Current through Register Vol. 47, No. 17, September 10, 2024
1.1 Authority
and relation to prior orders. Colorado Overtime and Minimum Pay Standards Order
("COMPS Order") #39 replaces COMPS Order #38 (2022) and prior orders, except
that the provisions of prior orders still govern as to events occurring while
they were in effect. The COMPS Order is issued under the authority of, and as
enforcement of, Colorado Revised Statutes ("C.R.S.") Title 8, Articles 1, 4, 6,
12, 13.3, and 13.5, and is intended to be consistent with the requirements of
the State Administrative Procedure Act, C.R.S. §
24-4-101, et seq. Unless otherwise
noted, in these Rules: all statutes cited apply the most recent 2023 versions
of the Colorado Revised Statutes; all rules cited apply the most recent
versions adopted as of the adoption of these Rules. See Appendix A for
citations. The effective date of COMPS Order #39 is January 1, 2024.
1.2 Incorporation by reference. 29 C.F.R.
Part 541 Subpart G; Colo. Const. art. XVIII, § 15; Title 8, Articles 1, 4,
6, and 13.3 of the Colorado Revised Statutes; 7 CCR 1103-7; 7 CCR 1103-8; 7 CCR
1103-11; and 7 CCR 1103-14 are hereby incorporated by reference into this rule.
Earlier versions of such laws and rules may apply to events that occurred in
prior years. Such incorporation excludes later amendments to or editions of the
constitution, statutes, and rules; all cited laws are incorporated in the forms
that are in effect as of the effective date of this COMPS Order. 7 CCR 1103-14,
the Publication And Yearly Calculation of Adjusted Labor Compensation Order
("PAY CALC Order"), states the periodically-adjusted dollar amounts of the
minimum wages and minimum pay and income levels for exemptions required in the
COMPS Order. All sources cited or incorporated by reference are available for
public inspection at the Colorado Department of Labor and Employment, Division
of Labor Standards & Statistics, 633 17th Street, Denver CO 80202. Copies
may be obtained from the Division of Labor Standards & Statistics at a
reasonable charge. They can be accessed electronically from the website of the
Colorado Secretary of State. Pursuant to C.R.S. §
24-4-103 (12.5)(b), the agency
shall provide certified copies of them at cost upon request or shall provide
the requestor with information on how to obtain a certified copy of the
material incorporated by reference from the agency originally issuing them. All
Division Rules are available to the public at
www.coloradolaborlaw.gov.
Where these Rules have provisions different from or contrary to any
incorporated or referenced material, the provisions of these Rules govern, so
long as they are consistent with Colorado statutory and constitutional
provisions.
1.3 "Director" means
the Director of the Division of Labor Standards and Statistics.
1.4 "Division" means the Division of Labor
Standards and Statistics in the Colorado Department of Labor and
Employment.
1.5 "Employee," as used
in the COMPS Order and the PAY CALC Order, has the following definitions.
(A) Under the Colorado Wage Act (CWA), as
defined by C.R.S. §
8-4-101(5):
"Employee" means any person, including a migratory laborer, performing labor or
services for the benefit of an employer. For the purpose of the COMPS Order,
relevant factors in determining whether a person is an employee include 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; except that an individual primarily free from control and direction
in the performance of the service, both under his or her contract for the
performance of service 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."
(B)
Under the Healthy Families and Workplaces Act (HFWA), as defined by C.R.S.
§
8-13.3-402(4):
"Employee" has the meaning set forth in section
8-4-101(5) but
does not include an "employee" as defined in 45 U.S.C. sec 351(d) who is
subject to the federal "Railroad Unemployment Insurance Act",
45 U.S.C. sec.
351 et seq.
(C) Under the Agricultural Labor Rights and
Responsibilities Act, Colorado Senate Bill 21-87, as defined by C.R.S. §
8-6-101.5(3):
"agricultural employee" or "agricultural worker" has the "same meaning as under
C.R.S. §
8-13.5-201(3)" ("A
worker engaged in any service or activity included in section 203(f) of the
federal 'Fair Labor Standards Act of 1938',...as amended...or section 3121(g)
of the federal 'Internal Revenue Code of 1986', as
amended").
1.6
"Employer," as used in the COMPS Order and the PAY CALC Order, has the
following definitions.
