Colorado Employment Law – 2018 Update

Happy New Year from PSB Law Firm, LLC

1. #MeToo- Sexual Harassment Investigations and What You Should Do: In view of all the high profile sexual harassment claims, Colorado employers are taking sexual harassment claims more seriously.  One approach is to increase preventative measures by enacting new policies and training human resources representatives. Public perception of sexual harassment has changed, so employers must do more. EVERY employer should have a written anti-harassment policy that includes all forms of illegal harassment (gender, race, religion, race national origin and ethnicity, disability status, age, and in Colorado, sexual orientation). An effective anti-harassment policy will inform employees and others about how harassment claims may be made, and protect the employer from automatic liability for harassment claims.

2. Minimum Wage for 2018. The Division of Labor Standards and Statistics has adopted Colorado Minimum Wage Order Number 34, raising the state minimum wage of $10.20 per hour. No more than $3.02 per hour in tip income may be used to offset the minimum wage of tipped employees. With the passage of Amendment 70 last year, effective January 1, 2017, minimum wage is increased annually by $0.90 each January 1 until it reaches $12 per hour effective January 2020. Thereafter it will be adjusted annually for cost of living increases. Employers covered by the Wage Order are required to post the Colorado Minimum Wage Order Poster, which may be ordered from the Colorado Department of Labor website.

 3.  Update to Colorado’s Independent Contractor Relationships

Varsity Tutors Case

In Varsity Tutors, Inc. v. the Ind. Claims Appeals Office (July 2017), the Colorado Court of Appeals reversed two decisions made by the Department of Labor and Employment, in view of modern employment practices. Here, tutors who advertised on a website maintained by Varsity Tutors (“Varsity”) had been held to be employees of Varsity. Because “the Internet has changed how we work in many ways,” and in reliance on a 2014 Colorado Supreme Court decision, Softrock, the Court of Appeals reversed the Department of Labor’s determinations and held that the tutors are independent contractors.

Historically, the Department of Labor has looked for traditional evidence of an independent business.  Traditional evidence of an independent business would include business cards, individual website or phone book listing, office address, evidence of other customers and liability insurance.  However, a modern business does not need any of those items.   Further, as per recent Supreme Court precedence, a “totality of the circumstances” must be considered.  Here, almost all of the tutors had “day jobs” in other industries, had no other tutoring customers, and most made small amounts of money with Varsity (suggesting that they are not financially dependent upon Varsity).  Based on the totality of the circumstances, the Court of Appeals held that these tutors were engaged an independent tutoring business, and upheld the independent contractor relationship.

The Varsity Tutors case did NOT change the way the Department of Labor looks at how a worker is controlled, the other major factor of determining the presence of an independent contractor relationship.   A worker who regularly works exclusively for one entity and is controlled by that entity is an employee under Colorado law.

  1. Employee Rights Expansions: Three recent changes that affect all employees:

Wage Theft Transparency Law

Colorado employers found in violation of various wage laws (misclassification or failure to pay minimum wage and overtime, among others), can expect to have their names and the details of these violations, announced to the public.

Wage Transparency in Employment

It is now an unfair employment practice for any employer to discharge, discipline, discriminate against, coerce, intimidate threaten or interfere with any employee or other person because that person inquired about, disclosed, compared or otherwise discussed the employee’s wages.

Personnel Files

This law effective last year, and requires all employers to make the personnel file of an employee available to that employee upon request, at least once per year and after termination of employment.

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