7 CCR 1103-7-2 - Definitions and Clarifications

2.1 "Administrative procedure" means the process used by the Division to investigate wage complaints in accordance with C.R.S. § 8-4-111 and C.R.S. §§ 8-13.3-407(4), -410, and -411.

2.2 "Authorized representative" means a person designated by a party to a wage complaint to represent the party during the Division's administrative procedure. To designate an authorized representative, the party must comply with the requirements of Rule 4.3.

2.3 "Average daily earnings," as formerly used in C.R.S. § 8-4-109(3)(b), will be calculated as follows, unless the Division identifies a legitimate reason to use a different method of calculation:

2.3.1 The most recent typical workweek or pay period will generally be used to calculate the average daily earnings. The total gross amount of wages and compensation will be divided by the number of days worked.

2.3.2 If an employee is entitled to and has been paid less than the Colorado minimum wage, and has not earned more than the Colorado minimum wage, then the Colorado minimum wage will be used to calculate average daily earnings.

2.3.3 All compensation paid to employees, including the hourly rate, shift differential, minimum wage tip credit, regularly occurring non-discretionary bonuses, commissions, and overtime may be included in the average daily earnings calculation.

2.4 "Certified copy," as used in C.R.S. § 8-4-113, means a copy of a Division decision issued and signed by the Director of the Division, or his or her designee (including any Division staff designated to issue such decision), certifying that the document is a true and accurate copy of the decision. A certified copy must be requested in writing or may be issued by the Division on its own initiative. A Division decision (issued by investigative or hearing staff) will not be filed in court unless two weeks have passed since the appeal deadline and either (1) no appeal has been filed or (2) if an appeal or other legal challenge was timely filed, the decision was not superseded on appeal nor subject to any order barring the filing or enforcement of a certified copy. A certified copy will not be issued in the event of termination pursuant to C.R.S. § 8-4-111(3).

2.5 "Determination" means a decision issued by investigative staff upon the conclusion of a wage complaint investigation. "Determination" includes: Citation and Notice of Assessment, Determination of Compliance, and Notice of Dismissal, if that Notice of Dismissal is issued after the Division initiated the administrative procedure as described in Rule 4.4.

2.6 "Employee" has the following definitions:

2.6.1 Under the CWA, C.R.S. § 8-4-101(5), an "employee" means any person, including a migratory laborer, performing labor or services for the benefit of an employer. For the purpose of these Rules, relevant factors in determining whether a person is an employee include the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer; except that an individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an "employee."

2.6.2 Under the HFWA, C.R.S. § 8-13.3-402(4), "employee" has the same meaning as in C.R.S. § 8-4-101(5), but does not include an "employee" as defined in 45 U.S.C. § 351(d), who is subject to the federal "Railroad Unemployment Insurance Act,"45 U.S.C. § 351 et seq. An employee's "family member" means

(1) an employee's immediate family member, as defined in C.R.S. § 2-4-401 (3.7);

(2) a child to whom the employee stands in loco parentis or a person who stood in loco parentis to the employee when the employee was a minor; or

(3) a person for whom the employee is responsible for providing or arranging health- or safety-related care. C.R.S. § 8-13.3-402(6).

2.7 "Employer" has the following definitions:

2.7.1 Under C.R.S. § 8-4-101(6), "employer" has the same meaning as in the federal Fair Labor Standards Act at 29 U.S.C. § 203(d), and includes a foreign labor contractor and a migratory field labor contractor or crew leader; except that the provisions of the COMPS Order do not apply to the state or its agencies or entities, counties, cities and counties, municipal corporations, quasi-municipal corporations, school districts, and irrigation, reservoir, or drainage conservation companies or districts organized and existing under the laws of Colorado. "Foreign labor contractor" and "field labor contractor" have the definitions in C.R.S. §§ 8-4-101(7), (8.5).

