Colorado: Clarification to Recent Wage Order and Extension on Deadlines due to COVID-19

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The Colorado Overtime and Minimum Pay Standards Order Number 36 (COMPS 36) went into effect on March 16, 2020, implementing a number of wage and hour regulations.  However, the Colorado Department of Labor and Enforcement made a number of changes as the wage order went into effect, including provision of a one-month grace period on employer notice requirements and agency-initiated investigations.

More specifically, the grace period lasts through April 16, 2020 and applies to the below components of COMPS 36:

  • Posting and Notice Requirement: employers have until the extended deadline to post (or individually distribute, if physical posting is impractical) a copy of the COMPS 36 order visible to all employees.  A copy of the order must also be added to the employer’s handbook, policy manual, or written and posted policies, and employees must acknowledge receipt of the information.
  • Agency-Initiated Investigations: The Division of Labor Standards will not launch its own investigations based on violations of any new rules under COMPS 36 during the one-month grace period.  The Division will still investigate claims filed by employees, but it will not initiate its own investigation based on tips or leads.
  • No New Notices of Claim:  Typically, an employer that receives a notice of claim has 14 days to pay any due wages in order to avoid penalties.  The Division of Labor Standards abstained from sending any new notices of claim until April 1, 2020.
  • Penalties for Willful Violations: Employers who are found to have willfully violated the wage order, refused to pay wages, or falsely denied amount of wages may be subject to substantial penalties.  Violations covered by COMPS 36 and committed within the grace period will not be deemed a willful violation, so long as the employer remedies the violation by the April 16, 2020 deadline.

A number of provisions contained in the original wage order were also amended to provide clarity:

  • Wage Statement Requirements:  Employers must maintain records of certain employee information (e.g., name, address, date of birth, date of hire, daily record of hours worked, etc.) for a period of at least three years, and during any pending wage claim.  Rule 7.2 clarifies that an itemized earnings statement should contain any information indicated in Rule 7.1(d) – (e), the total hours worked in the pay period, and the employee and employer’s name.  Occupation, date of hire, and daily hours worked do not need to be included on paychecks, but this information must be accessible to employees either by (1) regular earnings statements, (b) through an electronic portal (such as ADP), or (3) provided upon employee request once per year and available for the entire calendar year by January 31 of the following year.
  • Direct Care/Support Companions Overtime Exemption: Companions designated as direct support professionals or direct care workers who are (1) scheduled for and work shifts of at least 24 hours, and (2) Medicaid-funded as defined in the wage order, are exempt from 12-hour daily overtime.
  • Joint Employer Standard:  Rule 1.6 clarifies that the joint employment standard follows the Colorado wage and hour standard, unless a narrower joint employer standard is adopted on a federal basis.

Action Items

  1. Review the text of COMPS 36 here.
  2. Have wage statements updated to include the required information.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

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