Written by Dana Dobbins from Holland & Hart LLP on August 9, 2024
HiringAdvertising
What are the requirements relating to advertising open positions?
It is unlawful to persuade or engage workers to move from one place to another through false or deceptive means, including deceptive representations and false advertisements around wages, the type of employment, the job environment, union strike environment, or other key characteristics (C.R.S. §8-2-104). Employers must also comply with the anti-discrimination provisions of the Colorado Anti-Discrimination Act (C.R.S. §24-34-402) and under Part 2 of Colorado’s Equal Pay for Equal Work Act, job postings must include salary/compensation information in the posting, including a general description of benefits offered with the position (see INFO #9 and #9A). Internal job opportunities within Colorado, with some exceptions, must be published to existing employees before filling the position.
The Colorado Chance to Compete Act bars employers from advertising that persons with criminal histories may not apply for the position at issue (with certain exceptions) (see INFO #9C).
The Ensure Equal Pay for Equal Work Act, passed in June 2023 and effective as of January 1, 2024, amended the Equal Pay for Equal Work Act to clarify and enhance an employer’s obligations relating to open positions and job opportunities. Background checks
(a)Criminal records and arrests
The Colorado Chance to Compete Act prohibits employers from inquiring into an applicant’s criminal history in an initial job application and from advertising that persons with criminal histories may not apply for the position at issue (with certain exceptions) (see INFO #9C). Colorado employers may also not inquire about sealed records (C.R.S. §24-72-702). Otherwise, Colorado law does not currently restrict an employer’s use of criminal history records for both arrests and convictions and the law allows an employer to obtain the publicly available criminal background report of an applicant at any time.
(b)Medical history
The Code of Colorado Regulations (CCR) prohibits pre-offer medical examinations and pre-employment inquiries as to whether an applicant is an individual with a disability (although an employer may make pre-employment inquiries into an applicant’s ability to perform job-related functions) (3 CCR §708-1:60.3). However, employers may condition an offer of employment on the results of a medical examination conducted before employment begins, as long as all entering employees are subject to such an exam regardless of disability and the exam results are used only in accordance with Colorado law (Id.).
(c)Drug screening
Colorado does not have a state law regulating drug and alcohol testing by private employers. However, employers should note that Colorado has legalized the use of marijuana for both medical and recreational purposes. The Colorado Supreme Court ruled that terminating an employee who used medical marijuana outside the workplace after he or she tested positive during a random drug test did not violate Colorado’s lawful activities statute (Coats v. Dish Network, LLC., 350 P.3d 849 (Colo. 2015)).
The City of Boulder has an ordinance related to alcohol and drug testing (Boulder Rev. Code §12-3-1 to 5).
(d)Credit checks
Colorado’s Employment Opportunity Act, C.R.S. §8-2-126, restricts the use of consumer credit information by employers.
(e)Immigration status
Employers must comply with federal law 8 U.S.C. § 1324a(b). (See C.R.S. § 8-2-122).
(f)Social media
Colorado employers may not suggest, request, or require that an employee or applicant disclose any username, password, or other means for accessing the employee’s or applicant’s personal accounts or service through the employee’s or applicant’s personal electronic communications device. Employers also may not compel an employee or applicant to add anyone as a “friend” or to their list of contacts and may not require, request, suggest, or cause an employee or applicant to change their privacy settings associated with a social networking account. Finally, employers cannot discharge, discipline, or discriminate against any employee or applicant for refusing or failing to disclose such information. A few exemptions exist related to conducting workplace investigations regarding compliance with applicable laws or the unauthorized downloading of the employer’s proprietary information (C.R.S. §8-2-127).
(g)Other
Colorado law prohibits employers from terminating an employee for engaging in any lawful activity off the premises of the employer during non-working hours. There are exceptions when such a restriction relates to a bona fide occupational requirement or is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest (C.R.S. §24-34-402.5).
All private employers are prohibited from inquiring about criminal history on an employment application or stating that a person with a criminal history cannot apply, but employers may obtain the publicly available criminal background report of an applicant at any time if not to directly solicit business for financial gain (C.R.S. § 8-2-130).
The Job Application Fairness Act, which takes effect July 1, 2024, bars employers from asking about a job applicant’s age in an initial application, except where age requirements are based on legal and safety needs (C.R.S. § 8-2-131). In this vein, the statute also bars employers from inquiring into date of birth, dates of attendance or graduation at an educational institution, or other inquiries similarly disclosing age (see INFO #9B). Employers may request additional application materials, such as CVs and school transcripts, but they must notify applicants that they can redact age identifying information, such as graduation dates, etc. And, even where there is legal or safety need to verify compliance with age requirements, and employer cannot ask the applicant to disclose his or her specific age.
Wage and hourPay
What are the main sources of wage and hour laws in your state?
Article 4 of Title 8 in Colorado’s Revised Statutes contains most of the laws governing wage and hour issues. The Code of Colorado Regulations (CCR), 7 CCR 1101-1103, includes the regulations concerning wages.
