By Payroll and Entitlements Editorial Staff
The Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics will hold a public hearing on proposed Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) No. 36 (2020), to replace Colorado Minimum Wage Order No. 35 (2019).
The public hearing is scheduled for December 16, 2019, 3:00 p.m. to 6:00 p.m., at the Colorado Division of Labor and Statistics, 12th Floor Conference Room, 633 17th Street, Denver, CO 80202. Comments must be submitted by December 31, 2019.
The proposed rulemaking addresses minimum wage and overtime wages and other wage and workplace conditions.
The current Colorado Minimum Wage Order No. 35 (2019) covers employees working in the following industries: (A) Retail and Service; (B) Commercial Support Service; (C) Food and Beverage; and (D) Health and Medical. The proposed rulemaking would expand coverage to all Colorado workers. The definition of “employee” and “employer” are updated based on changes made by H.B. 1267, L. 2019, enacted on May 16, 2019.
H.B. 1267 amends Section 8-4-101 to define “employee” as meaning any person, including migratory labor, performing labor or services for the benefit of the employer, and incorporates as relevant factors in determining if a person is an “employee” the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer; An individual primarily free from control and direction in the performance of service, both under contract and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an “employee.” For the definition of “employer,” H.B. 1267 adopts by reference the definition of employer under the federal Fair Labor Standards Act, 29 U.S.C. Sec. 203(d), and includes a foreign labor contractor and a migratory field labor contractor or crew leader, but exempts state and local government entities from Article 4.
In addition, the proposed rulemaking would provide new minimum salary exemption thresholds for employee exemptions from overtime and break rights, starting at $42,500 (approximately 20% above the federal level) and rising $2,500 annually from 2021 through 2026 to reach $57,500 in 2026. These exemption would then be adjusted annually after that, based on increases in the Consumer Price Index.
The proposed rulemaking also adds an “owner” exemption for those who help manage a business and have 20% ownership of the company and a “nonprofit proprietor” exemption, provided the person is paid at least a minimum salary specified in the rules. Exemptions for “companions” and other “domestic” workers are removed in the proposed rules—Instead any worker would need to qualify as an “independent contractor” in order to be exempt.
The proposed rulemaking also clarifies existing wage order exemptions and provides for higher standards by localities by clarifying what applies is to be the greater of whatever federal, state, or local wage rules apply.
Further, in handling wage claims, the Division will accept complaints for unpaid wages required by local law, state law, or federal law, to be “in conformity with court holdings that unpaid wages required by federal law are a violation of Colorado’s wage payment law.”
Finally, the proposed rulemaking expands posting requirements, to provide for alternatives to posting in the workplace, such as including a copy of the poster or order in the employer’s handbook or policies or providing a copy to each employee, as well as providing posters in Spanish or, if feasible, in another language when requested by the employer. (Colorado Division of Labor Standards and Statistics, Notice of Public Hearing; Fact Sheet; and Statement of Basis, Purpose, Authority, and Findings.)
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