Big updates to know!
First, let me start by saying – do not give up on this post! There is a lot to unpack here, and we are working to make sure you KNOW what is coming on the horizon. That said, we also want to extend the offer to connect with you on this if you walk through your specific circumstances. If so, email us at firstname.lastname@example.org
In CO there are several rules set to take effect on January 1, 2021. These may have a significant impact on businesses operating in the State of Colorado. After a public hearing which took place on November 2, 2020, the Division at the Colorado Department of Labor and Employment released (on 11/11/2020) Adopted Rules to take effect on January 1st. Some of the changes in regulations are material for how employers will need to move forward. To read on all of the adopted rules - USE THIS LINK. The effort in this post here is to help provide context and clarity to employers in Colorado, so that you may work through the compliance in these Adopted Rules more easily. HRx has been monitoring many of these proposed rules closely. Below is more information regarding these new Adopted Rules on our radar.
Stands for: Colorado Whistleblower, Anti-Retaliation, Non-Interference, and Notice Giving Rules
Purpose: these rules implement and enforce recent and soon to become effective additions and changes to labor standards law. Additionally, the Division identified a need to work through the specifics of the rules listed below, as much of their work had been focused primarily on wage investigations. With the complexity of the new rules being placed under the authority of the Division, further work was required to detail procedures, rights and responsibilities under that authority.
What is included:
PHEW – Public Health Emergency Whistleblower Act (effective: 7/11/2020)
HFWA – Health Families and Workplaces Act (effective: 7/14/2020)
EPEWA – Equal Pay for Equal Work Act (effective: 1/1/2021)
Chance to Compete Act (aka: Ban the Box) (effective: 8/2/2019)
Colorado Wage Act and the COMPS Order #37 (effective: 1/1/2021)
The Rules it creates:
Rules 1 – 2: Statutory Framework and Definitions – shares information on how the Division will operate and clarifies certain definitions where there could be a need for clarification
Rule 3: Complaint, Investigation, and Appeal Procedures – further details on how the Division is working through the process, providing similar legislation/claim procedures used for these new Rules.
Rule 4: Notice and Posting requirements – where applicable, details how the Division will handle posting requirements for these new Rules.
Rule 5: Protected Activity – clarifies the process/rules and requirements for raising a reasonable concern of health and/or safety violations.
Direct Investigation Rules
Purpose: To allow the Division of Labor Standards and Statistics in the CDLE to investigate claims and provides the Division the authority to enforce Colorado labor standards law under these rules.
What is included:
Establishes definitions of different terms used in different Acts (i.e.: employee could have different meanings in different legislative requirements).
Investigation processes – including clarification on the timeline with which claims can be investigated. In this case, the investigation is limited to two years prior to the start. However, if there was a credible allegation of willful neglect on the employer’s side, then the investigation may include violations that occurred no more than three years prior to the start of the investigation.
Investigation documentation – shares timelines for a response from the employer as well as the items to be considered in an investigation.
Sharing Preliminary Findings.
Determination – sharing the determination and assessment of penalties, fines, wages, reinstatement of position, or Notice of Investigation Termination.
Outlines the Appeals process.
Equal Pay Transparency Rules
Related to: Part 2 (Transparency in Pay and Opportunities for Promotion and Advancement) EPEWA (Equal Pay for Equal Work Act).
Purpose: To establish rules, and the statutory authority established, and where possible to ensure the rules are clearly stated so that they can be understood by any party required to comply.
NOTE: It is important to note that this is just a part of the EPEWA rules, and further clarification from the Division may be forthcoming.
What is included:
Sharing of Definitions for clarity – employee and complainant for example both have definitions listed here.
Complaint, investigation, and appeals procedures – for example, what is considered an aggrieved person, and timelines for documentation/filing process.
Further clarifies charges only to be investigated for claims made after 1/1/2021
Job Posting Requirements – updates for clarity
Hourly or Salary rate (or ranges) along with a general description of benefits
General description of commissions or bonuses outside of salary and hourly rates
Benefits should include things like, health and welfare, 401K, PTO but do not need to include minor perks
Promotion Opportunities – employers should make reasonable efforts to announce all opportunities for promotion on the same calendar day to all current employees.
Clarifies what qualifies as a promotional opportunity and how to post for promotion opportunities
Provides qualifications for promotion and how to screen and interview for said positions
Exceptions to this rule – and when that would qualify
When keeping the new position open if someone is in the position currently, and the timelines for when sharing information is required
When automatic promotions are a part of the position and delivered through documented methods (such as an offer letter) and within one year of hire
Temporary positions with no intention of hiring – and if the status of the temporary position should change, then normal requirements could apply to post the opportunity
Equal Pay for Equal Work is one of the most significant employment laws happening on January 1, 2021. Employers need to be ready, for significant changes. Business owners and HR professionals may want to be considering their compensation strategy in their workplaces, completing an analysis of their job descriptions and pay rates for substantially similar positions to determine the equity in their compensation processes. This can be a complicated process, but non-compliance with this legislation could incur liability for your organization. As this is complex, connecting with your team's legal counsel is also something that may want to be considered.
There is more to come with some of the new legislation that was passed during this election season – so stay tuned as we bring more information set around Proposition 118 – Paid Leave, and Healthy Families Workplaces Act (HFWA).