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C L R DO O O A DI S ON OF L OR VI I AB F T S ETS AC HE MI MUM W AGE NI C ORADO W AGE ACT OL OL NI C ORADO MI MUM W AGE ORDER YOUTH E LOYMENT L MP AW MP AWS GENERAL E LOYMENT L E LOYMENT VERI I ATI L MP FC ON AW UB C ONT AC S F R T OR S R C S L E VI E AW P LI C BlRtrJ, oe o i ie r G vr r l t, . n D nl JMa sE eu v Dr t oa . r , xct e i c r d e i eo Mi al A d , i c r f ao c eMc rl Dr t o L br h e eo Pt Wi a , ao Sadrs d i s a r e r n t L br t a A m n t t e ge n d ir o C l ao i s n f ao o r Dv i o L br od io 63 7 Sr tS i 20 3 1t t e u e 0 h e, t D ne C l ao 00-60 evr o r 82236 , od w wcw rfr . m l w . okoc c /b o eo a BILL RITTER, JR. Governor DONALD J. MARES Executive Director MICHAEL J. MCARDLE Director of Labor DEPARTMENT OF LABOR AND EMPLOYMENT DIVISION OF LABOR 633 17th Street, Suite 200, Denver, CO 80202-3660 Telephone (303) 318-8441 Toll Free 1-888-390-7936 Fax (303) 318-8400 www.coworkforce.com/lab Colorado Minimum Wage Fact Sheet September 2008 This information is subject to change and does not constitute legal advice. Background Article XVIII, Section 15, of the Colorado Constitution requires the Colorado minimum wage to be adjusted annually for inflation. This fact sheet describes the minimum wage and inflation adjustment process. Colorado State Minimum Wage • • • January 1, 2009, will increase to $7.28 per hour. January 1, 2008, increased to $7.02 per hour. January 1, 2007, increased to $6.85 per hour. Tipped Employees Minimum Wage (employees who regularly receive tips) • • • January 1, 2009, will increase to $4.26 per hour ($7.28-$3.02). January 1, 2008, increased to $4.00 per hour ($7.02-$3.02). January 1, 2007, increased to $3.83 per hour ($6.85-$3.02). No more than $3.02 per hour in tip income may be used to offset the minimum wage of tipped employees. Inflation Adjustment Process In accordance with the Colorado Constitution, the Colorado minimum wage is adjusted annually for inflation as measured by the Consumer Price Index used for Colorado. The inflation adjustment is based on the Consumer Price Index for All Urban Consumers (CPI-U), All Items, for the Denver-Boulder-Greeley combined metropolitan statistical area as published by the United States Bureau of Labor Statistics (BLS). The CPI-U increased 3.7 percent from the first half of 2007 to the first half of 2008, which results in the new minimum wage of $7.28 per hour effective January 1, 2009. The August 14, 2008, BLS press release provides additional details on the Consumer Price Index data used in the minimum wage adjustment. Subsequent annual minimum wage calculations will be identical and will compare changes in the CPI-U from the first half of the preceding year with the first half of the current year to calculate a new minimum wage for the next year. For example, changes observed in the CPI-U from the first half of 2008 to the first half of 2009 will be used to calculate the minimum wage effective January 1, 2010. It is anticipated that data for future minimum wage adjustments, as provided by the BLS, will be available to the public in mid-August preceding each January adjustment. Who Must Receive Minimum Wage The minimum wage shall be paid to employees who receive the state or federal minimum wage. Article XVIII, Section 15, of the Colorado Constitution has not altered the coverage of employers, or the exemption of certain employees, from state or federal wage and hour laws. Filing Complaints The Division of Labor may accept complaints regarding non-payment of minimum wage. Visit www.coworkforce.com/lab, or call 303-318-8441 for information on how to file a complaint. The Division of Labor cannot investigate complaints regarding termination, interview, selection, or promotion disputes, reductions in work hours, or disputes pertaining to other terms and conditions of employment. You may wish to contact an attorney for legal guidance on these topics. Federal Law and Additional Resources Contact the U.S. Department of Labor for information on federal workplace laws. Visit www.dol.gov or call 720264-3250 for more information. The Advisory Bulletins and Resource Guide, produced by the Division of Labor, is a comprehensive guide to Colorado labor and employment laws. Click here to access the guide. Text of Colorado Constitution, Article XVIII, Section 15 Effective January 1, 2007, Colorado's minimum wage shall be increased to $6.85 per hour and shall be adjusted annually for inflation, as measured by the Consumer Price Index used for Colorado. This minimum wage shall be paid to employees who receive the state or federal minimum wage. No more than $3.02 per hour in tip income may be used to offset the minimum wage of employees who regularly receive tips. Bill Ritter, Jr. Governor Donald J. Mares Executive Director Colorado Department of Labor and Employment Division of Labor 633 17th Street, Suite 200 • Denver, CO 80202-3660 • (303) 318-8441 • www.coworkforce.com/lab Michael McArdle Director of Labor Peter Wingate Labor Standards Administrator Colorado Wage Act COVERAGE (8-4-101) The Colorado Wage Act (C.R.S. 8-4-101 et seq.) requires Colorado employers to pay employees their earned wages in a timely manner. The Wage Act is commonly referred to as the Colorado Wage Law or Colorado Wage Claim Act. DEDUCTIONS FROM WAGES (8-4-105) Applies to private sector employers in Colorado. Does not apply to public sector employers. Does not apply to independent contractors. DEFINITION OF WAGES (8-4-101(8)) • Wages are defined as all earned, vested, and determinable amounts for labor or service performed by employees, regardless of the method of calculation (e.g., time, task, piece, commission, etc.). • Bonuses or commissions earned in accordance with the terms of any agreement are wages. • Vacation pay earned in accordance with the terms of any agreement is wages. • Severance pay is not defined as wages. 