[author: Devra Hake, Law Clerk]

The Colorado Department of Labor and Employment has been busy. In the last week, the Department has published proposed rules regarding equal pay, minimum wage, overtime standards, whistleblowing, anti-retaliation, mandatory posters about employee protections, paid sick leave, and more. As described in more detail below, the proposed rules offer clarity on new employee rights under recent statutes and regulations. These rules are likely to be adopted and become effective on January 1, 2021.

Equal Pay Transparency Rules

Last year, Colorado’s governor signed the Equal Pay for Equal Work Act, which becomes enforceable on January 1, 2021. The Act, which applies to all private and public employers, does two primary things. First, it prohibits wage discrimination because of sex. Second, it prohibits seeking or relying upon an applicant’s wage history in determining a wage rate. The Act mandates that employers make reasonable efforts to announce or post “promotional opportunities” to all employees on the same day. It also requires that job postings disclose the hourly or salary compensation for the position (or a range), and a general description of all benefits or other compensation to be offered.

This week, the Colorado Department of Labor and Employment proposed the “Equal Pay Transparency Rules.” The proposed rules do not define “promotional opportunity,” but they do clarify employer requirements to make reasonable efforts to announce or post promotional opportunities to employees. The proposed rules mandate that:

• The promotional opportunity posting be in writing and include the job title, compensation, benefits, and means by which employees may apply for the position;
• When posting or announcing the promotional opportunity, the employer must use the employer’s regular and customary method of communication with its employees. For any employees not reachable by that method, the employer must use an effective alternative method to notify those employees;
• If an employer posts a promotional opportunity rather than communicates the opportunity to each employee, the posting must be displayed in each establishment where employees work, and in a conspicuous location frequented by employees where it may be easily read during the workday. Conspicuous locations include break rooms, employee bulletin boards, and/or adjacent to time clocks, department entrances, and facility entrances; and
• Although promotional opportunities must be published for everyone, the employer “may state that applications are open to only those with certain qualifications.”

The proposed rules also explain that employers may ultimately pay higher or lower than the posted salary range if the range reflects “the employer’s good-faith and reasonable estimate of the range of possible compensation at the time of the posting.”

Finally, the Equal Pay Transparency Rules clarify that the requirements for posting job opportunities differ depending on whether the job is to be performed in Colorado, outside of Colorado, or remotely from any location. Specifically:

• If an employer has at least one Colorado employee, has a job to be performed in Colorado, and accepts applicants from outside Colorado, it must notify every employee in any state for whom the job would be a promotion.
• If an employer has at least one Colorado employee, has a job to be performed outside Colorado, and accepts applicants from locales at least as distant as Colorado, it must notify all Colorado employees for whom the job would be a promotion.
• If an employer has at least one Colorado employee and the job could be performed from anywhere, the employer must notify every Colorado employee for whom the job would be a promotion.

Colorado Overtime and Minimum Pay Standards (COMPS) Order #37

Earlier this year, the Colorado Department of Labor and Employment promulgated Colorado Overtime and Minimum Pay Standards (COMPS) Order #36, which expanded coverage of minimum wage and overtime requirements to almost every private employer. In particular, COMPS Order #36 mandated that employers provide meal and rest breaks, set minimum wage at $12 per hour; and required that employees receive overtime at 1 1/2 times their regular rate of pay for work beyond 40 hours in a week, 12 hours in a day, or 12 consecutive hours of work. COMPS Order #36 also defined “time work” to include activities excluded by the Fair Labor Standards Act, such as time spent donning and doffing and passing through security checks.

This week, the Department proposed COMPS Order #37, which contains slight modifications of the previous Order. The changes are designed to provide consistency between minimum wage and overtime standards and paid sick leave standards under the new Healthy Families and Workplaces Act (HFWA). For example, “wages” and “compensation” now include paid sick leave under the HFWA. Moreover, the definitions of “employee” and “employer” have been adjusted so that they align with the definitions provided in the HFWA. This means that persons subject to the federal Railroad Unemployment Insurance Act are not considered “employees” and are therefore exempt from the requirements of COMPS Order #37. And the definition of “employer” has been expanded to include the state, its agencies, its entities, counties, cities, municipalities, school districts, and any political subdivision of the state—but not the federal government.

The proposed rule increases the statewide minimum wage rate from $12 per hour to $12.32 per hour, starting on January 1, 2021.

Last, the definition of “professional employees,” who are exempt from COMPS Order #37, has changed. In COMPS Order #36, to be considered a professional employee, one simply needed to have a knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. Now, to be an exempt professional employee, one must have a primary duty of 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 or artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work, or work that primarily depends on intelligence, diligence and accuracy.”

