Littler Lightbulb: What’s New in Colorado?

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Colorado has been making headlines with several noteworthy new laws and regulations. This Lightbulb will highlight key recently enacted and pending employment legislation in the Centennial State. The Littler Denver office will be carefully monitoring these issues and other state and local developments as they unfold.

  • New Wage Order Expands Duties to All Employers. Effective March 16, 2020, Colorado Overtime and Minimum Pay Standards Order #36 (COMPS Order 36) extends coverage of state wage regulations to all employers in the state. Previous wage orders applied only to four industries (retail and service, food and beverage, commercial support, and health and medical employers). Under COMPS Order 36, all employers will be subject to regulations on minimum wage, overtime compensation, break times, uniforms, tip and other credits, and posters and recordkeeping. Exemptions from minimum wage and overtime obligations will apply to administrative employees, executives and supervisors, professional employees, outside salespersons, interstate transportation workers, taxi drivers, bona fide volunteers, and employees performing highly technical computer-related work, among others. Additional overtime exemptions will apply, including for certain salespeople, such as commission sales staff, as well as for ski industry employees. COMPS Order 36 provides that, for employers covered by federal, state, or local law, the most generous protections will apply. Colorado employers should review the order carefully for further details.
  • Overtime Exemption Salary Threshold. COMPS Order 36 also adjusts the annual salary requirement for employees to qualify for certain exemptions, including the supervisory and professional exemptions. From July 1, 2020 to December 31, 2020, the salary threshold will match the current level for “white collar” exemptions under the federal Fair Labor Standards Act ($35,568). The Colorado threshold will increase to $40,500 per year on January 1, 2021 and to $45,000 per year on January 1, 2022. Additional increases are scheduled for 2023 and 2024, with later adjustments to be based on the consumer price index.
  • Rest Breaks. Colorado law requires an employer to provide nonexempt employees with paid, ten-minute rest periods for every four hours of work. COMPS Order 36 clarifies some points regarding those rest periods. To the extent practical, the rest periods must fall in the middle of each four-hour period. It is not necessary that the employee be permitted to leave the premises for a rest period. Under COMPS Order 36, employees will be owed ten minutes’ pay if they are not allowed to take the required ten-minute rest period. Employers and employees can agree in writing to have two five-minute rest periods, as long as five minutes is sufficient time to travel to and from a bathroom or other break location.
  • CROWN Comes to Colorado? State lawmakers are weighing a “CROWN Act” (HB 1048), which would prohibit discrimination in employment, housing, education, and public accommodations based on hair texture or type, and would protect certain hairstyles. “CROWN” stands for the “Creating a Respectful and Open World for Natural Hair Act of 2020.” The measure would amend the definition of “race” under the state’s anti-discrimination law to include traits such as hair texture and type, and “protective hairstyle[s] that [are] commonly or historically associated with race.” Protective hairstyles would include “braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.” HB 1048 passed the Colorado house and is currently under review in the senate. If HB 1048 is enacted, Colorado would become the fourth state to adopt a CROWN law, following California, New York and New Jersey. Employers should keep an eye on this bill and consider appropriate changes to grooming or related policies if needed.
  • Denver Anti-discrimination Ordinance. As of January 30, 2020, Denver amended its Anti-Discrimination Ordinance to also prohibit discrimination on the basis of gender identity, gender expression, ethnicity, citizenship, and immigration status. (The Ordinance permits differential treatment where federal, state, or city laws impose citizenship or lawful immigration status as a requirement for employment or for eligibility for a benefit or service.) In addition, absent undue hardship, the Ordinance requires an employer to provide reasonable accommodations to an existing or prospective employee for pregnancy, childbirth or related medical conditions. Reasonable accommodations include, but are not limited to, “additional or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating . . . job restructuring, light duty,” private space for lactation, and modified work schedules. On a related note, the Ordinance’s public accommodations section now protects breastfeeding “in any place that a person has a right to be.”

Colorado employers should take this opportunity to review any policies and procedures affected by COMPS Order 36, or the amended Denver Ordinance. Plus, with the state legislative session in full swing, employers should stay tuned for further developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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