4. Deductions authorized by an employee that are revocable, including medical insurance, savings 1. Deductions mandated by local, state, or federal plans, stock purchases, pension plans, charities, law, such as taxes, FICA requirements, and deposits to financial institutions. garnishments, and court-ordered deductions. 5. Deductions for the amount of money or value of 2. Deductions for loans, advances, goods or property that the employee failed to properly services, and equipment or property provided pay or return when the terminated employee by an employer to an employee pursuant to an was entrusted with such money or property. enforceable written agreement. 6. Deductions below the minimum wage 3. Deductions to cover the cost for theft if a report applicable under FLSA are not authorized. has been properly filed with law enforcement. Permissible deductions from wages include: FINAL PAY (8-4-109) ENFORCEMENT (8-4-111) PAY PERIODS AND PAYDAYS (8-4-103(1)) • Pay periods can be no greater duration than a calendar month or 30 days, whichever greater. • Paydays must occur no later than 10 days following the close of each pay period. PAY STATEMENTS (8-4-103(4)) Wages must be delivered to either the work site, employer’s local office, or the employee’s last known mailing address as follows: Employer ends the employment relationship 1. If the accounting unit is scheduled to be operational, pay is due immediately. 2. If the accounting unit is not scheduled to be operational, pay is due not later than 6 hours after the start of the accounting unit’s next regular workday. 3. If the accounting unit is located off-site, then wages are due no later than 24 hours after the start of the accounting unit’s next regular workday. Employee quits or resigns Wages are due by or on the next regular payday. 1. 2. 3. The Director of the Division of Labor is required or authorized to conduct investigations and inquiries regarding alleged violations of the Wage Act. District Attorneys in Colorado may prosecute violations of the Wage Act. Employees may pursue wages in a civil action. DISCRIMINATION PROHIBITED (8-4-120) Employers may not intimidate, threaten, restrain, coerce, discharge, or in any manner discriminate against any employee who has filed a complaint under the Wage Act. At least monthly, or at the time of payment of wages, the employer must furnish to the employee an itemized pay statement in writing showing: • Gross and net wages • All withholdings and deductions • Inclusive dates of the pay period • Name of the employee or SS# • Name and address of the employer NONWAIVER OF RIGHTS WAGES OWED / PAY DEMAND (8-4-109(3)) (8-4-121) DIRECT DEPOSIT AND PAYCARDS (8-4-102) Payment of wages by direct deposit must be voluntarily authorized by the employee. Such direct deposit must be in the financial institution chosen by the employee. Payment of wages by paycard must be voluntarily authorized by the employee. The employee must be provided free means of access to the entire amount of net pay at least once per pay period. If an employer refuses to pay all wages earned and vested through the employee’s last day of employment, the employee may: 1. Make a written demand within 60 days after the date of separation specifying where to send the wages. 2. If the employee’s earned wages are not mailed to the place specified in the demand and postmarked within 14 days after the receipt of the demand, the employer shall be liable for the wages and a significant penalty that may meet or exceed 125% of the amount owed or up to 10 days of compensation, whichever is greater. 3. The employee may only recover the above penalties in court; the Division cannot recover penalties for employees. Any agreement, written or oral, by any employee purporting to waive or modify such employee’s rights in violation of the Wage Act shall be void. STATUTE OF LIMITATIONS (8-4-122) All actions brought pursuant to the Wage Act shall be commenced within 2 years after the cause of action accrues. Willful violations of the Wage Act shall be commenced within 3 years after the cause of action accrues. POSTING REQUIREMENTS (8-4-107) Employer must post conspicuously a notice specifying the regular paydays and the time and place of payment. The notice must include any changes to paydays & time and place of payment. This complimentary guide is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information contact the Guide Revised August 2008 Division, an attorney, or an HR professional. Bill Ritter, Jr. Governor Donald J. Mares Executive Director Colorado Department of Labor and Employment Division of Labor 633 17th Street, Suite 200 • Denver, CO 80202-3660 • (303) 318-8441 • www.coworkforce.com/lab Michael McArdle Director of Labor Peter Wingate Labor Standards Administrator Colorado Minimum Wage Order Number 24 TIME WORKED The time during which an employee is subject to the control of an employer, including all the time when the employee is suffered or permitted to work whether or not required to do so, is compensable work time. Travel time All travel time spent at the control and direction of the employer, excluding normal home to work travel, is compensable work time. Sleep time: 24+ hours tour of duty Up to 8 hours of sleeping time can be excluded from compensable work time under certain circumstances. Sleep time: Less than 24 hours tour of duty Periods during which the employee is permitted to sleep are compensable work time, as long as the employee is on-duty. The Colorado Minimum Wage Order Number 24 (7 CCR § 1103-1), effective January 1, 2008 regulates wages, hours, working conditions, and procedures for certain employers and employees in Colorado. The Wage Order is promulgated by the Colorado Division of Labor. The Wage Order, in some instances, provides different