(A) Under CWA, as
defined by C.R.S. §
8-4-101(6):
"Employer" has the same meaning as set forth in 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; except that the
provisions of the COMPS Order do not apply to the state or its agencies or
entities, counties, cities and counties, municipal corporations,
quasi-municipal corporations, school districts, and irrigation, reservoir, or
drainage conservation companies or districts organized and existing under the
laws of Colorado.
(B) Under HFWA,
as defined by C.R.S. §
8-13.3-402(5):
"Employer" has the meaning set forth in section
8-4-101(6); except
that the term includes the state and its agencies or entities, counties, cities
and counties, municipalities, school districts, and any political subdivisions
of the state but does not include the federal government.
(C) Under the Agricultural Labor Rights and
Responsibilities Act, Colorado Senate Bill 21-87, as defined by C.R.S. §
8-2-206(1)(c):
"agricultural employer" has the "same meaning provided in C.R.S. §
8-3-104(1)" ("a
person that is engaged in any service or activity included in section 203(f) of
the federal 'Fair Labor Standards Act of 1938', ... as amended," or engaged in
"agricultural labor, as defined in section 3121 of the federal 'Internal
Revenue Code of 1986'," that either (1) contracts with any person who recruits,
solicits, hires, employs, furnishes, or transports agricultural employees, or
(2) regularly engages the services of one or more agricultural
employees).
1.7 "Minor,"
for purposes of wage provisions specific to minors, means a person under 18
years of age, but not one who has received a high school diploma or a passing
score on the general educational development examination. "Emancipated minor"
means any individual less than eighteen years of age who meets the definition
provided by C.R.S. §
8-6-108.5.
1.8 "Regular rate of pay" means the hourly
rate actually paid to employees for a standard, non-overtime workweek.
Employers need not pay employees on an hourly basis. If pay is on a piece-rate,
salary, commission, or other non-hourly basis, any overtime compensation is
based on an hourly regular rate calculated from the employee's pay.
1.8.1 Pay included in regular rate. The
regular rate includes all compensation paid to an employee, including set
hourly rates, shift differentials, minimum wage tip credits, non-discretionary
bonuses, production bonuses, and commissions used for calculating hourly
overtime rates for non-exempt employees. Business expenses, bona fide gifts,
discretionary bonuses, tips, employer investment contributions, vacation pay,
holiday pay, sick leave, jury duty, or other pay for non-work hours may be
excluded from regular rates.
1.8.2
Regular rate for employees paid a weekly salary or other non-hourly basis.
(A) A weekly salary or other non-hourly pay
may be paid as straight time pay for all work hours, and the regular rate each
workweek will be the total paid divided by hours worked, if the parties have a
clear mutual understanding that the salary is:
(1) compensation (apart from any overtime
premium) for all hours each workweek;
(2) at least the applicable minimum wage for
all hours in workweeks with the greatest hours;
(3) supplemented by extra pay for all
overtime hours (in addition to the salary that covers the regular rate) of an
extra 1/2 of the regular rate; and
(4) paid for whatever hours the employee
works in a workweek.
(B)
Where the requirements of (1)-(4) are not carried out, there is not the
required "clear mutual understanding" that the non-hourly pay provides the
regular rate for all hours with extra pay added for overtime hours. Absent such
an understanding, the hourly regular rate is the applicable weekly pay divided
by 40, the number of hours presumed to be in a workweek for an employee paid no
overtime premium.
1.8.3
The regular rate for an employee working two or more non-exempt jobs at
different hourly pay rates for the same employer within a specific workweek
shall be calculated as follows:
(A) Rate based
on a weighted average: The employee's regular rate for the particular workweek
is determined by adding together all the wages earned performing each job, then
dividing that amount by the total number of hours worked in all jobs,
consistent with the federal Fair Labor Standards Act (FLSA) and resulting in a
weighted average rate of pay, or
(B) Rate based on the job actually performed
during overtime hours: The employee's regular rate is the regular rate of
hourly pay for the job being performed during the actual overtime hours.
If there is no written agreement between the employee and the
employer as to the method of calculating the regular rate of pay in advance of
performing the work, the employee's regular rate shall be calculated using the
"weighted average" method described above in 1.8.3(A).