2.7.2 Under the HFWA, C.R.S. § 8-13.3-402(5), "employer" has the same meaning as in C.R.S. § 8-4-101(6), except that an "employer" also includes the state and its agencies or entities, counties, cities and counties, municipalities, school districts, and any political subdivisions of the state, but does not include the federal government.

2.7.3 A "successor employer" is responsible for an acquired employer's HFWA obligations, including but not limited to accrued, requested, or in-progress leave, and "means an employing unit, whether or not an employing unit at the time of acquisition, that ... acquires all of an organization, a trade, or a business[,] or substantially all of the assets[,] of one or more employers subject to" HFWA. C.R.S. § 8-13.3-402(12). Acquiring "substantially all of the assets" of an employer is defined as in 26 U.S.C. § 368(a)(1)(C) and Rev. Proc. 77-37, § 3.01; acquiring "a trade or a business" is defined as in C.R.S. § 8-76-104(11)(c).

2.7.4 To determine whether an employer meets the 16-employee threshold for HFWA coverage in 2021 pursuant to C.R.S. § 8-13.3-403(1)(b), the rules for counting employees to determine whether an employer is covered under the federal Family and Medical Leave Act apply: the employer must employ the requisite number of employees "for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year"; "[a]ny employee whose name appears on the employer's payroll will be considered employed each working day of the calendar week, and must be counted whether or not any compensation is received for the week"; "[e]mployees on paid or unpaid leave, including [sick or medical] leave, leaves of absence, disciplinary suspension, etc., are counted as long as the employer has a reasonable expectation that the employee will later return to active employment"'; "a corporation is a single employer rather than its separate establishments or divisions"; and employees are counted only if "within ... the United States," including any state, the District of Columbia, or any territory or possession of the United States. 29 CFR §§ 825.104-105.

2.8 A "correct address" for a party, including but not limited to as used in C.R.S. § 8-4-101(15) and these or other applicable Division rules, can include, but is not limited to (unless defined otherwise by statute, rule, or order): a physical or email address the party used, or provided to the Division, in the investigation (unless the party notifies the Division to use an alternate valid address instead); the party's email address; the address on file with the Colorado Secretary of State for the party or their registered agent; or an address actually used, or publicly posted as a current address for mail or deliveries, by the party.

2.9 When considering whether there is "good cause" for an extension of time, including as used in C.R.S. § 8-4-113(1)(b), the Division will determine whether the reason is substantial and reasonable and must take into account all available information and circumstances pertaining to the specific complaint.

2.10 "Post," including as used in C.R.S. § 8-4-107, may include electronic posting in a place readily accessible to all employees.

2.11 "Public health emergency" is defined as in C.R.S. § 8-13.3-402. A public health emergency is "declared" by any initial, amended, extended, restated, or prolonged declaration of an emergency that meets the statutory definition. During a public health emergency, employees have a right to use up to 80 hours of paid sick leave, that the employer must supplement to an employee who lacks enough previously accrued sick leave. Employees can use up to 80 hours of leave for reasons listed in C.R.S. § 8-13.3-405(3) only once during the entirety of a public health emergency even if such public health emergency is amended, extended, restated, or prolonged.

2.12 "Records reflecting the information contained in an employee's itemized pay statement," as used in C.R.S. § 8-4-103 (4.5), may be kept electronically. The records are not required to be copies of the pay statements but must reflect all information contained in the pay statements.

2.13 "Terminated employee," as used in C.R.S. § 8-4-105(1)(e)(I), includes any employee separated from employment, whether the separation occurs by volition of the employer or the employee.

2.14 The Division may enforce the gratuity provisions described in C.R.S. § 8-4-103(6) through the administrative procedure described in C.R.S. § 8-4-111. The legal treatment of "tips," "gratuities," or other monies paid on a similar basis, in any source of law, is identical regardless of the terminology used.

