Publication

Overview

Effective March 16, 2020, the Colorado Department of Labor & Employment issued Colorado Overtime and Minimum Pay Standards (“COMPS”) Order #36, which replaces Colorado Minimum Wage Order (“MWO”) #35.  This order also instituted a one-month grace period through April 16, 2020 for compliance and enforcement.

While not a comprehensive summary, this Bulletin is intended to provide an overview and highlights of COMPS Order #36, as well links to helpful resources for employers.  The two most significant aspects of COMPS Order #36 that are new are:

1.   expanded coverage; and
2.   a new minimum exempt salary of $55,000 in 2024 for employee exemptions phased in over 4.5 years, with an initial salary of $35,568 in July 2020 (giving employers years to adjust).

Highlights Regarding COMPS Order #36:

Expansion of Coverage.  Whereas MWO 35 only covered 4 industries, COMPS Order #36 covers all private sector work, unless exempted under Rules 2.2 through 2.4, as follows:

1. Rule 2.2:  The following are exempt from COMPS Order #36 except from Rules 1 (Authority & Definitions), 2 (Coverage & Exemptions) and 8 (Administration & Interpretation): administrative employees, executives or supervisors, professional employees, outside salespersons, owners or proprietors, interstate transportation works and taxi cab drivers, in-residence workers, bona fide volunteers and work-study students, elected officials and their staff, and employees in highly technical computer-related occupations.
2. Rule 2.3:  The following are exempt from Rule 3 (Minimum Wage), Rule 4 (Overtime) and Rule 5.1 (Meal Periods) if they are not covered by or are exempt from the federal Fair Labor Standards Act (“FLSA”): workers in jobs in agriculture.  However, this exemption does not apply if an employer draws at least 50% of its annual business from sales to the consuming public (rather than for resale). 
3. Rule 2.4:  The following are exempt from Rule 4 (Overtime) unless otherwise specified:  certain salespersons and mechanics, commission sales employees, ski industry employees, medical transportation employees, hospital or nursing home employees who are paid under an “Eight and Eighty” Rule pursuant to the federal FLSA.

Colorado Minimum Wage.  The 2020 Colorado minimum wage is $12.00 per hour. 

Colorado Tipped Minimum Wage.  The 2020 Colorado tipped minimum wage is $8.89 per hour.  “Tip credits of no greater than $3.02 per hour may offset wages of employees in occupations in which they customarily and regularly receive over $30 per month in tips.  An employer claiming a tip credit must pay at least $8.98 per hour (the 2020 Colorado tipped minimum wage rate), and if that wage plus tips does not equal the minimum hourly wage, the employer must make up the difference in wages.” 

See Interpretive Notice & Formal Opinion (“INFO”) #1:  COMPS Order #36, 7 CCR 1103-1 (2020). 

Tips or Gratuities:  “Rule 6.1 has been modified to clarify that it is not unlawful for employers to disallow presents, tips, or gratuities – for example, in order to comply with regulations as to nursing homes, as comments from the industry noted.  The specific change is that whereas proposed COMPS Order stated that employers may not ‘deny’ tips or gratuities, the adopted  rule mirrors the language of C.R.S. § 8-4-103(6) – simply disallowing employers from attempting to claim, control, or assert ownership in employee tips.”  Id. at p. 49 (emphasis added). 

Individual Liability.  COMPS Order #36, at Rules 1.5-1.6, follows the amended version of C.R.S. § 8-4-101(6), the Colorado statute which defines “employer.”  That statute, as amended, adopts the FLSA definition of “employer,” which provides for individual liability.  Thus, an individual may be jointly and severally liable, along with the corporation or entity, for a wage violation under Colorado law.  See Statement of Basis, Purpose, Specific Statutory Authority, and Findings:  COMPS Order #36, 7 CCR 1103-1, (at pp. 7-8).

COMPS Order #36 Poster.  Employers must display the following poster where employees can easily read it during the workday.  Employers must also provide it to employees upon request.  If an employee requires translation of the poster into a different language, the employer must provide it and/or ask the Division for a poster in that language.  See COMPS Order #36 Poster.  Employers must meet posting requirements by the end of the one-month grace period, or by April 16, 2020.

For more information or assistance, please contact the authors or visit the Gordon Rees Scully Mansukhani, LLP website at www.grsm.com.