These adjustments are employee-friendly and expand the coverage of COMPS Order #37.

Colorado Whistleblower, Anti-Retaliation, Non-Interference, and Notice-Giving Rules (“WARNING Rules”)

In the last week, the Colorado Department of Labor and Employment has also proposed rules protecting employees against retaliation for, or interference with, the exercise of protected rights under the Healthy Families and Workplaces Act (HFWA), the Public Health Emergency Whistleblower Act (PHEW), amendments to the Colorado Wage Act, and rules promulgated under these statutes.

The rules also clarify the following requirements governing how workers must receive various forms of notification of their rights under the HFWA and PHEW:

• Employers must display or otherwise provide to workers a poster informing them of their rights under the HFWA and the PHEW.
  • Employers may use the latest version of the “Colorado Workplace Public Health Rights Poster” (provided by the Department at www.coloradolaborlaw.gov) to satisfy the poster requirements of both the HFWA and the PHEW, or by using another poster that contains all substantive information in the “Colorado Workplace Public Health Rights Poster” and otherwise satisfies all statutory and rule requirements.
• The poster must be displayed in each establishment where workers work, and in a conspicuous location frequented by workers where it may be easily read during the workday. Conspicuous locations include break rooms, employee bulletin boards, and/or adjacent to time clocks, department entrances, and facility entrances.
• If the work site or other conditions make a physical posting impractical (including remote work, private residences employing only one worker, and certain entirely outdoor work sites lacking an indoor area), the employer shall provide a copy of the poster to each employee or worker within their first month of work, including through (if information is customarily disseminated to the workers through these means) either electronic communication or a conspicuous posting in a web-based platform.
• Employees must receive written notice of their rights under the HFWA.

Finally, the rules provide a complaint mechanism for workers who wish to report to the Department instances of unlawful retaliation, interference, or failure to provide notice. Workers may also complain if their employer has not allowed them to wear personal protective equipment that they are entitled to use.

Wage Protection Rules (Modifying the Healthy Families and Workplaces Act)

This summer, Colorado enacted the Healthy Families and Workplaces Act (HFWA), which provides employees with rights to paid sick leave and mandates that all Colorado employers abide by the federal Families First Coronavirus Response Act. In early October, the Colorado Department of Labor and Employment proposed "Wage Protection Rules," which include a few key changes to the HFWA.

Most importantly, the proposed rules clarify the application of the HFWA to employer policies that provide fully paid leave for both HFWA and non-HFWA purposes (like sick time and vacation). We now know that the HFWA will not require an employer to provide additional leave if its policy makes clear to employees, in a writing distributed in advance of an actual or anticipated leave request, that:

• Its leave policy provides paid time off:
  • in at least a number of hours and pay sufficient to satisfy the HFWA and applicable rules;
  • for all the same purposes covered by the HFWA and applicable rules, and not a narrower set of purposes; and
  • under all the same conditions specified in the HFWA and applicable rules—not stricter or more onerous conditions (including matters such as accrual, use, payment, annual carryover of unused accrued leave, notice and documentation requirements, and anti-retaliation and anti-interference rights); and
• Additional HFWA leave will not be provided when an employee uses all paid time off for a non-HFWA-qualifying reason (like vacation).

The proposed rule also explains how supplemental paid sick leave is accrued and used during a public health emergency. For example, if an employee needs to self-isolate during the COVID-19 pandemic, the employee may use:

• Whatever the employee has accrued and continues to accrue at the regular HFWA rate (one hour per 30 hours worked, up to a maximum of 48 hours); and
• The number of hours needed for:
  • an employee who normally works forty or more hours in a week to have access to 80 hours of total paid leave; or
  • an employee who normally work under forty hours in a week to have access to paid leave hours that are at least the greater of the number of hours the employee:
    • is scheduled to work in the upcoming 14-day period; or
    • actually works on average in a 14-day period.

Finally, the proposed rules elaborate on employer options when an employee wishes to use paid sick leave. Though an employee must be able to immediately use paid sick leave once it is accrued, the proposed rules mandate that an employer may, in the ordinary course of business and in good faith, verify employee hours within a month after work is performed and adjust accrued leave to correct any inaccuracy, provided that the employee is notified in writing. Furthermore, an employer may require reasonable documentation that leave is for an HFWA-qualifying purpose only if the leave requested or taken is for four or more consecutive workdays, and the leave is not related to a "public health emergency."

Lessons for Employers

Over the last year, a lot has changed in the Colorado labor and employment landscape. While the United States Department of Labor has implemented business-friendly rules, Colorado has veered in the opposite direction. These proposed rules are employee-friendly and will likely be adopted and become effective on January 1, 2021. Stay tuned for more updates, as things are quickly changing in Colorado.