Current through Register Vol. 47, No. 17, September 10, 2024
2.1 Scope of
coverage. The COMPS Order regulates wages, hours, working conditions, and
procedures for all employers and employees for work performed within Colorado,
with the exceptions and exemptions contained within Rule 2.
2.2 Exemption from all except Rules 1, 2, and
8. The following are exempt from the COMPS Order except Rules 1 (Authority and
Definitions), 2 (Coverage and Exemptions), and 8 (Administration and
Interpretation).
2.2.1 Administrative
employees. This exemption covers a salaried employee, paid at least the
applicable salary in Rule 2.5 as specified for the applicable year in the PAY
CALC Order, who directly serves an executive, and regularly performs duties
important to the decision-making process of that executive. The executive and
employee must regularly exercise independent judgment and discretion in matters
of significance, with a primary duty that is non-manual in nature and directly
related to management policies or general business operations.
2.2.2 Executives or supervisors. This
exemption covers a salaried employee, paid at least the applicable salary in
Rule 2.5 as specified for the applicable year in the PAY CALC Order, who
supervises the work of at least two full-time employees and has the authority
to hire and fire, or to effectively recommend such action. The employee must
spend a minimum of 50% of the workweek in duties directly related to
supervision.
2.2.3 Professional
employees. This exemption covers a salaried employee, paid at least the
applicable salary in Rule 2.5 as specified for the applicable year in the PAY
CALC Order, employed in a field of endeavor whose primary duty is work that
requires (A) the consistent exercise of discretion and judgment, as
distinguished from routine work that is mental, manual, mechanical or physical,
and (B) either (1) knowledge of an advanced type in a field of science or
learning customarily acquired by a prolonged course of specialized intellectual
instruction and study, or (2) invention, imagination, originality or talent in
a recognized field of artistic or creative endeavor (as opposed to routine
mental, manual, mechanical or physical work, or work that primarily depends on
intelligence, diligence and accuracy). The professional employee must be
employed in the field in which s/he was trained.
2.2.4 Outside salespersons. This exemption
covers an employee working primarily away from the employer's place of business
or enterprise for the purpose of making sales or obtaining orders or contracts
for any commodities, articles, goods, real estate, wares, merchandise, or
services. The employee must spend a minimum of 80% of the workweek in
activities directly related to his or her own outside sales.
2.2.5 Owners or proprietors. This exemption
covers a full-time employee actively engaged in management of the employer who
either:
(A) owns at least a bona fide 20%
equity interest in the employer; or
(B) for a non-profit employer, is the
highest-ranked and highest-paid employee, and is paid at least the salary
threshold in Rule 2.5 as specified for the applicable year in the PAY CALC
Order.
2.2.6 Taxi cab
drivers employed by a taxi service provider licensed by a state or local
government.
2.2.7 In-residence
workers. This exemption covers the below-listed in-residence employees.
(A) Casual babysitters employed in private
residences directly by households, or directly by family members of the
individual(s) receiving care from the babysitter.
(B) Property managers residing on-premises at
the property they manage.
(C)
Student residence workers working in premises where they reside for sororities,
fraternities, college clubs, or dormitories.
(D) Laundry workers who (a) are inmates,
patients, or residents of charitable institutions, and (b) perform laundry
services, (c) in institutions where they reside.
(E) Field staff of seasonal camps or seasonal
outdoor education programs who primarily provide supervision or education of
minors, or education of adults; are required to reside on-premises or in the
field; are provided adequate lodging and all meals free of charge and without
deduction from wages; and as of January 1, 2021, are paid the amount required
by subpart (1) below (with no minimum pay required before January 1, 2021).
(1) This exemption requires that field staff
be paid either (a) the applicable Colorado minimum wage for all hours worked,
or (b) a salary (i) equivalent to at least 42 hours per week at the Colorado
minimum wage (with the 15% hourly wage reduction that Rule 3.3 permits for
unemancipated minors), (ii) with hourly wage reduced one-sixth (1/6) for
non-profit employers with annual total gross revenue of $25 million or less,
and (iii) reduced $200 per week as a credit for facilities provided (lodging,
meals, and other facilities), as specified for the applicable year in the PAY
CALC Order.
(2) "Seasonal" in this
Rule means a camp or program that either (a) does not operate for more than
seven months in a year, or (b) during the preceding calendar year had average
receipts for any six months of not more than one-third (1/3) of its average
receipts for the other six months.
