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What are the requirements relating to advertising open positions?
It is unlawful to induce, influence, persuade or engage workers to change from one place to another or to bring workers to work in this state through means of false or deceptive representations, false advertising, or false pretences concerning the kind and character of the work to be done, or the amount and character of the compensation to be paid, or the sanitary or other conditions of employment, or the existence or non-existence of a strike or lockout pending between the employer and employees (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).
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Colorado employers may not inquire about sealed records (C.R.S. §24-72-702). Otherwise, Colorado law does not restrict an employer’s use of criminal history records for both arrests and convictions. However, the Colorado Civil Rights Division states in its Pre-employment Inquiries Guidelines that asking any questions about arrests may lead to a discriminatory inference and questions about convictions should be substantially related to the applicant’s ability to perform a specific job.
(b) Medical history
The Colorado Code of Regulations prohibits pre-offer medical examinations and pre-employment inquiries as to whether an applicant is an individual with a disability (3 CCR §708-1:60.3). However, employers may condition an offer of employment on the results of a medical examination conducted before the employee begins employment, 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.,2015 CO 44 (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. Generally, employers may not require or request a credit report as a condition of employment, unless the employer is a financial institution, the report is required by law, or the report is substantially related to the employee’s current or potential job and is disclosed in writing to the employee.
“Substantially related to the employee’s current or potential job” means the information in a credit report is related because the position:
- constitutes executive or management personnel (or their professional staff) and involves one or more of the following:
- setting the direction or control of a business, division, unit, or agency of a business;
- a fiduciary responsibility to the employer;
- access to customers’, employees’, or the employer’s personal or financial information other than which is customarily provided in a retail transaction; or
- the authority to issue payments, collect debts, or enter into contracts.
- involves contracts with defense, intelligence, national security, or space agencies of the federal government; or
- is a bank or financial institution.
(e) Immigration status
Colorado has its own employment verification law above and in addition to that which is required by federal law (C.R.S. §8-2-122). Effective August 10 2016, provisions of this law will no longer be in effect as the 2016 Colorado legislature repealed it. Until the effective date of the repeal, employers must complete an affirmation of legal work status form for all newly hired employees within 20 calendar days of hire. Employers must retain the completed forms for the duration of the employee’s employment.
In addition, employers must make and keep copies of the documents that employees present as their identity and authorization documents when completing the federal Form I-9. This requirement will no longer be in effect after August 10 2016. Federal law requires that such documents be examined, but does not require that copies of the documents be made and retained.
(f) Social media
Colorado employers may not suggest, request, or require that an employee or applicant disclose any user name, password, or any other information that provides access to the individual’s personal accounts or personal electronic communications devices. Employers also may not compel an employee or applicant to add anyone as a “friend” or to his or her list of contacts and may not require, request, suggest, or cause an employee or applicant to change his of her 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).
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).
Wage and hour
What are the main sources of wage and hour laws in your state?
Colorado Revised Statutes – Title 8 – Labor and Industry – Article 4 – Wages – contains the majority of the laws governing wage and hour issues. The Code of Colorado Regulations, 7 CCR 1101–1103, includes the regulations concerning wages.
What is the minimum hourly wage?
The Colorado Constitution, Article XVIII, Section 15, requires that the state minimum wage be adjusted annually for inflation, as measured by the Consumer Price Index used for Colorado. For 2016 the minimum wage is $8.31 per hour. The minimum wage for tipped employees is $5.21 per hour (see Colorado Minimum Wage Order Number 32).
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, if the accounting unit is operational. If the accounting unit is not scheduled to be operational, pay is due no later than six hours after the start of the accounting unit’s next regular working day. If the accounting unit is off-site, wages are due no later than 24 hours after the start of the accounting unit’s next regular working day (C.R.S. §8-4-109).
When an employee resigns or quits his or her employment, all earned wages are due by or on the next regular working day (C.R.S. §8-4-109).
Generally, deductions from wages are permitted for the following:
- deductions mandated by local, state, or federal law (e.g., Federal Insurance Contributions Act requirements, and garnishments);
- for loans, advances, goods or services and equipment or property provided by an employer to the employee pursuant to a written agreement;
- to cover 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
- for 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 (C.R.S. §8-4-105).
Hours and overtime
What are the requirements for meal and rest breaks?
For individuals covered by the Colorado Minimum Wage Order, 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 possible, rest periods should be in the middle of each four-hour work period (Colorado Minimum Wage Order 32 (2016)).
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).
Firemen 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 (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 Colorado Minimum Wage Order 32 (2016)).
How should overtime be calculated?
For individuals covered by the Colorado Minimum Wage 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 Colorado Minimum Wage Order 32 (2016)).
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, and salespersons employed by trailer, aircraft and retail boat dealers. Other exemptions include:
- employees in executive, administrative, professional, and outside sales capacities;
- companions, casual babysitters, and domestic employees employed by households;
- property managers;
- interstate drivers, driver helpers, taxi drivers and loaders or mechanics of motor carriers;
- bona fide volunteers; and
- additional categories for employees in particular industries (Colorado Minimum Wage Order 32 (2016)).
What payroll and payment records must be maintained?
For employees covered by the Colorado Minimum Wage Order, employers must keep for at least three years a true and accurate record of the following:
- name, address, social security number, 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 (Colorado Minimum Wage Order 32 (2016)).
Federal payroll record-keeping requirements exist under the Fair Labor Standards Act.