Last Minute Changes to the Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) #36

As we reported here, the Colorado Overtime and Minimum Pay Standards (COMPS) Order # 36 went into effect on Monday, March 16, 2020. Late that same day, the Colorado Department of Labor and Employment (CDLE) announced minor changes to the original final order.

First, the CDLE added an additional exemption to the 12-hour daily overtime rule for direct care/direct support “companions” who are Medicaid-funded and who work shifts of 24 hours or longer. This exemption only applies to workers 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. These employees do not have to be paid overtime if they work more than 12 hours in a single workday, nor do they have to be paid overtime for working more than 12 consecutive hours in a single shift, regardless of the start and end time of the shift.

Second, the CDLE reduced the amount of information employers must include on earnings statements issued every pay period. The new rule states that an itemized earnings statement with regular rates of pay, gross wages earned, withholdings made, a record of credits claimed and of tips, net amounts paid each pay period, and the total hours worked in the pay period, with the employee’s and the employer’s names, shall be provided to each employee each pay period.

Third, the CDLE added a clarification that the “joint employment” standard remains as it has been under Colorado wage and hour law since May of 2019 and that the agency will not follow the new, narrower standard recently announced by the federal Department of Labor.

In addition to those changes, the announced additional process changes and grace periods for compliance.

COMPS-required paperwork (posters, handbook inserts, acknowledgments, etc.) – Employers now have until April 16, 2020, to become compliant regarding new paperwork from employers (new posters, handbook inserts, acknowledgment forms, etc.).

No Division-initiated investigations of new COMPS rules until April 16, 2020. Until April 16, the CDLE will not use its direct investigations power to initiate investigations on its own accord into employers into violations of new COMPS. However, the Division will continue to investigate specific claims brought by aggrieved workers.

Deeming violations of new COMPS provisions rules non-willful if remedied by April 16, 2020. If a violation committed within the first month of COMPS is solely of a new obligation under COMPS, the Division will deem the violation not “willful” if the employer remedies by April 16.

Starting March 17, no new “notices of claim” will be sent to employers until April 1. Because some employers may be currently struggling to keep up with mail receipt, the Division will postpone mailing any new “notice of claim” – the mailing that tells an employer that a claim has been filed against it – because, by statute, a notice of claim starts a 14-day clock for the employer to avoid penalties by paying any wages due. A longer extension would risk backlogging claims, but the Division aims for this period of just over two weeks to postpone employers’ receipt of mail that starts a statutory deadline.

For more information, please see the COMPS informational page. Please contact Employers Council with questions.