2.2.8 Bona fide volunteers and work-study
students. This exemption covers those who need not be compensated under the
federal Fair Labor Standards Act (29 U.S.C. §§
201 et seq.) as either:
(A) enrolled students receiving credit for an
unpaid work-study program or internship; or
(B) bona fide volunteers for non-profit
organizations.
2.2.9
Elected officials and their staff. This exemption covers individuals elected to
public office and members of their staff.
2.2.10 Employees in highly technical
computer-related occupations. This exemption covers an employee paid a salary,
or hourly compensation, in accord with Rule 2.5, and as specified for the
applicable year in the PAY CALC Order, who:
(A) is a skilled worker employed as a
computer systems analyst, computer programmer, software engineer, or other
similarly highly technical computer employee;
(B) who has knowledge of an advanced type,
customarily acquired by a prolonged course of specialized formal or informal
study; and
(C) spends a minimum of
50% of the workweek in any combination of the following duties -
(1) the application of systems analysis
techniques and procedures, including consulting with users, to determine
hardware, software, or system functional specifications,
(2) the design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design
specifications, or
(3) the design,
documentation, testing, creation, or modification of computer programs related
to machine operating systems.
2.2.11 Highly compensated employees. This
exemption covers an employee who:
(A) is paid
annual wages of at least -
(1) weekly, the
weekly salary for the executive, professional, or administrative exemption, as
specified for the applicable year in the PAY CALC Order, and
(2) annually, two and one-quarter times the
rounded annual salary for the executive, professional, or administrative
exemption, as specified for the applicable year in the PAY CALC
Order;
(B) customarily
and regularly performs any one or more of the exempt duties or responsibilities
of an executive, administrative or professional employee (as described in Rules
2.2.1-2.2.3); and
(C) whose primary
duty is office or non-manual work - for example, non-management production-line
workers and non-management employees in maintenance, construction and similar
occupations such as carpenters, electricians, mechanics, plumbers, iron
workers, craftsmen, operating engineers, longshoremen, construction workers,
laborers and other employees who perform work involving repetitive operations
with their hands, physical skill and energy are not exempt under this section
no matter how highly paid they might be.
2.2.12 National Western Stock Show. This
exemption covers temporary employees employed directly by the Western Stock
Show Association for the annual National Western Stock Show.
2.3 Agriculture.
2.3.1 Minimum Wages. All minimum wage laws
and rules apply to all employees of all agricultural employers, except as
otherwise provided for "range workers" in Rule 2.4.9.
2.3.2 Overtime and Maximum Hours Protections.
(A) Agricultural employees of agricultural
employers are exempt from both the 40-hour weekly and the 12-hour daily
overtime pay requirements in Rule 4.1.1, provided that such employees receive
the following.
(1) Weekly overtime pay, at one
and one-half times their regular rate of pay, after 60 hours worked per
workweek from November 1, 2022, through December 31, 2023, and thereafter as
follows, and as listed in the summary table below:
(a) at a highly seasonal agricultural
employer (defined in Rule 2.3.2(C)), (i) after 56 hours worked per workweek
during any up to 22-workweek period, or any two or three periods of at least
four workweeks each totaling up to 22 weeks, that the employer designates as
its peak labor period(s), and (ii) otherwise after 48 hours worked per week;
and
(b) at an agricultural employer
that is not highly seasonal, (i) after 54 hours worked per workweek in 2024,
and (ii) after 48 hours worked per workweek as of January 1, 2025;
except
(c) at a small agricultural
employer (defined in Rule 2.3.2(B) below), whether or not highly seasonal,
after 56 hours worked per workweek in 2024, then whichever of (a) or (b)
applies as of January 1, 2025.
Summary Table: Weekly Overtime
Requirements for Agricultural Employers
|
Time Period
|
(a) Highly Seasonal Employers
|
(b) Non-Highly Seasonal
Employers
|
(c) Small Employers (seasonal or
not)
|
Until 11/1/22
|
[ No requirements ]
|
11/1/22- 12/31/23
|
60 hours
|
2024
|
56 hours for up to 22 peak weeks;
48 hours otherwise
|
54 hours
|
56 hours
|
2025 -
|
48 hours
|
[No separate rule for small employers; apply (a) or
(b)] |
(2) Beginning November 1, 2022:
(a) in lieu of 12-hour daily overtime pay
under Rule 4.1.1, 30 minutes for the third Rule 5.2 paid rest period (rather
than 10 minutes or any other duration under 30 minutes otherwise applicable to
that rest period) - except that if the employer had no reason to believe an
employee would exceed 12 hours until the twelfth hour worked, then the
additional break time may be provided on the employee's next workday;
and
(b) for a workday with more
than 15 hours of work, or for more than 15 consecutive hours of work (as
provided by Rule 4.1.5) without regard to the start and end time of the
workday, an additional lump-sum payment equal to one hour of the Colorado
minimum wage, as specified for the applicable year in the PAY CALC
Order.