1.9 "Time worked" means
time during which an employee is performing labor or services for the benefit
of an employer, including all time s/he is suffered or permitted to work,
whether or not required to do so.
1.9.1
Requiring or permitting employees to be on the employer's premises, on duty, or
at a prescribed workplace (but not merely permitting an employee completely
relieved from duty to arrive or remain on-premises) - including but not limited
to putting on or removing required work clothes or gear (but not a uniform worn
outside work as well), receiving or sharing work-related information, security
or safety screening, remaining at the place of employment awaiting a decision
on job assignment or when to begin work, performing clean-up or other duties
"off the clock," clocking or checking in or out, or waiting for any of the
preceding - shall be considered time worked that must be compensated; except
that whether an employer must compensate an activity (or combination of
multiple activities consecutively) of less than one minute depends on the
balance of the following factors, as shown by the employer:
(A) the difficulty of recording the time, or
alternatively of reasonably estimating the time;
(B) the aggregate amount of compensable time,
for each employee as well as for all employees combined; and
(C) whether the activity was performed on a
regular basis.
1.9.2
"Travel time" means time spent on travel for the benefit of an employer,
excluding normal home to work travel, and shall be considered time worked. At
the start or end of the workday, travel to or from a work station, entirely
within the employer's premises and/or with employer-provided transportation,
shall not be considered time worked, except that such travel is compensable if
it is:
(A) time worked under Rule 1.9 -
1.9.1;
(B) after compensable time
starts or before compensable time ends under Rule 1.9 - 1.9.1; or
(C) travel in employer-mandated
transportation (1) that materially prolongs commute time or (2) in which
employees are subjected to heightened physical risk compared to an ordinary
commute.
1.9.3 "Sleep
time" means time an employee may sleep, which is compensable as follows. Where
an employee's shift is 24 hours or longer, up to 8 hours of sleeping time may
be excluded from overtime compensation, if:
(A) an express agreement excluding sleeping
time exists;
(B) adequate sleeping
facilities for an uninterrupted night's sleep are provided;
(C) at least 5 hours of sleep are possible
during the scheduled sleep period; and
(D) interruptions to perform duties are
considered time worked.
When an employee's shift is less than 24 hours, periods when
s/he is permitted to sleep are compensable work time, as long as s/he is on
duty and must work when required. Only actual sleep time may be excluded, up to
a maximum of 8 hours per workday. When work-related interruptions prevent 5
hours of sleep, the employee shall be compensated for the entire
workday.
1.10 "Tipped employee" means any employee who
regularly receives more than $1.64 per hour in tips (averaged over any pay
period permitted by C.R.S. §
8-4-103). Tips include amounts
designated as a tip by credit card customers on their charge slips.
(A) Nothing in this rule prevents an employer
from requiring employees to share or allocate such tips or gratuities on a
pre-established basis among other tipped employees who perform significant
customer-service functions in contact with patrons - which includes employees
with duties typical of the following occupations, whether or not customers tip
them directly: servers; bussers (i.e., server helpers); counter personnel who
serve customers; sushi or teppanyaki chefs who are similar to counter personnel
because they have direct contact and interact with customers, and prepare and
serve meals to customers (in bar areas or at tables); service bartenders;
bartender assistants or barbacks who are similar to bussers because they learn
bartending under the tutelage of a bartender they support and from whom they
receive their tips while working in the bar area and interacting with
customers; sommeliers who explain the wine list to, bring the selected wine
bottle to, and serve wine to customers; and bellhops.
(B) Employer-required sharing of tips with
management, or with employees who do not have such duties, or deduction of
credit card processing fees from tipped employees, shall nullify allowable tip
credits towards the minimum wage.
1.11 "'Wages' or 'compensation'" has the
meaning provided by C.R.S. §
8-4-101(14) and
includes paid sick leave under the Healthy Families and Workplaces Act, C.R.S.
§
8-13.3-402(8)(b).
1.12 "Workday" means any consecutive 24-hour
period starting with the same hour each day and the same hour as the beginning
of the workweek. The workday is set by the employer and may accommodate
flexible shift scheduling.
1.13
"Workweek" means any consecutive set period of 168 hours (7 days) starting with
the same calendar day and hour each week.