requirements than FLSA. Contact the U.S. DOL for information on FLSA and federal wage and hour laws (www.dol.gov or 1-866-4USWAGE). INDUSTRY COVERAGE Applies to private sector employers & employees in Colorado in the following 4 industries: 1. Retail and Service 2. Commercial Support Service 3. Food and Beverage 4. Health and Medical Does not apply to public sector employers. Does not apply to independent contractors. Does not apply to a variety of other industries such as construction, manufacturing, wholesale. EXEMPTIONS Contact the Division for more information on the following exemptions: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Administrative Executive/Supervisor Professional Outside sales Domestic employees Companions Casual babysitters Property managers Interstate drivers Driver helpers, loaders, mechanics Taxicab drivers Elected officials Volunteers Interns Prisoners MINIMUM WAGE Minimum wage (MW) is $7.02 per hour for all adult employees and emancipated minors. Minimum wage credits and exceptions 1. Up to $25 per week for lodging furnished by the employer may count towards MW. 2. Reasonable cost of meals provided to the employee may count towards MW. 3. Unemancipated minors under 18 may be paid $5.97 per hour. 4. Employees with physical disability certified by the Director may be paid $5.97 per hour. 5. Deductions from wages must be in accordance with the Wage Act. OVERTIME In general, non-exempt employees covered by the Wage Order must be paid time and one-half their regular rate of pay for any work in excess of: 1. 40 hours per workweek. 2. 12 hours per workday. 3. 12 consecutive hours without regard to the start and end time of the workday. Exemptions from overtime 1. Salespersons, parts-persons, and mechanics employed by automobile, truck, or farm implement dealers. 2. Certain commissioned salespersons in retail and service. 3. Certain ski industry employees. 4. Certain medical transportation employees. ENFORCEMENT • The Division has jurisdiction over all questions of fact regarding the Wage Order. • Any person may file a written complaint with the Division regarding alleged violations of the Wage Order. TIPPED EMPLOYEES 1. An employee engaged in an occupation where he or she customarily and regularly receives more than $30 per month in tips is defined as a tipped employee. Employers must pay a wage of at least $4.00 per hour. If tips combined with wages do not equal minimum wage, the employer must make up the difference in cash wages. Employer-required sharing of tips with employees who are not customarily tipped nullifies tip credits towards minimum wage. Deduction of credit card processing fees from tipped employees nullifies tip credits towards minimum wage. • Complaints must be filed within 2 years of the alleged violation. 2. MEAL PERIODS 1. Employees are entitled to an uninterrupted and dutyfree 30-minute unpaid meal period when their work shift exceeds 5 consecutive hours. The employee must be completely relieved of all duties for the meal period. If the above conditions are not met, then the employee must be allowed to consume a meal on-duty, and be compensated for the entire on-duty meal period. REPRISALS Employers shall not threaten, coerce, or discharge any employee because of participation in any investigation or hearing related to the Minimum Wage Act (C.R.S. 8-6-101 et seq.) 2. 3. 3. 4. DUAL JURISDICTION Whenever employers are subject to both federal and Colorado law, the law providing the greater protection or benefit for the employee will apply. REST PERIODS • Employees are entitled to a compensated 10-minute rest period for each 4 hours of work or major fractions thereof. Wages may not be deducted for the rest period. UNIFORMS 1. The employer must pay the cost of the employee uniform if the uniform requires a specific make, logo, or material. Clothing that is considered ordinary streetwear does not constitute a uniform. Employers may require a reasonable deposit up to 50% of the cost of the uniform; must be refunded to the employee upon return. • It is not required that the employee be permitted to leave the premises for the rest period. This complimentary guide is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information contact the Division, an attorney, or an HR professional. POSTING REQUIREMENTS Employers covered by the Wage Order must display a Wage Order poster in an area frequented by employees during the workday. Visit www.coworkforce.com/lab to obtain a free poster. 2. 3. Guide Revised January 2008 Bill Ritter, Jr. Governor Donald J. Mares Executive Director Colorado Department of Labor and Employment Division of Labor 633 17th Street, Suite 200 • Denver, CO 80202-3660 • (303) 318-8441 • www.coworkforce.com/lab Michael McArdle Director of Labor Peter Wingate Labor Standards Administrator Colorado Youth Law PERMISSIBLE OCCUPATIONS (8-12-106, 107, 108, 109) The Colorado Youth Employment Opportunity Act (C.R.S. 8-12-101 et seq.) regulates the employment of minors in Colorado. The Fair Labor Standards Act (FLSA) and its regulations do not permit the employment of minors in a variety of circumstances. When both federal and state laws apply, the more stringent standard must be observed. Contact the U.S. DOL for information on FLSA and federal youth laws (www.dol.gov or 1-866-4USWAGE). DEFINITION OF A MINOR (8-12-103(5)) HAZARDOUS / PROHIBITED (8-12-110) A minor is any person under the age of 18, except a person who has received a high school diploma or a passing score on the general educational development (GED) examination. Minors under the age of 9 cannot generally be employed. Permissible at age 9 or older: 1. Delivery of handbills and advertising. 2. Shoe shining. 3. Gardening and care of lawns involving no power-driven lawn equipment. 4. Cleaning of walks involving no powerdriven snow-removal equipment. 