(B)
"Small agricultural employer" means an agricultural employer that:
(1) employed fewer than four employees on
average over the three prior calendar years (or as many complete prior calendar
years as they have been in operation); and
(2) had average adjusted gross income, over
the three prior complete taxable years preceding 2024 (the year that small
agricultural employers have a different overtime standard), of no more than
$1,000,000. Employers in operation fewer than three complete taxable years
shall use as many complete taxable years as they have been in operation;
employers not yet in operation for any complete taxable years shall be
considered below the threshold.
(C) "Highly seasonal agricultural employer"
means an agricultural employer that, in any up to 22-workweek period (or any
two or three periods, of at least four workweeks each, totaling up to 22 weeks)
in the prior calendar year, had at least twice as many employees as the rest of
the year, and provides the following to those it would pay weekly overtime
after 56 rather than 48 hours in peak weeks.
(1) An initial disclosure, at least annually,
(a) that weekly overtime pay will be after 56
rather than 48 hours for up to 22 peak weeks,
(b) whether those peak weeks will be divided
into one, two, or three periods (of four weeks or more), and
(c) a good-faith estimate of the months in
which the peak weeks will occur.
The initial disclosure must be provided to employees at least
30 days in advance of the first expected peak week (or upon hiring for those
start work fewer than 30 days in advance), except for those employed under, and
in compliance with federal requirements for, temporary work visas, no later
than the date of the worker's visa application, contemporaneous with required
federal pre-employment written disclosures to visa workers ordinarily due by
the date of the worker's visa application.
(2) Written notice, at least annually, of
which weeks will be the peak weeks, no later than the seventh day before the
first peak week (or upon hiring for those starting work after the seventh day).
The employer may change which are the peak weeks after that notice if:
(a) it provides at least one week's written
notice of any week being added or removed as a peak week;
(b) the initial disclosure was the employer's
good-faith, reasonable expectation of which weeks would be the peak weeks;
and
(c) the changes are based on
circumstances not foreseeable at the time of the initial disclosure (for
example, a late frost).
(3) All required notices and disclosures
related to peak weeks in English and any language that is the first language
spoken by at least five percent of the employer's workforce at any point during
the year.
(D) An
agricultural employee is exempt from all overtime pay requirements in the COMPS
Order if (by blood, adoption, or marriage) they are the child, sibling, spouse,
parent, aunt, uncle, nephew, niece, first cousin, grandchild, or grandparent of
a family owner of an employer. For this exemption, a "family owner" is an
individual with an ownership interest in an agricultural employer that is
either (a) a majority interest or (b) an at least 10% interest that combines
with those of other family members of that owner (of any type of relative
listed in the prior sentence) to form a majority interest. If a family owner is
also an "employee" of the agricultural employer, they also are exempt from all
overtime pay requirements in the COMPS Order.
(E) How many employees an agricultural
employer has, for purposes of the above definitions of "small agricultural
employer" in (B), and "highly seasonal agricultural employer" in (C), shall be
determined as follows.
(1) Employees shall be
counted at the worksite for which the definition is being assessed, and shall
count proportionally as follows, based on their average hours worked in all
weeks in the preceding year with at least one hour worked:
(a) 35 hours per week or more, 1.0;
(b) between 15 and 35 hours per week, 0.5;
and
(c) under 15 hours per week,
0.
(2) Employers need not
rely on prior staffing levels to qualify for the "small agricultural" or
"highly seasonal" employee thresholds if they (a) have been in operation for
less than one calendar year, or (b) did not qualify based on their prior
staffing levels, but have a good-faith, objectively reasonable belief that they
will qualify for the present year. If their belief that they will qualify for
the threshold proves incorrect, they must pay affected employees back pay for
any additional overtime owed, plus 5%, by 30 days from the date the employer
has notice that it will not qualify for the threshold for the year, or (if they
lacked notice until the end of the year) by 30 days from the end of that
calendar year.