2.15 "'Wages' or 'compensation'" has the same meaning as in C.R.S. § 8-4-101(14). "Paid sick leave" required by HFWA constitutes "wages" under C.R.S. § 8-4-101(14); is covered by the provisions of C.R.S. Title 8, Article 4, and these Rules; is defined as paid time off from work that is provided by an employer for one of the qualifying reasons described in C.R.S. §§ 8-13.3-404 to -406. C.R.S. § 8-13.3-402(8)(a),(b).

2.16 A "written demand," including as used in C.R.S. § 8-4-101(15), can be sent to the employer by electronic means, including but not limited to email and text message. Wages must be owed at the time of sending for the written demand to be considered valid. The penalty provisions in C.R.S. § 8-4-109(3)(b) effective on January 1, 2023, shall apply if the 14-day deadline for payment after the sending of a written demand without penalties passes on or after January 1, 2023, unless a prior written demand was sent more than 14 days before January 1, 2023. Notwithstanding the foregoing, when a Division Notice of Complaint (or other Division-issued document satisfying the requirements of a written demand) is sent where the 14-day deadline for payment is on or after January 1, 2023, the passing of that deadline triggers those penalty provisions, regardless of whether a prior written demand was sent before the Division's.

2.17 Vacation Pay.

2.17.1 C.R.S. § 8-4-101(14)(a)(III), includes in the definition of "'[w]ages' or compensation'": "Vacation pay earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee." "Vacation pay" is pay for leave, regardless of its label, that is usable at the employee's discretion (other than procedural requirements such as notice and approval of particular dates), rather than leave usable only upon occurrence of a qualifying event (for example, a medical need, caretaking requirement, bereavement, or holiday).

2.17.2 The "earned and determinable in accordance with the terms" provision does not allow a forfeiture of any earned (accrued) vacation pay, but does allow agreements on matters such as:

(1) whether there is any vacation pay at all;

(2) the amount of vacation pay per year or other period;

(3) whether vacation pay accrues all at once, proportionally each week, month, or other period; and

(4) whether there is a cap of one year's worth (or more) of vacation pay. Thus, employers may have policies that cap employees at a year's worth of vacation pay, but that do not forfeit any of that year's worth.

For example, an agreement for ten paid vacation days per year:

(a) may provide that employees can accrue more than ten days, by allowing carryover of vacation from year to year;

(b) may cap employees at ten days; but

(c) may not diminish an employee's number of days (other than due to use by the employee).

2.18 "Willful," in Articles within C.R.S., Title 8, that this Division enforces or administers, has the same meaning as under 29 U.S.C § 255(a) and 29 C.F.R. § 578.3(c).

2.19 C.R.S. § 8-4-103(1)(b) describes circumstances under which employers are "subject to the penalties specified in section 8-4-113(1)." Despite use of the word "penalty" in this section, this language does refer to the fine described in C.R.S. § 8-4-113(1) and is payable to the Division.

2.20 A complaint, appeal, or other submission to the Division is considered "filed" with the Division when it is received by the Division via mail, fax, email, online submission, or personal delivery. Any complaint, appeal, or other submission to the Division received after 11:59 p.m. Mountain Time is considered filed the next business day. Any such submission is considered "signed," or to have a "signature," if it has either an ink signature, a scanned signature, an electronically drawn or generated signature, or a typed name entered by the party or their authorized representative in the signature area; by signing in any such fashion, the individual is deemed to have agreed and assented that the document is signed by them.

2.21 For purposes of Rule 8, "Division debtor" means any employer, or any other person or entity, who owes wages, fines, or penalties determined by the Division to be due to any employee(s), the Division, or any other party.

2.22 These Rules are to be read in conjunction with other rules promulgated and enforced by the Division with additional requirements, including but not limited to the Colorado Overtime and Minimum Pay Standards Order ("COMPS Order"), 7 CCR 1103-1, and the Colorado Whistleblower, Anti-Retaliation, Non-Interference, and Notice-Giving Rules ("Colorado WARNING Rules"), 7 CCR 1103-11.

Notes

7 CCR 1103-7-2

47 CR 05, March 10, 2024, effective 4/1/2024