (new posters, handbook inserts, acknowledgement forms, etc.), the Division will deem compliance within the first month of COMPS – i.e., by April 16th – to be sufficient to qualify as compliant.
(2) No Division-initiated investigations of new COMPS rules until 4/16/20. While the Division by statute must investigate any claims filed with us, the Division’s “Direct Investigations” team launches its own investigations, based on tips, leads, and known problem sectors. For the first month of COMPS being in effect (i.e., until April 16th), Direct Investigations will not launch new investigations based on violations of new COMPS rules.
(3)Deeming violations of new COMPS provisions rules non-willful if remedied by 4/16/20. As noted above, the Division cannot by statute reject a claim filed shortly after COMPS takes effect. But to the extent that a violation committed within the first month of COMPS is solely of a new obligation under COMPS, the Division will deem the violation not “willful” if the employer remedies it within the first month of COMPS – i.e., by April 16th.
(4) Starting tomorrow, March 17th, no new “notices of claim” will be sent to employers until April 1st. This is for all wage claims, not just those related to COMPS. Because some employers may be currently struggling to keep up with mail receipt, the Division will postpone mailing any new “notice of claim” – the mailing that tells an employer that a claim has been filed against it – because by statute, a notice of claim starts a 14-day clock for the employer to avoid penalties by paying any wages due. A longer extension would risk backlogging claims, but the Division aims for this period of just over two weeks to postpone employers’ receipt of mail that starts a statutory deadline.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-03-25 14:35:282020-03-25 14:35:28COMPS Order 36 takes effect with some changes
As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. AS explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.
As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. AS explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.
Employers curious how the CDLE will interpret the new order’s tip credit rules, including its continued use of the 80/20 rule that is being eliminated at the federal level but now being maintained at the Colorado state level, should review the CDLE’s Interpretive Notice & Formal Opinion (INFO) #3, which details the CDLE’s anticipated process for claims handling.
As a reminder, this blog recently noted an article by Bloomberg BNA surveying last year’s court decisions, which reflect an unwillingness by lower courts to accept even the federal government’s efforts to eliminate the 80/20 rule.
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As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. AS explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.
Employers curious how the CDLE will enforce wage claims should review the CDLE’s Interpretive Notice & Formal Opinion (INFO) #2, which details the CDLE’s anticipated process for claims handling.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-02-27 02:59:202020-02-24 15:03:49Follow-up on new COMPS Order information from CDLE – 3 of 4
As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. As explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.
One item included in that email was a link to the CDLE’s own summary of COMPS Order 36. At “only” four pages, this summary is an easy to read introduction to this new law, which all employers should take time to review before the COMPS Order’s effective date of March 16, 2020. As employers do, they should also skim the CDLE’s poster, which is its own summary.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-02-26 02:57:432020-02-24 15:03:34Follow-up on new COMPS Order information from CDLE – 2 of 4
As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. As explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.
One item included in that email is a link to the CDLE’s own summary of COMPS Order 36. At “only” four pages, this summary is an easy to read introduction to this new law, which all employers should take time to review before to note is that the CDLE has now provided its COMPS Order 36 poster, which is to be used in complying with Rule 7.4 of the new order. That Rule 7.4 provides, as follows:
7.4 Posting and Distribution Requirements.
7.4.1 Posting. Every employer subject to the COMPS Order must display a COMPS Order poster published by the Division in an area frequented by employees where it may be easily read during the work day. If the work site or other conditions make a physical posting impractical (including private residences employing only one worker, and certain entirely outdoor worksites lacking an indoor area), the employer shall provide a copy of the COMPS Order or poster to each employee within his or her first month of employment, and shall make it available to employees upon request. An employer that does not comply with the above requirements of this paragraph shall be ineligible for any employee-specific
credits, deductions, or exemptions in the COMPS Order, but shall remain eligible for employer- or industry-wide exemptions, such as exempting an entire employer or industry from any overtime or meal/rest period requirements in Rules 4-5.
7.4.2 Distribution. Every employer publishing or distributing to employees any handbook, manual, or written or posted policies shall include a copy of the COMPS Order, or a COMPS Order poster published by the Division, with any such handbook, manual, or policies. Every employer that requires employees to sign any handbook, manual, or policy shall, at the same time or promptly thereafter, include a copy of the COMPS Order, or a COMPS Order poster published by the Division, and have the employee sign an acknowledgement of being provided the COMPS Order or the COMPS Order poster.
7.4.3 Translation. Employers with any employees with limited English language ability shall:
(A) use a Spanish-language version of the COMPS Order and poster published by the Division, if the employee(s) in question speak Spanish; or
(B) contact the Division to request that the Division, if possible, provide a version of the COMPS Order and poster in another language that any employee(s) need.
Employers are reminded that, while the much-discussed overtime provisions of COMPS Order 36, Rule 7.4 suggests it will take effect on the COMPS Order’s own effective date of March 16, 2020. Employers should consider therefore complying by posting, distributing and obtaining signed acknowledgement pages for the COMPS Order in its entirety or just the poster, and to do so in English or such other language, including Spanish, as employees “with limited English language ability” may speak.