(F) The
Rule 2.3.2 exemption does not apply if an employer draws at least 50% of its
annual dollar volume of business from sales to the consuming public (rather
than for resale) of any services, commodities, articles, goods, wares, or
merchandise; prior Orders for decades have covered any such employer, in any
industry. E.g., Order #35, Rule 2(A) (covering any employer "that sells or
offers for sale, any service, commodity, article, good, ... wares, or
merchandise to the consuming public" and draws "50% or more of its annual
dollar volume ... from such sales," rather than from sales to other businesses
"for resale").
2.3.3 Meal
and Rest Periods.
(A) In addition to the meal
and rest periods required by Rule 5, an agricultural employer shall provide
agricultural employees engaged in hand-weeding and hand-thinning an additional,
five-minute rest period, which, insofar as is practicable, must be in the
middle of each work period.
(B) The
requirement of meal and rest periods in Rule 2.3.3 and Rule 5 does not apply to
a truck driver whose sole and principal duty is to haul livestock or to a
combine or harvester operator while harvesting.
2.4 Exemptions from Overtime Requirements of
the COMPS Order. The following employees are exempt from Rule 4 (Overtime)
unless otherwise specified.
2.4.1 Certain
Salespersons and Mechanics. Salespersons, parts-persons, and mechanics employed
by automobile, truck, or farm implement (retail) dealers; and salespersons
employed by trailer, aircraft, and boat (retail) dealers are exempt from Rule 4
(Overtime).
2.4.2 Commission Sales.
Sales employees of retail or service industries paid on a commission basis,
provided that at least 50% of their total earnings in the pay period is derived
from commission sales, and their regular rate of pay is at least one and
one-half times the minimum wage, are exempt from Rule 4 (Overtime). This
exemption is applicable for only employees of retail or service employers who
receive over 75% of their annual dollar volume from retail or service
sales.
2.4.3 Ski Industry.
Employees of the ski industry performing duties directly related to ski area
operations for downhill skiing or snowboarding, and those employees engaged in
providing food and beverage services at on-mountain locations, are exempt from
(within Rule 4) the 40-hour overtime requirement but not the requirement of
overtime pay for over 12 hours that are consecutive or are within a workday.
This partial overtime exemption does not apply to ski area employees performing
duties related to lodging.
2.4.4
Medical Transportation. Employees of the medical transportation industry who
work 24-hour shifts are exempt from the Rule 4.1.1(B)-(C) daily (12-hour)
overtime rules if they receive the required Rule 4.1.1(A) weekly (40-hour)
overtime pay.
2.4.5 Eight and
Eighty Rule. A hospital or nursing home may seek an agreement with individual
employees to pay overtime pursuant to the provisions of the federal Fair Labor
Standards Act "8 and 80 rule" whereby employees are paid time and one-half
their regular rate of pay for any work performed in excess of 80 hours in a 14
consecutive day period and for any work in excess of 8 hours per day.
2.4.6 Drivers, and Driver's Helpers, Subject
to the Federal Motor Carrier Act ("MCA"). Drivers and their driver's helpers
are exempt from Rule 4 (overtime) and Rule 5 (rest and meal periods) while and
to the extent that they are:
(A) subject to
the federal MCA and exempt from overtime requirements of the FLSA pursuant to
29 U.S.C. §
213(b)(1) and regulations
promulgated thereunder;
(B) working
on MCA-covered non-passenger vehicles, or on MCA-covered passenger vehicles
qualifying as commercial motor vehicles requiring a commercial driver's license
("CDL") -- but not on vehicles that transport workers to and from manual work
jobs (
e.g., landscaping or lawn care, construction or roofing,
cleaning or janitorial, or other manual labor) and do not require a CDL;
and
(C) paid compensation
equivalent to at least 50 hours at the Colorado minimum wage with overtime, as
specified for the applicable year in the PAY CALC Order, regardless of whether
the pay is hourly, salaried, piece rate, or on another
basis.
2.4.7 Direct
Support and Care. The Rule 4.1.1(B)-(C) daily (12-hour) overtime rule does not
apply to companions designated as direct support professionals/direct care
workers who are scheduled for, and work, shifts of at least 24 hours providing
residential or respite services and who are employed by service providers and
agencies that receive at least 75% of their total revenue from Medicaid or
other governmental sources, and who provide services within Medicaid home- and
community-based service waivers.
2.4.8 Decision-Making Managers at Livestock
Employers. The Rule 2.3.2 and Rule 4 overtime rules do not apply to
decision-making managers at livestock employers, defined as follows.