5. Casual work usual to the home of the employer and not specifically prohibited. 6. Caddying on golf courses. 7. Occupations similar to the above. Permissible at age 12 or older: 1. Sale and delivery of periodicals. 2. Door-to-door selling and delivery of merchandise. 3. Baby-sitting. 4. Gardening and care of lawns, and cleaning of walks; contact the Division regarding use of power-driven equipment. 5. Non-hazardous agricultural work. 6. Occupations similar to the above. Permissible at age 14 or older: 1. Non-hazardous occupations in manufacturing. 2. Public messenger service and errands by foot, bicycle and public transportation. 3. Operation of automatic enclosed freight and passenger elevators. 4. Janitorial and custodial service. 5. Office work and clerical work. 6. Warehousing and storage, including unloading and loading of vehicles. 7. Non-hazardous construction and nonhazardous repair work. 8. Occupations in retail food service. 9. Certain gasoline service occupations. 10. Occupations in retail stores. 11. Occupations in restaurants, hotels, motels, or other public accommodations. 12. Occupations related to parks or recreation. 13. Occupations similar to the above. Permissible at age 16 or older: The occupations listed above and the operation of a motor vehicle if the minor is licensed to operate the motor vehicle for such use pursuant to Colorado Revised Statutes Article 2, Title 42. This complimentary guide is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information contact the Division, an attorney, or an HR professional. EXEMPTIONS FROM CYEOA (8-12-104) The CYEOA does not generally apply to the following: 1. Schoolwork and supervised educational activities. 2. Home chores. 3. Work done for a parent or guardian, except where the parent or guardian receives any payment therefore. 4. Newsboys and newspaper carriers. 5. Actors, models, and performers are exempt from the age-related restrictions for minors under age fourteen. WORK PERMITS (8-12-111) Work permits are not required by Colorado law. Age Certificates Any employer desiring proof of the age of any minor employee or prospective employee may require the minor to submit an age certificate. Age certificates are issued by or under the authority of the school superintendent of the district or county in which the applicant resides. School Release Permits Any minor fourteen or fifteen years of age who wishes to work on school days during school hours shall first secure a school release permit. Such permit is issued only by the school district superintendent, his agent, or some other person designated by the board of education. Operation of any high pressure steam boiler or high temperature water boiler. 2. Work which primarily involves the risk of falling from any elevated place located ten feet or more above the ground except that work defined as agricultural involving elevations of twenty feet or less above ground. 3. Manufacturing, transporting, or storing of explosives. 4. Mining, logging, oil drilling, or quarrying. 5. Any occupation involving exposure to radioactive substances or ionizing radiation. 6. Operation of power-driven machinery: a) Woodworking machines b) Metal-forming machines c) Punching or shearing machines d) Bakery machines e) Paper products machines f) Shears g) Automatic pin-setting machines h) Power food slicers and grinders 7. Any other power-driven machinery deemed hazardous by the Director. 8. Slaughter of livestock and rendering and packaging of meat. 9. Occupations directly involved in the manufacture of brick or other clay construction products, or silica refractory products. 10. Wrecking or demolition, but not including manual auto wrecking. 11. Roofing. 12. Occupations in excavation operations. 1. WORK HOUR RESTRICTIONS (8-12-105) REQUEST AN EXEMPTION (8-12-104) • The Director may grant exemptions from some provisions of the CYEOA. • Any employer, minor, minor’s parents or guardian, school official, or youth employment specialist may request an exemption. • Exemptions are evaluated on a case-by-case basis, and are granted or denied in accordance with the best interests of the minor. • Exemption determinations involve the scrutiny of such factors as the minor’s previous training and safety concerns. Guide Revised January 2008 General Restrictions No employer shall be permitted to work a minor more than forty hours in a week or more than eight hours in any twenty-four-hour period. School Day Restrictions On school days, during school hours, no minor under the age of sixteen shall be permitted employment except as provided by a school release permit. After school hours no minor under the age of sixteen shall be permitted to work in excess of six hours unless the next day is not a school day. Nighttime Restrictions Except for babysitters, no minor under the age of sixteen shall be permitted to work between the hours of nine-thirty p.m. and five a.m., unless the next day is not a school day. An exception to this rule is a minor employed as an actor, model, or performer. Bill Ritter, Jr. Governor Donald J. Mares Executive Director Colorado Department of Labor and Employment Division of Labor 633 17th Street, Suite 200 • Denver, CO 80202-3660 • (303) 318-8441 • www.coworkforce.com/lab Michael McArdle Director of Labor Peter Wingate Labor Standards Administrator General Employment Laws and Resources EMPLOYMENT-AT-WILL Colorado follows the legal doctrine of “employment-at-will”, which provides that employers and employees have an at-will relationship either of them may terminate at any time without advance notice or cause unless the employee is hired for a definite period of time or there is an agreement limiting the reasons for discharge. There are many exceptions to employment-at-will, including various exceptions created by the legislature and the courts such as