On Thursday, September 30, 2021, the CDLE Division of Labor Standards and Statistics (DLSS) filed three sets of proposed rules. This post summarizes those proposed rules and the upcoming rulemaking process for each, and provides links to the proposed rules and further information on them.
SUMMARY OF PROPOSED RULES, each of which is available on our Recently Proposed/Adopted Rules page:
(1) 2022 Publication And Yearly Calculation of Adjusted Labor Compensation Order (“2022 PAY CALC Order,” or “PAY CALC”), 7 CCR 1103-14 (effective January 1, 2022). This new set of rules serves to calculate and publish pay and income figures — e.g., Colorado minimum wages, and minimum earnings levels for various full or partial labor law exemptions — that adjust annually or on other periodic bases under the COMPS Order (item (2) below) or other laws. The pay and income figures in PAY CALC previously were (or, for figures new in 2022, would have been) in various provisions throughout the COMPS Order. PAY CALC facilitates access to those important figures by consolidating all into an annually published one-page rule.
(2) Colorado Overtime and Minimum Pay Standards Order (“COMPS Order,” or “COMPS”) #38, 7 CCR 1103-1 (effective January 1, 2022). These rules amend the prior version of COMPS (Order #37, covering 2021), Colorado’s broad set of wage and hour rules, as follows (in addition to certain non-substantive edits):
(A) removing annually or otherwise periodically adjusted pay and income figures (e.g., minimum wage and exemption income levels), and replacing them with references to the PAY CALC Order (item (1) above), which now consolidates all such figures;
(B) adding rules on minimum wages, overtime and maximum hours protections,* and meal and rest periods for agricultural employees, pursuant to the Colorado Senate Bill 21-87 requirements that agricultural employees be provided such rights, and that the Division promulgate rules accordingly;
(C) adding an exemption for “highly compensated employees” not covered by other existing exemptions, substantially similar to the exemption under the federal Fair Labor Standards Act; and
(D) detailing further how to calculate “regular rates” of pay for employees with more than one hourly rate.
(3) Wage Protection Rules, 7 CCR 1103-7 (effective January 1, 2022). These rules amend the Wage Protection Act Rules, 7 CCR 1103-7, which implement and enforce various Colorado wage and hour laws, as follows (in addition to certain non-substantive edits):
(A) defining “vacation pay,” following a court ruling that vacation pay is non-forfeitable;
(B) clarifying the pay rates and hours for HFWA leave for employees with certain irregular pay or hours;
(C) confirming the acceptability of electronic signatures at the Division;
(D) clarifying employers’ HFWA record-keeping requirements; and
(E) clarifying the HFWA exemption for CBAs providing equivalent or more generous leave.
*Further detail on proposed agricultural overtime rules, since stakeholder engagement on this issue has been especially strong since the Division began outreach and comment solicitation in early summer.
· Background. For almost all industries and workers, weekly overtime pay is required for hours past 40 per week, and daily overtime pay for hours past 12 per day, whether pay is hourly, piece rate, salaried, or otherwise. Variances exist for particular jobs (e.g., supervisors or professionals paid above a certain level) or industries (e.g., ski employee overtime is generally at 56 hours per week and 12 per day). Agriculture was exempt from overtime until SB21-87, the law enacted in June 2021 that required that the CDLE Division of Labor Standards and Statistics “shall promulgate rules providing meaningful overtime and maximum hours protections to agricultural employees” based on considerations SB21-87 mandates, including “the inequity” in such employees’ prior overtime exclusion, “the fundamental right of all employees” to overtime, and “unique difficulties agricultural employees have obtaining workplace conditions equal to” others.
· The proposed rules. As to daily overtime: agriculture would be exempt, as long as days over 12 hours include a third paid break that is 30 minutes rather than a typical 10-minute rest period. As to weekly overtime: the proposed rules include a phase-in over several years, starting with a one-year delay, and then with hours thresholds varying by employer size and seasonality as follows.
THE RULEMAKING PROCESS:
As always, publishing proposed rules serves to further, not end, our broad outreach and public input processes that began well earlier, and already have generated over 150 written comments, as well as attendance by hundreds at our outreach events. Proposed rules help focus input on specific suggestions to make our rules better, and as responsive to stakeholders as possible. For example, as to the proposed agricultural overtime rules, we welcome suggestions as to any of the overtime thresholds; as to treatment of certain types of workers, sectors, or non-seasonal employers such as in dairy and livestock; or to any other matters in the proposed rules. Following is the planned rulemaking schedule, as well as where to find further and updated information as the process continues.
For questions on the substance of these rules, contact DLSS Director Scott Moss or CDLE Director of Policy and Legislation Pat Teegarden. For questions on how to participate in our public hearing, or other meeting logistics, contact DLSS Director of Operations and Rulemaking Coordinator Michael Primo (the undersigned).
Director of Operations
Division of Labor Standards and Statistics