Colorado Issues Emergency Temporary Changes to COMPS Order

As previously discussed, Colorado officially adopted the Colorado Overtime and Minimum Pay Standards Order # 36 (“COMPS Order”) on January 22, 2020, which went into effect on March 16, 2020.  However, the Division of Labor Standards and Statistics in the Colorado Department of Labor and Employment (“the Division”) has recently implemented temporary emergency modifications to the COMPS Order.  The temporary changes will remain in effect through July 14, 2020 (the “temporary period”), although the State intends to go through a formal notice and comment period to make these temporary changes permanent.

Joint Employment

Under the revised temporary COMPS Order, the Division has clarified the “joint employment” standard under the Colorado wage and hour law.  Joint employment, under Colorado wage and hour law, will continue to be analyzed under the versions of the federal Fair Labor Standards Act (“FLSA”) and applicable FLSA regulations that were in effect as of the enactment of H.B. 19-1267 by Colorado on May 16, 2019.  This modification reflects a rejection of the revised federal joint employment regulation issued in January 2020

Earnings Statements

The COMPS Order required employers to provide employees with earnings statements each pay period including: (a) an employee’s name, address, occupation, and date of hire; (b) date of birth (if the employee is under 18); (c) daily record of all hours worked; (d) record of credits claimed and of tips; and (e) regular rates of pay, gross wages earned, withholdings made, and net amounts paid each pay period.  However, during the temporary period, employers need to provide only the information set forth in (d) and (e), along with the total hours worked in the pay period, and the employee’s and employer’s names.

While this additional information does not need to be on an earnings statement during the temporary period, employers must still retain records reflecting the information contained in an employee’s itemized earnings statement and provide employees access to information regarding the name, address, occupation, and date of hire of the employee, along with the daily record of all hours worked.  Employers can provide access to these records via any of the following methods:

• provide the information with the regular earnings statements;
• provide each employee with access to a functioning electronic portal that shows the information (but this method is permissible only if the employer knows an email address of the employee); or
• provide each employee with the information for the entire calendar year by January 31st of the following year and, in addition, provide the information to an employee upon a request that an employee may make once per year.

Medicaid-Funded Workers

The revised COMPS Order also modifies provisions relating to Medicaid-funded workers.  In-residence workers’ daily overtime does not apply in the COMPS Order to companions designated as direct support professionals or direct care workers who: (1) are scheduled for, and work, shifts of at least 24 hours providing residential or respite services; (2) are employed by service providers and agencies that receive at least 75% of their total revenue from Medicaid or other governmental sources; and (3) provide services within Medicaid home and community-based service waivers.  Further, rest periods need not be 10 minutes every four hours for any employees who are providing Medicaid-funded services for a service provider or agency receiving at least 75% of its annual total gross revenue from Medicaid (or other governmental funds for providing such service within Medicaid home and community-based services, waivers (COMPS Order, Rule 5.2.1 (B)) and the services provided require continuous supervision of the service recipient, or providing rest period would interfere with ensuring the service recipient’s health, safety, and welfare.

Additionally, when direct support professionals or direct care workers servicing individuals with disabilities spend time in community outings with individuals with disabilities, as part of day programs, supported living services, or one-to-one respite or personal care, the time in such outings does not require employers to provide rest breaks or pay for rest breaks.  Employees within this category must receive rest periods that average, over the workday, at least 10 minutes per four hours worked and at least five minutes of rest in every four hours worked.

Required Posting

The Division has also released the COMPS Order poster, which employers must display where workers may easily read it during the workday.  If workplace conditions make physical posting impracticable, employers must provide a copy of the poster to each worker within the first month of hire and make the poster available to employees upon request.  If an employer provides its employees with a handbook, manual, or written or posted policies, the employer must include a copy of the COMPS Order, or the COMPS Order poster, with these materials, and obtain a signature of acknowledgement from the employee.

During the temporary period, employers in Colorado should review the modified earnings statements requirements.  Employers should begin to implement the other provisions of the COMPS Order, including notice, posting, and daily overtime and breaks.