State Compliance Update

There’s a lot to cover, so let’s get started. 
 
Colorado Department of Labor and Employment (CDLE) Proposed “Colorado Overtime & Minimum Pay Standards” – COMPS Order #36 
 
On November 15, 2019, CDLE issued a proposed replacement for the Colorado Minimum Wage Order #35.  If adopted as is, this new order with very few exceptions. significantly impacts all Colorado employers 
 
The following is a summary of information regarding the proposed changes.  At the end, we include contact information to assist with submitting your comments to the State.   PLEASE MAKE YOUR OPINION KNOWN!
 

Time Line:

  • Proposed Rule:  11/15/19
  • Public Hearing:  12/16/19
  • Public Hearing Transcript:  12/17/19
  • Comment Period Ending:  12/31/19
  • Adoption of Final Rule:  01/10/20
  • Effective Date of Rule:  03/01/20 (exempt exception)
  • Effective Date of Rule for Exempt:  07/01/20 

 
Proposed Changes: 
 

Exempt Wages (proposed for 7/1/20 effective date)

  • Most positions qualifying for exempt status (no obligation for payment of overtime) relies on meeting certain wage thresholds and duty tests.  The Fair Labor Standards Act (FLSA) implemented a change in the federal minimum wage test effective 1/1/20 – most exempt positions must earn a minimum of $684.00 per week or $35,568.00 annually.  However, the new CDLE proposed rule inflates that number to $817.31 per week or $42,500.00 annually beginning 7/1/20.
  • Beginning in 2022, the minimum wage test increases by $3,000.00 annually each year until 2026.  At that point, the Consumer Price Index takes charge of indicating what the next increase should be, much like the increases for minimum wage for Colorado.
  • In addition, CDLE created various different exempt categories, including the standard FLSA’s executive, administrative, professional, and outside salespersons classifications.  However, many of the proposed new categories require extensive administrative oversight. 

Mandated Rest Periods Modification (non-exempt employees) 

  • Employers must provide a minimum of 10-minutes as a compensated break for non-exempt employees for every four hours of work performed.  As much as practical, these breaks must be scheduled in the middle of each four-hour period.
  • If the employee is unable to take the 10-minute break, the employee is entitled to an additional 10 minutes of compensation.  Specifically, the proposed Fact Sheet for Order #36 states “— when an employer must provide 10 minutes’ paid rest, but instead receives 10 minutes’ work, the employee has worked 10 extra minutes without 10 extra minutes’ pay.”
  • The CDLE does not address if the employer is liable for the additional compensation should the employee choose not to take the 10-minute break. 

Time Worked (non-exempt employees) 

  •  Travel Time
    • Travel time is clarified as any time spent on travel by the employee for the benefit of the employer.
    • Travel time does not include time for normal “to and from” work. 
  •  Sleep Time 
    • If the shift is 24 hours or longer, an eight-hour period of uninterrupted sleep may be excluded from compensation as expressly agreed upon by the employee and employer if: 
      • Adequate sleeping facilities are provided.
      • Any interruptions are compensated.
      • At least five hours of sleep are possible during the scheduled sleep period. 

Credits Against Minimum Wage

  • Certain employers take credits towards minimum wage for specific items, such as expenses paid for the employee for lodging, meals, and tips.
  • Under the new ruling, these credits may only be taken if the lodging, meals, and tips are voluntary for the employee and primarily benefit the employee.  

 Presents, Tips or Gratuities

  • If adopted, employers will no longer be able to deny presents, tips, or gratuities that are intended for employees.
  • If employers prevent employees from receiving presents, tips, or gratuities, they will violate the Colorado Wage Act. 

 Distribution of Order #36 

  • Many organizations follow best business practice and require employees to receive and state they will read employee handbooks, assisting with consistency and compliance of laws, regulations, and certain employment policies.
  • If an organization distributes policies or employee handbooks/manuals to employees, they will be required to include a copy of Order #36 or a related poster with the distribution.
  • If an organization requires employees to sign for the policies or employee handbooks/manuals, they will 
       be required to obtain the employee’s signature for Order #36 as well.
  • If organizations employ English-limited or non-English employees, the new ruling requires the employer to post Order #36 in Spanish and contact CDLE for translation to other languages used.
  • The new order does not address if the employer must distribute the information in different languages as required by the “distribution of handbooks” stipulation. 

Contact Information for Comment Submission 

Michael Primo:  

Email:  michael.primo@state.co.uS

Telephone #:  (303)  318-8400

Direct Mail:  Division of Labor Standards & Statistics, 633 17th Street, Denver, CO  80202 
 
The state has also created a “Google Form” individuals may complete and this form may be found at: 
 
https://docs.google.com/forms/d/e/1FAIpQLSfk1kPgJAivkPFpphHeXklaPbHPlZ_qSO0sgvjigr1DEVdzRg/viewform 

 

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