discrimination, public policy, and contract law. Contact an attorney for more information. JURY DUTY AND PAY • All regularly employed trial or grand jurors shall be paid regular wages, but not to exceed $50 per day unless by mutual agreement between the employee and employer, by their employers for the first 3 days of juror service or any part thereof. WORK LEAVE Holiday Pay Colorado wage law does not require nor prohibit any paid holidays. When an employee is paid for a non-work holiday, the holiday hours do not count towards overtime unless actual work was performed. Sick Pay Colorado wage law does not require nor prohibit sick pay or leave. Colorado wage law does not require employers to provide paid leave due to illness. Severance Pay Colorado wage law does not require nor prohibit severance pay. Severance pay is a benefit offered by employers at their own discretion. Medical or Pregnancy Leave Colorado does not have a medical or pregnancy leave law that applies to the private sector. Domestic Abuse Leave Employees in Colorado may request or take up to 3 working days of leave from work in any 12-month period, with or without pay, if the employee is the victim of domestic abuse, stalking, sexual assault, or other crimes related to domestic abuse. This leave law applies only to employers who employ 50 or more employees and to employees who have been employed with the employer for 12+ months. OFF-DUTY ACTIVITIES It is a discriminatory or unfair employment practice for an employer in Colorado to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours, unless such a restriction either: 1. Relates to a bona fide occupational requirement OR 2. Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. • State law protects a juror’s job; an employer shall not threaten, coerce, or discharge an employee for reporting for juror service as summoned. ⇒ Information: www.courts.state.co.us VOTING AND PAY • Employees who have 3 or more non-work hours available during the hours polls are open (typically 7:00 a.m. to 7:00 p.m.) on election day are not entitled to time off to vote. ⇒ Information: Contact an attorney. EMPLOYMENT REFERENCES Colorado law states that any employer who provides information about a current or former employee’s job history or job performance to a prospective employer of the current or former employee is immune from civil liability and is not liable in civil damages for the disclosure or any consequences of the disclosure. This immunity shall not apply when: 1. The information disclosed by the current or former employer was false AND 2. The employer providing the information knew or reasonably should have known that the information was false. ⇒ Information: Contact an attorney. • Upon prior request (before election day) by the employee, employers must provide up to 2 hours of paid time off to vote if the employee does not have 3 or more non-work hours between 7:00 a.m. and 7:00 p.m. • The Secretary of State oversees elections. ⇒ Information: www.elections.colorado.gov EMPLOYER BANKRUPTCY Employees may have a higher priority in bankruptcy than other creditors. If your employer has filed for bankruptcy you will need to contact the appropriate bankruptcy court to enter a claim. The Division cannot assist in disputes when the employer has filed for bankruptcy. ⇒ Information: Contact an attorney. DISCRIMINATION The Colorado Civil Rights Division handles claims of discrimination in employment, housing, and public accommodations in Colorado. FEDERAL AGENCIES Bankruptcy DOL EEOC Immigration IRS NLRB OSHA cob.uscourts.gov dol.gov eeoc.gov uscis.gov irs.gov nlrb.gov osha.gov 720-904-7300 720-264-3250 303-866-1300 800-375-5283 800-TAX-1040 303-844-3551 303-844-5285 ⇒ Information: www.dora.state.co.us/civil-rights UNEMPLOYMENT INSURANCE The Colorado UI Program provides temporary and partial wage replacement to workers who have become unemployed through no fault of their own. ⇒ Information: www.cob.uscourts.gov SMALL CLAIMS COURT Small claims courts in Colorado are a division of the county court system designed to provide a quick and inexpensive resolution to minor claims. Small claims courts are courts of limited jurisdiction; the court cannot award more than $7,500 in monetary awards. ⇒ Information: www.coworkforce.com/uib WORKERS’ COMPENSATION The Division of Workers’ Compensation administers the mandatory WC insurance program. STATE AGENCIES Civil Rights Department of Labor & Employment dora.state.co.us/ civil-rights coworkforce.com 303-894-2997 303-318-8000 ⇒ Information: www.courts.state.co.us LABOR MARKET INFORMATION Information on occupational wages, employment statistics, and labor force trends is available from Colorado Labor Market Information. ⇒ Information: www.coworkforce.com/dwc EMPLOYMENT AND TRAINING Colorado Workforce Centers provide easy access to a wide array of employment and training services and job opportunities in Colorado. ⇒ Information: www.coworkforce.com/emp Division of Labor coworkforce.com/ 303-318-8441 lab Revenue revenue.state.co.us 303-238-7378 Unemployment coworkforce.com/ 303-318-9000 uib Workers’ coworkforce.com/ 303-318-8700 Compensation dwc ⇒ Information: www.coworkforce.com/lmi This complimentary guide is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information contact the Division, an attorney, or an HR professional. Guide Revised January 2008 Colorado Department of Labor and Employment Division of Labor 633 17th Street, Suite 200 • Denver, CO 80202-3660 • (303) 318-8441 • www.coworkforce.com/lab Bill Ritter, Jr. Governor Donald J. Mares Executive Director Michael McArdle Director of Labor Peter Wingate Labor Standards Administrator Colorado Employment Verification Law IMMIGRATION LAW: 8-2-122, C.R.S. (HB 06S-1017) Effective January 1, 2007, a new Colorado law (8-2-122, C.R.S.) requires Colorado employers to verify and document