On March 16, 2020, the Colorado Overtime & Minimum Pay Standards (COMPS) Order 36 went into effect, bringing sweeping changes to Colorado’s wage and hour laws.  COMPS Order 36 represents a dramatic shift from previous Colorado wage orders, significantly increasing the coverage of the rules, placing greater limitations on exemptions from the overtime requirements, expanding the definition of time worked, and imposing other requirements and potential liability on employers. For a comprehensive look at COMPS Order 36, please see our previous article here. On the March 16, 2020 effective date, the Colorado Department of Labor and Employment Division of Labor Standards and Statistics (“Division”) adopted three temporary changes to the Order, as well as a one-month compliance grace period.

Three Modifications to the Order

First, the Division added, in new Rule 2.2.7G, an exemption from the 12-hour daily overtime requirement for direct care/direct support “companions” who are Medicaid-funded and who work shifts of 24 hours or longer, in conformance with a federal appellate ruling issued last month. Additionally, the Division added, in Rule 5.2.1B, a related technical clarification to the definition and scope of Medicaid-funded providers, to whom additional rest period flexibility applies.

Second, and of particular note to all employers, the Division lessened employer obligations as to what information must be included in earnings statements issued every pay period. Under modified Rules 7.2 and 7.3, earning statements must include the (1) employee’s and employer’s names; (2) total hours worked in the pay period; (3) employee’s regular rates of pay, gross wages earned, withholdings made, and net amounts paid; and (4) any credits or tips claimed during the pay period.

Lastly, in modified Rule 1.6, the Division clarified that, for now, the “joint employment” standard remains the same as it has existed under Colorado wage and hour law, notwithstanding the recent adoption by the U.S. Department of Labor of a narrower joint-employment standard under federal wage law. In other words, COMPS Order 36 now provides for a broader standard for joint employment than the standard set forth in the new federal regulation. The Division currently is considering potential permanent changes to the state’s joint employment rules.

One-Month Compliance Grace Period

In light of the unprecedented impact of the COVID-19 crisis, the Division has delayed enforcement of the following requirements until April 16, 2020:

1. Employers have one month to comply with all documentation and notices required by COMPS Order 36, such as new posters, handbook inserts, acknowledgement forms, etc.
2. While the Division must investigate any claims filed with it, the Division’s “Direct Investigations” team launches its own investigations, based on tips, leads, and known problem sectors. Direct Investigations will not launch new investigations based on violations of new COMPS Order 36 rules for the first month.
3. To the extent a violation committed within the first month of COMPS Order 36 is solely the result of a new obligation established under the Order, the Division will deem the violation “non-willful” if the employer remedies it within the first month of the Order’s effective date.

Lastly, the Division has postponed mailing any new claim notices to employers until April 1, 2020, for all wage claims, not just those related to COMPS Order 36, so as to enable employers to catch up with mail receipt and avoid missing the 14-day statutory deadline required to avoid untimely payment penalties.