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The Division has also published guidance in the form of three new INFOs (Interpretive Notice & Formal Opinions) available on the Division’s Laws, Regulations, and Guidance webpage. The three INFOs published today are:
The Division’s INFOs are not binding law, but they are the Division’s officially approved opinions and notices to employers, employees, and other stakeholders as to how the Division applies and interprets various statutes and rules. The Division will continue to post and update INFOs on various topics; to suggest a topic, please email cdle_labor_standards@state.co.us.
Please continue to check this blog, www.l2slegal.com, where additional information regarding the CDLE’s announcement will be posted soon.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-02-21 16:06:502020-02-21 16:07:00BREAKING NEWS: COMPS Order 36
As previously posted, the DOL issued an opinion letter in 2019, purporting to jettison the Obama Administration’s 80-20 rule and expanding the ability to claim tip credits for tipped employees, specifically, during time when they do not earn tips (example, while wait staff vacuum and clean). Bloomberg BNA reports that opinion letter has met with rejection in the courts:
Restaurant chains have lost at least seven decisions over the last year in which federal district court judges refused to give deference to a 2018 Labor Department opinion letter advising restaurants to pay a lower minimum wage to tipped workers for tasks that don’t yield gratuities.
In most of those decisions, judges held that DOL wasn’t justified in turning its back on a standard that’s been in place for more than three decades.
Also as previously posted, the DOL issued a propose regulation to the same effect, which if finalized would become law, to which courts should defer in lawsuits.
Employers are reminded that Colorado law requires additional notice-posting to employees if a tip credit is to be claimed.
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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.
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As noted in a previous post, Colorado proposed a new wage order in 2019. On January 22, 2020, the Colorado Division of Labor and Employment finalized its new order — now called COMPS order #36 — effective March 16, 2020.
As noted in the previous post, COMPS order #36 is radical overhaul of Colorado’s prior wage orders. Among other things the changes include:
A title change: Reflecting the fact that this new order addresses far more than simple wages, its title will change from the “Colorado Wage Order” (WO) to the “Colorado Overtime and Minimum Pay Standards Order” (COMPS).
COMPS 36 will now reach almost all private employers in Colorado. Previous WOs had applied only to the following four industries: retail and service, commercial support service, food and beverage, and health and medical. COMPS will apply to all employers as a general rule, unless the employer falls within one of the newly defined exemptions set forth in prosed Rule 2 of COMPS. Therefore employers who previously considered themselves exempt from the WOs should now review COMPS to determine if it will become covered.
Minimum guaranteed salary: If covered COMPS will increase the minimum guaranteed salary to $42,500, effective 7/1/20, well above that in federal law. COMPS minimum will rise steeply thereafter, each year, to $57,500 effective 1/1/26 and be adjusted thereafter per the CPI.
Changes to particular job-specific exemptions have been proposed.
Changes to the timing of required rest periods and a requirement that employees who are not allowed their 10-minute rest period receive pay not only for the 10-minute rest period but an extra 10 minutes pay.
Changes to the ability to take credits and the ability to charge for uniforms.
Changes to the fluctuating workweek method of calculating overtime.
Expansion of anti-retaliation protections.
Expansion of employer obligations as to “transparency,” “language inclusiveness” and posters.
In addition, the as-finalized COMPS order #36 dramatically expanded the definition of an “employee” and “employer” in Colorado — in apparent reflection of similar narrowing in California — by mandating that a worker will be deemed an “employee” not an independent contractor who otherwise meets all requirements to be an independent contractor but who performs work that is itself part of the company’s own regular business. The CDLE explained this “entirely new factor to the ’employee’ analysis'” in its Statement of Basis, Purpose, Specific Statutory Authority, and Findings in support of COMPS Order #36, as follows:
For example: if a retail clothing store hires an outside plumber on a one-time or sporadic basis to make repairs as needed, the plumber’s services are not part of the store’s primary work — selling clothes. On the other hand, when a clothing manufacturer hires work-at-home seamstresses to make dresses, from cloth and patterns supplied by the manufacturer, that the manufacturer will sell, or when a bakery hires cake decorators to work on a regular basis on custom-designed cakes, the workers are performing the “primary work” of the hiring business.
Other changes to the prior draft order include a rule that workers who are putting on and taking off work clothes and gear (so-called “donning and doffing” cases) are engaged in work and accordingly must be paid for the such time if it takes “over one minute” and if it is not clothes/gear that is “worn outside work as well. Additionally COMPS order #36 will effectively require that, when a 10-minute break is otherwise required, nearly all such workers will need to be made to take their 10-minute breaks every 4 hours. Only workers who work under collectively bargained agreements that say otherwise will be allowed to take breaks outside a 4-hour period, as can some workers who work for certain Medicaid-funded entities.
Perhaps most importantly the final order also implemented a slower increase in the required guaranteed minimum salary for overtime exempt person in 2020 and 2021, then a steeper climb in 2023 to reach the previously planned 2024 minimum salary of $55,000.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-01-27 12:23:502020-01-27 12:23:50Colorado finalizes new wage order, COMPS Order no. 36, 7 CCR 1103-1 (2020)