the legal eligibility for employment of newly-hired employees. This law is in addition to federal employment verification requirements (such as Form I-9 requirements). For more information, visit www.coworkforce.com/lab EMPLOYER COVERAGE 8-2-122(1)(c) AFFIRMATION REQUIREMENT 8-2-122(2) Employers are defined broadly under the law to include both public and private employers. Employers are defined as: A person or entity that transacts business in Colorado; at any time, employs another person to perform services of any nature; and has control of the payment of wages for such services or is the officer, agent, or employee of the person or entity having control of the payment of wages. EMPLOYEE COVERAGE 8-2-122(2) Effective on and after January 1, 2007, within 20 days after hiring a new employee, each employer in Colorado shall keep a written or electronic copy of an affirmation for the term of employment for each employee. The employer shall affirm that: 1. The employer has examined the legal work status of such newly-hired employee (hired on and after January 1, 2007); 2. The employer has retained file copies of the documents required by 8 U.S.C. sec. 1324a (copies of the employee’s Form I-9 identity documents); 3. The employer has not altered or falsified the employee’s identification documents; 4. The employer has not knowingly hired an unauthorized alien. Visit http://www.coworkforce.com/lab/AffirmationForm.pdf for an example of an acceptable affirmation. Another substantially similar affirmation may be used, provided that it contains the necessary elements and information as required by the law. IDENTITY DOCUMENTS REQUIREMENT 8-2-122(2) The law applies to Colorado employees hired on and after January 1, 2007. The affirmation requirements must be met within 20 days after hiring a new employee. PENALTIES 8-2-122(4) An employer who, with reckless disregard, (1) fails to submit the documentation required by this section, or who, (2) with reckless disregard, submits false or fraudulent documentation, shall be subject to a fine of not more than five thousand dollars for the first offense and not more than twenty-five thousand dollars for the second and any subsequent offense. For the term of employment for each employee, the employer shall keep a written or electronic copy of the documents required by 8 U.S.C. sec. 1324a. The documents required by 8 U.S.C. sec. 1324a are the identity documents which an employee presents to the employer for the federal Form I-9. The following resources provide information on acceptable I-9 identity documents which must be copied for the Colorado law: Resources regarding identity documents under federal law and completion of the Form I-9 1. Visit www.uscis.gov > “for employers” > a. About Form I-9, Employment Eligibility Verification b. M-274, Handbook for Employers (Instructions for Completing Form I-9; revised 11/1/07) 2. 3. Visit www.uscis.gov > “for employers” Form I-9 (revised 6/5/07) Visit www.uscis.gov > “services and benefits” > “customer guides” > “I am an employer in the United States, how do I…” Complete Form I-9, Employment Verification? ENFORCEMENT (8-2-122(3)) AND NON-DISCRIMINATION (8-2-122(5)) The Division of Labor within the Colorado Department of Labor and Employment has been charged with enforcement of the provisions of this law. The Director of the Division of Labor, or the Director’s designee, may conduct random audits of employers in Colorado to obtain the required documentation. When the Director has reason to believe that an employer has not complied with the employment verification and examination requirements, the Director shall request the employer to submit the documentation. It is the public policy of Colorado that this section shall be enforced without regard to race, religion, gender, ethnicity, national origin, or disability. This fact sheet is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information, contact the Division, an attorney, or a human resources professional. September 2008 Colorado Department of Labor and Employment Division of Labor 633 17th Street, Suite 200 • Denver, CO 80202-3660 • (303) 318-8441 • www.coworkforce.com/lab Bill Ritter, Jr. Governor Donald J. Mares Executive Director Michael McArdle Director of Labor Peter Wingate Labor Standards Administrator Colorado Public Contracts for Services and Illegal Aliens Law IMMIGRATION LAW: 8-17.5-101 & 102, C.R.S. (HB 06-1343) Effective August 7, 2006, a new Colorado law (8-17.5-101 & 102, C.R.S.) imposes requirements upon persons who have a public contract for services with state agencies or political subdivisions. This law was amended on May 13, 2008, allowing contractors to use the newly created Department Program as an alternative to E-Verify. For more information, visit www.coworkforce.com/lab DEFINITIONS 8-17.5-101 EXCLUDED FROM THE LAW 8-17.5-101(6)(b) (Public contract for services does not include) Contractor: A person having a public contract for services with a state agency or political subdivision of the state. Public contract for services: Any type of agreement, regardless of what the agreement may be called, between a state agency or political subdivision and a contractor for the procurement of services. Services: The furnishing of labor, time, or effort by a contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. State agency: Any department, commission, council, board, bureau, committee, institution of higher education, agency, or other governmental unit of the executive, legislative, or judicial branch of state government. Political subdivision: Any city, county, city and county, town, special district, school district, local improvement district, or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law. E-Verify Program: The electronic employment verification program created in Public Law 104-208, as amended, and