(A) A "decision-making manager" (for purposes
of this exemption) is an employee primarily engaged in livestock work:
(1) who is paid at least the applicable
salary in Rule 2.5, as specified for the applicable year in the PAY CALC
Order;
(2) who is not employed in
the position on a seasonal or temporary basis (i.e., not expected to remain in
the position for less than 12 months); and
(3) whose primary duties require routine
exercise of independent judgment and discretion in matters of significance, and
who either
(a) supervises two or more
full-time employees, or
(b) reports
directly to an owner (majority or minority), or to an executive-level employee
who reports directly to such an owner, who routinely exercises independent
judgment and discretion in matters of significance, whether in manual or
non-manual labor (e.g., the owner's second-in-command, or the head of the site
where the exempt employee works).
(B) A "livestock employer" (for purposes of
this exemption) is an agricultural employer with significant responsibilities
for "livestock" (as defined under the FLSA) care and health - a dairy, cattle
ranch, feedlot, or similar employer - that does not qualify as a "highly
seasonal" employer under Rule 2.3.2.
2.4.9 Range workers. The Rule 2.3.2 and Rule
4 overtime rules do not apply to range workers who are paid at least the
minimum range worker salary (as specified in the PAY CALC Order for the
applicable year) during periods when they are "principally engaged in the range
production of livestock ... on the open range" (as defined by C.R.S. §
8-6-101.5(1)(b)),
and are provided without cost or deduction any housing, food, transport, and
equipment required for H-2A visa range workers by federal
regulations.
2.4.10 Voluntary shift
trades by employees of interstate air carriers. Hours worked by an employee of
a carrier by air engaged in interstate or foreign commerce shall not count
toward the number of hours worked for the purposes of Rule 4 when such hours
are voluntarily worked by the employee pursuant to a shift-trading practice
under which the employee has the opportunity in the same or in other workweeks
to reduce hours worked by voluntarily offering a shift for trade or
reassignment.
2.5 Salary
Thresholds for Certain Exemptions.
2.5.1 For
COMPS Order exemptions requiring a salary, the "Salary Requirement" rules of
the federal Fair Labor Standards Act in 29 C.F.R. Part 541 Subpart G, apply,
except that under the COMPS Order, the salary must be at least the level
specified for the applicable year in the PAY CALC Order and sufficient for the
minimum wage for all hours in a workweek (with the exception of certain
professionals listed in Rule 2.5.2). Except as provided in Rule 2.2.11, the
weekly salary from July 1, 2020, through December 31, 2020, was $684 ($35,568
per year); $778.85 for 2021 ($40,500 per year); $865.38 for 2022 ($45,000 per
year); $961.54 for 2023 ($50,000 per year); is $1,057.69 for 2024 ($55,000 per
year); and after 2024 shall be indexed every January 1 by the same Consumer
Price Index ("CPI") as the Colorado minimum wage, as stated in the PAY CALC
Order; except that the 2020 salary did not apply to the following two
categories of employers, for whom the above salary schedule applied only as of
January 1, 2021 - (A) non-profit employers with annual total gross revenue of
under $50 million, and (B) for-profit employers with annual total gross revenue
of under $1 million. Annual equivalents are based on 2080 hours over 52 weeks
of 40 hours, as under the federal Fair Labor Standards Act, and are rounded to
the nearest dollar.
For any employer that was not subject to the $684 per week
salary under this Rule 2.5.1 for all or part of 2020, the required salary was
the equivalent of the Colorado $12.00 minimum wage, less any applicable lawful
credits, for all hours worked in a workweek; this salary requirement of minimum
wage for all hours work applied under Minimum Wage Order #35 (2019) and prior
Minimum Wage Orders.
2.5.2
Exemption for Certain Professionals Exempt from the Salary Requirement under
Federal Wage Law. The Rule 2.5.1 salaries do not apply to the following
professionals who are exempt from the requirement of a salary under federal
wage law.
(A) Doctors, lawyers, and teachers
who qualify as exempt Rule 2.2.3 professional employees need not receive any
particular salary or hourly pay to be exempt.
(B) Employees in highly technical
computer-related occupations, as defined by Rule 2.2.10, must receive at least
the lesser of (1) the applicable salary in Rule 2.5.1, or (2) hourly pay that
was at least $28.38 in 2021, adjusted annually by CPI thereafter, as specified
for the applicable year in the PAY CALC Order.