By Martine Wells
Brownstein Hyatt Farber Schreck, LLP
As summer 2021 comes to a close, there have been a number of compliance-related updates — even beyond COVID-19-related changes — to Colorado’s employment laws that employers across industries should be aware of.
On July 21, 2021, the Colorado Department of Labor and Employment Division of Labor Standards and Statistics promulgated updated guidance clarifying certain Equal Pay for Equal Work Act issues that employers have had challenges operationalizing. There are several notable updates:
Advertising “Remote-Only” Positions
The Division of Labor Standards and Statistics made clear that an employer may not avoid the compensation and benefit posting requirements for “remote-only” positions by including a disclaimer that “Colorado residents need not apply.” Rather, the Division’s view is that an employer, even non-Colorado employers, must include wage or salary, variable compensation and benefit information in “remote-only” job postings that may be performed anywhere. This applies to both externally posted “remote-only” positions as well as “remote-only” opportunities that may constitute a promotion for a Colorado employee and posted internally.
Here are the specifics from the EPEW to advertise remote openings:
The compensation “range’s bottom and top cannot be left unclear with open-ended phrases such as ‘$30,000 and up’ (with no top of the range), or ‘up to $60,000’ (with no bottom of the range).”
Benefits descriptions “cannot use an open-ended phrase, such as ‘etc.’ or ‘more,’ rather than provide the required ‘general description of all of the benefits.’” Note that the Division defines benefits that must be listed as those that are “tax reportable” but not minor perks.
The complaint form is now publicly available, so employers can see what information is collected from a complaining employee.
The Public Health Emergency portion of the Healthy Families and Workplaces Act is still in effect, despite Gov. Polis having removed the state of disaster emergency in Colorado on July 8, 2021. This is because the federal public health emergency is still in effect and likely will be through the end of 2021, according to promises made by the Biden administration in a letter to state governors. Therefore, employees remain entitled to paid leave for COVID-19-related reasons as articulated in the Healthy Families and Workplace Public Health Emergency sections.
Furthermore, pursuant to revised rules that the Division of Labor Standards and Statistics promulgated in April 2021, HFWA leave covers medical care, including care related to obtaining a vaccination. The Division also clarified how to calculate leave for part-time employees and the documentation that can be requested for Public Health Emergency leave. These updates are available in the updated Rules and the updated INFO #6B.
The Colorado Supreme Court resolved a longstanding interpretive question regarding whether or not earned but unused vacation time must be paid out upon termination. In June, in its Nieto v. Clark’s Market opinion, it interpreted the vacation pay provision under Colorado law, finding that mandated forfeiture of such time is unlawful. Rather, if an employer chooses to provide paid vacation, any earned but unused vacation time must be paid out upon separation from employment, notwithstanding any written agreement or employment policy to the contrary. As a result of this ruling and to comply with the Healthy Families and Workplace Act, many employers are restructuring their paid leave provisions.
Most employers are aware that Colorado’s salary requirement for an employee to be properly classified as exempt from overtime and other wage protections is higher than what is required by the U.S. Department of Labor and other states. However, lesser-known is that the state’s exemption duties tests are also different. On July 1, 2021, the Division of Labor Standards and Statistics published guidance explaining its view of the EAP exemptions. Most notably, to the administrative exemption, the Division explained that effective Jan. 1, 2021, one of the requirements for the exemption is that the employee directly serves “an” executive. Previously, the employee needed to serve “the” executive. This and other explanations are contained in INFO #1A.
Denver Wage Theft Ordinance
In July, the Council for the City and County of Denver enacted a criminal Wage Theft Ordinance for wage disputes of up to $2,000, putting at issue potential criminal penalties for wage theft.
INFO # 11A confirms potential individual liability for wage claims. Workplace Accommodations for Nursing Mothers, INFO #10, mandates reasonable paid or unpaid breaks for nursing mothers up to two years from giving birth. And INFO #12 expanded agriculture labor rights and responsibilities established in Colorado Senate Bill 21-87.
The Colorado Department of Labor and Employment released its 2021 Minimum Wage Report.
2022 Expected Changes
If we have learned anything over the last year, it is that our crystal ball cannot portend the future, particularly as to the workplace. That said, we expect to continue to see an ever-evolving compliance landscape. This includes updates regarding Equal Pay, HFWA, COMPS and other areas of priority, such as independent contractors and workplace health- and COVID-19-related initiatives, at the legislative, regulatory and agency guidance levels. Guaranteed changes include increased minimum wages in Denver and at the state level, which is currently $12.32 an hour, as well as an increase to the salary basis for exemptions to $45,000 for 2022. Finally, it is anticipated that the rulemaking process will commence for the Colorado Paid Family and Medical Leave Insurance Act, which becomes effective Jan. 1, 2024, providing up to 12 weeks of paid leave. In short, workplace compliance will continue to consume significant bandwidth of employers across industries.
Correction Note: a previous version of this article had an incorrect byline. Law Week regrets the error.
Martine Wells is a partner at Brownstein Hyatt Farber Schreck, LLP.