expanded in Public Law 108-156, as amended, and jointly administered by the United States Department of Homeland Security and the Social Security Administration, or its successor program. Public contract for services does not include: (1) Agreements relating to the offer, issuance, or sale of securities, including but not limited to agreements pertaining to: (a) Underwriting, marketing, remarketing, paying, transferring, rating, or registering securities; or (b) The provision of credit enhancement, liquidity support, interest rate exchanges, or trustee or financial consulting services in connection with securities; or (2) Agreements for investment advisory services or fund management services; (3) Any grant, award, or contract funded by any federal or private entity for any research or sponsored project activity of an institution of higher education or an affiliate of an institution of higher education that is funded from moneys that are restricted by the entity under the grant, award, or contract. For purposes of this paragraph, “sponsored project” means an agreement between an institution of higher education and another party that provides restricted funding and requires oversight responsibilities for research and development or other specified programmatic activities that are sponsored by federal or private agencies and organizations; (4) Intergovernmental agreements; or (5) Agreements for information technology services or products and services. OVERVIEW 8-17.5-102(1) A state agency or political subdivision shall not enter into or renew a public contract for services with a contractor who: (1) Knowingly employs or contracts with an illegal alien to perform work under the contract, or (2) Knowingly contracts with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. Prior to executing a public contract for services, each prospective contractor shall certify that, at the time of the certification: (1) It does not knowingly employ or contract with an illegal alien who will perform work under the public contract for services, and (2) That the contractor will participate in the E-Verify program or the Department Program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. This fact sheet is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information, contact the Division, an attorney, or a human resources professional. June 2008 Colorado Public Contracts for Services and Illegal Aliens Law IMMIGRATION LAW: 8-17.5-101 & 102, C.R.S. (HB 06-1343) CERTIFICATION AND CONTRACT PROVISIONS 8-17.5-102(2) DEPARTMENT OF LABOR AUTHORITY AND ENFORCEMENT 8-17.5-102(5) Each public contract for services shall include a provision that the contractor shall not: (1) Knowingly employ or contract with an illegal alien to perform work under the public contract for services; or (2) Enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. Each public contract for services shall also include the following provisions: (1) A provision stating that the contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the E-Verify Program or the Department Program. (2) A provision that prohibits the contractor from using either the E-Verify Program or the Department Program procedures to undertake preemployment screening of job applicants while the public contract for services is being performed; (3) A provision that, if the contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the contractor shall be required to: (a) Notify the subcontractor and the contracting state agency or political subdivision within three days that the contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; (b) Terminate the subcontract with the subcontractor if within three days of receiving the required notice the subcontractor does not stop employing or contracting with the illegal alien; except that the contractor shall not terminate the contract with the subcontractor if the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien; (4) A provision that requires the contractor to comply with any reasonable request by the department made in the course of an investigation that the department is undertaking pursuant to 8-17.5-102(5). The department may investigate whether a contractor is complying with the provisions of a public contract for services required pursuant to 8-17.5-102(2). Department Authority: (1) Conduct on-site inspections where a public contract for services is being performed within the state of Colorado; (2) Request and review documentation that proves the citizenship of any person performing work on a public contract for services; (3) Take any other reasonable steps that are necessary to determine whether a contractor is complying with the provisions of a public contract for services required pursuant to 8-17.5-102(2). (4) The department may conduct random audits of state agencies and political subdivisions to review documentation required by 8-17.5-102(5)(c). Receipt of Complaints: The department shall receive complaints of suspected violations of a provision of a public contract for services required pursuant to 817.5-102(2) and shall have discretion to determine which complaints, if any, are to be investigated. Contract Termination: If a contractor violates a provision of the public contract for services required pursuant to 8-17.5-102(2), the state agency or political subdivision may terminate the contract for a breach of the contract. If the contract is so terminated, the contractor shall be liable for actual and consequential damages to the state agency or political subdivision. SECRETARY OF STATE NOTIFICATION AND LIST 8-17.5-102(4) A state agency or political subdivision shall notify the office of the secretary of state if a contractor violates a provision of a public contract for services required pursuant to 8-17.5-102(2) and the state agency or political subdivision terminates