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COMPS Order 36 takes effect with some changes

Colorado Overtime and Minimum Pay Standards (COMPS) Order 36 took effect March 16, 2020 with some revisions and additional commentary by the Colorado Department of Labor and Employment.

First, in another Statement of Basis, Purpose, Specific Statutory Authority, and Findings for Adoption as Temporary or Emergency Rules, the CDLE issued a multi-page detailed explanation of its opinion that Colorado state wage-hour law on the Joint Employer doctrine is and, in its further opinion, has been contrary to and stricter than federal law. The CDLE announced there it will soon commence regulatory rulemaking on the Joint Employer doctrine to further solidify its reading of Colorado state wage-hour 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.

Reminder, Colorado employers, new ban-the-box law will take effect soon

Colorado employers are reminded that Colorado’s new ban-the-box law will take effect September 1, 2019 for employers with more than 10 employees (then September 1, 20121 for all other employers). Together with the crop of other new Colorado employment laws this year, Colorado employers should:

  • Review and revise their handbooks, workplace policies, and hiring documents accordingly.
  • Review and revise their hiring and promotion practices.
  • Consider undertaking an audit of pay levels as encouraged now by HB19-085.
  • Review wage compliance practices.
  • Train supervisor, manager and HR accordingly.

Gov. Polis signs three new Colorado laws into effect

The Denver Business Journal is reporting that Colorado Governor Polis has signed three new Colorado laws into effect. As the DBJ reports, each came with some opposition and will have impacts on employers in Colorado.

Gov. Jared Polis on Monday signed a trio of bills that he said will improve the fortunes of working-class Coloradans — even as opponents have criticized the measures will make life harder for employers and possibly steer companies away from expanding in Colorado.

These laws are:

  1. Colorado House Bill 19-1025 is a “Ban the Box” law. It restricts, with some exceptions, an employer’s ability to inquire, especially on applications, about prior criminal history.
  2. Colorado House Bill 19-1210, which permits local governments to increase the minimum wage in their jurisdictions above Colorado’s statewide minimum.
  3. Colorado HB 19-1306, which requires the Colorado Department of Labor and Employment to report “data that it currently collects regarding the call center work force, including tracking call center jobs and wage analysis of customer service employees,” quoting the bill’s official summary.

These laws now join in effect, the previously signed (May 22, 2019) HB19-085 (Equal Pay for Equal Work Act) and (May 16, 2019) HB19-1267 (criminalizing “wage theft” in cases of willful failure to pay wages owed).

Taken together, employers have good reason to immediately:

  • Review and revise their handbooks, workplace policies, and hiring documents accordingly.
  • Review and revise their hiring and promotion practices.
  • Consider undertaking an audit of pay levels as encouraged now by HB19-085.
  • Review wage compliance practices.
  • Train supervisors, managers and HR accordingly.

 

California Court of Appeals rejects double-dipping for penalties in certain wage-hour cases

California state law provides for penalties and other liability under California’s Private Attorney Generals Act when an employer fails to provide an accurate, itemized wage statement (which statements must contain certain types of information further specified under California law). But what if the statement was correct when issued but later the employer is held liable for additional amounts, such as overtime or minimum wage amounts? Do otherwise correct wage statements become retroactively inaccurate because the employer is later held liable for additional amounts like overtime or minimum wage? Contending that it does, it has not been uncommon in California for plaintiffs in wage-hour casesto file wage-statement claims demanding the extra penalties.

A division of the California Court of Appeals recently rejected double-dipping, holding that, no, the wages statement do not become retroactively inaccurate, such that an employer becomes liable for extra wage-statement related penalties when they are found liable for amounts like overtime and minimum wage.

Source: Maldonado v. Epsilon Plastics, case no. B278022 (Cal.App. 4/18/18).