What is the minimum hourly wage?
The Colorado Constitution requires that the state minimum wage be adjusted annually for inflation. The current minimum wage as of June 2024 is $14.42 per hour.
What are the rules applicable to final pay and deductions from wages?
When an employee is terminated by the employer, all earned wages are due immediately (including accrued but unused PTO), if the accounting unit is operational. If the unit is not scheduled to be operational, pay is due no later than six hours after the start of the unit’s next regular working day. If the unit is offsite, wages are due no later than 24 hours after the start of the unit’s next regular working day (C.R.S. §8-4-109).
When an employee resigns or quits their employment, all earned wages (including accrued but unused PTO) are due by or on the next regular payday (C.R.S. §8-4-109).
Generally, deductions from wages are permitted for:
- those mandated by local, state, or federal law (e.g., FICA requirements, and garnishments);
- contributions attributable to automatic enrollment in an employee retirement plan;
- loans, advances, goods or services, and equipment or property provided by an employer to the employee pursuant to a written agreement;
- the cost of theft, if a report has been properly filed with law enforcement;
- revocable deductions authorized by the employee (e.g., for medical insurance, stock purchases, pension plans, or charities); and
- the amount of money or value of property that the employee failed to properly pay or return when the terminated employee was entrusted with such money or property so long as proper notice is provided to the employee as set out in the statute (C.R.S. §8-4-105).
Hours and overtime
What are the requirements for meal and rest breaks?
For individuals covered by the Colorado Overtime and Minimum Pay Standards Order (COMPS Order) # 39, employers must provide an uninterrupted meal period of at least 30 minutes to employees scheduled to work a shift of five or more hours. If the nature of the job does not allow for an uninterrupted meal period, the employee must be permitted to consume an “on-duty” meal while performing duties and such period must be compensated.
Paid rest periods of 10 minutes are required for every four hours worked, or major fractions of four hours. To the extent practical, rest periods should be in the middle of each four-hour work period. If an employer fails to authorize and permit a required rest break, then the employer must pay the employee an additional 10 minutes of wages at the employee’s agreed-upon or required rate of pay. Special rules and time periods apply to agricultural workers.
What are the maximum hour rules?
Colorado employees engaged in work in underground mines, underground workings, and smelters may not work more than eight hours within 24 hours, except under certain conditions (C.R.S. §8-13-102).
Firefighters are restricted from being on duty during any calendar month for periods which amount to more than 12 hours for each day in a month, with exceptions for emergencies (C.R.S. §8-13-107).
Minors (under 18) may not work more than 40 hours in a week or more than eight hours in any 24-hour period. Minors under 16 may not work more than six hours after school hours unless the next day is not a school day. Except for babysitters, no minor under the age of 16 shall be permitted to work between the hours of 9:30 p.m. and 5:00 a.m., except work as a model, actor, or performer, unless the next day is not a school day (C.R.S. §8-12-105).
For overtime purposes, Colorado requires that overtime pay be paid to non-exempt employees at 1.5 times their regular hourly rate for hours worked in excess of 40 hours per working week, and on a daily basis for hours worked over 12 hours per day, or 12 consecutive hours without regard to the start and end time of the working day, whichever calculation results in the greater payment of wages (see COMPS Order #38).
How should overtime be calculated?
For individuals covered by the COMPS Order, overtime pay must be paid to non-exempt employees at 1.5 times their regular hourly rate for hours worked in excess of 40 hours per working week, and on a daily basis for hours worked over 12 hours per day, or 12 consecutive hours without regard to the starting and ending time of the working day, whichever calculation results in the greater payment of wages. A working day is any consecutive 24-hour period starting with the same hour each day and the same hour as the beginning of the working week. A working week is any consecutive seven-day period starting with the same calendar day and hour each week (see COMPS Order #38).
What exemptions are there from overtime?
Colorado exemptions from overtime include commission sales, the ski industry, medical transportation, salespersons, parts persons, and mechanics employed by automobile, truck, or farm implement dealers, range workers, and salespersons employed by trailer, aircraft and retail boat dealers. Other exemptions include supervisory and sales roles, business owners and non-profits, some residence workers, taxi drivers, volunteers, and other categories covered in COMPS Order #38.Record keeping
What payroll and payment records must be maintained?
For employees covered by the COMPS Order, employers must keep for at least three years after the wages or compensation was due, a true and accurate record of the following:
- name, address, occupation, and date of hire;
- date of birth, if the employee is under 18;
- daily record of all hours worked;
- record of allowable credits and declared tips; and
- regular rates of pay, gross wages earned, withholdings made, and net amounts paid each pay period (COMPS Order # 38 (2022)).
Work records required under Colorado’s unemployment compensation law must be retained for at least five years.
Federal payroll record-keeping requirements exist under the Fair Labor Standards Act.