the contract for such breach. Based on this notification, the secretary of state shall maintain a list that includes the name of the contractor, the state agency or political subdivision that terminated the public contract for services, and the date of the termination. A contractor shall be removed from the list if two years have passed since the date the contract was terminated, or if a court of competent jurisdiction determines that there has not been a violation of the provision of the public contract for services required pursuant to 8-17.5-102(2). A state agency or political subdivision shall notify the office of the secretary of state if a court has made such a determination. The list shall be available for public inspection at the office of the secretary of state and shall be published on the internet on the website maintained by the office of the secretary of state. This fact sheet is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information, contact the Division, an attorney, or a human resources professional. June 2008 Colorado Public Contracts for Services and Illegal Aliens Law IMMIGRATION LAW: 8-17.5-101 & 102, C.R.S. (HB 06-1343) Contractors who enter into or renew a public contract for services with Colorado state agencies or political subdivisions must participate in either the federal E-Verify Program or the Colorado Department of Labor Department Program (“Department Program”). E-VERIFY PROGRAM E-Verify Contractors covered by the Colorado law will participate in the federal EVerify program or the Department Program. The E-Verify Program is a web-based application that provides a company with a way to electronically verify the employment authorization of all newly-hired employees, regardless of citizenship. The E-Verify Program may not be used to undertake pre-employment screening. THE DEPARTMENT PROGRAM 8-17.5-102(5)(c) The option to enroll in the Department Program instead of E-Verify was created by Colorado State Senate Bill 08-193, which amended the Public Contracts for Services and Illegal Aliens Law, 8-17.5101 and 102, C.R.S. on May 13, 2008. Department Program Details: (1) Any contractor who participates in the Department Program shall notify the department and the contracting state agency or political subdivision of such participation. A participating contractor shall comply with the provisions of paragraph (2) and shall consent to department audits conducted in accordance with paragraph (3). Failure to meet either of these obligations shall constitute a violation of the Department Program. The Executive Director shall notify a contracting state agency or political subdivision of such violation. (2) A participating contractor shall, within twenty days after hiring an employee who is newly hired for employment to perform work under the public contract for services, affirm: • that the contractor has examined the legal work status of such employee; • Retained file copies of documents required by 8 U.S.C. section 1324a (commonly known as I-9 identity documents), and; • Not altered or falsified the identification documents for such employees. The contractor shall provide a written, notarized copy of the affirmation to the contracting state agency or political subdivision. (3) The department may conduct random audits of state agencies and political subdivisions to review documentation required by 8-17.5-102(5)(c). Nothing in the Department Program shall be construed as requiring a contractor to violate any terms of participation in the E-Verify Program. Additional Information: For additional information on the Department Program, please see the following: a. Department Program Process Guide b. Contractor Notice of Participation in the Department Program c. Sample Contractor Affirmation Registration for E-Verify You can register online for E-Verify at: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm Questions on registration/use may be directed to the federal Office of Verification (USCIS) toll-free at 1-888-464-4218. E-Verify Questions and Answers: Q. How much does it cost to participate in the E-Verify Program? A: There is no charge to the employer. Q. What equipment is needed for E-Verify? A: You need a personal computer with access to the Internet. Q. What are the advantages for employers to participate in the E-Verify Program? A: E-Verify removes the guesswork from document review during the Form I-9 process; it allows the employer to confirm the employment eligibility of all newly hired employees; it improves the accuracy of wage and tax reporting; and it protects jobs for authorized workers. Q. Can I verify the work eligibility of all employees in my company? A: No, you may only verify the employment eligibility of employees hired after you signed the Memorandum of Understanding (MOU). Q. Does participation in E-Verify eliminate the requirement of completing a Form I-9, Employment Eligibility Verification Form? A: No, Form I-9 requirements remain the same with the exception that all "List B" identity documents must contain a photograph. Q. Can I use the system to re-verify the employment eligibility of an employee whose employment eligibility document has expired? A: No, the system should not be used to re-verify employment eligibility. You would follow the procedures currently in place by completing Section 3 of the Form I-9. Resources on federal law and the E-Verify Program Visit www.uscis.gov > “for employers” > a. About E-Verify b. Form I-9, Employment Eligibility Verification (revised 6/5/07) c. M274, Handbook for Employers (revised 11/1/07) This fact sheet is provided by the Colorado Division of Labor. Its condensed and simplified content is for general informational purposes only, and does not constitute legal advice. For more information, contact the Division, an attorney, or a human resources professional. June 2008