The Colorado Department of Labor and Employment’s Division of Labor Standard and Statistics has adopted COMPS Order # 39 effective January 1, 2024, with several significant changes on wage and hour matters for Colorado employers and employees. Colorado employers are required to post a copy of the current COMPS Order poster.
Updates to the Minimum Wage in Colorado
Effective January 1, 2024, the minimum wage in Colorado is $14.42 per hour for non-tipped employees and $11.40 per hour for tipped employees. In Denver, the minimum wage is $18.29 per hour for non-tipped employees and $15.27 per hour for tipped workers.
Time Worked
The CDLE amended Colorado’s “time worked” rule and “one-minute” standard so that employers must compensate for time worked, except for tasks completed in “less than one minute,” when balanced with the following newly adopted factors under the federal de minimis test:
- The difficulty estimating or recording time;
- The aggregate amount of compensable time; and
- Whether the activity was regularly performed
Under the previous COMPS orders, employers were required to pay employees for pre- and post-shift work-related tasks that took more than one minute. The CDLE explained that the rule has always been to exclude tasks measured in seconds, rather than minutes, for “time worked.”
Tipped Employees
COMPS #39 also provides additional guidance for tip pooling. The prior order (COMPS #38) stated that an employer could require an employee to pool tips on a pre-established basis among other employees who customarily and regularly received tips, but little other guidance was provided. COMPS #39 clarifies that employers may require tipped employees to share tips with other employees who perform significant customer-service functions who are in contact with patrons whether or not customers tip them directly and then lists a number of positions which qualify for tip pooling, including:
- Servers
- Bussers
- Counter personnel who serve customers
- Sushi or teppanyaki chefs similar to counter personnel
- Service bartenders, bartender assistants or barbacks similar to bussers
- Sommeliers who explain, bring, and serve the wine to customers
- Bellhops
In addition, COMPS Order # 39 now provides that employees are considered “tipped employees” when they regularly receive more than $1.64 per hour in tips averaged over any pay period, replacing the previous $30 per month tip standard.
Regular Rate of Pay
COMPS Order # 39 also clarifies, in calculating the overtime rate of pay, the regular rate of pay does not include tips. The CDLE wrote that “a tipped minimum wage employee’s overtime rate is at 1.5 times minimum wage, not 1.5 times the sum of minimum wage plus their tips.”
Baird Quinn Can Help Navigate Complex Wage and Hour Issues
Please feel free to contact the wage and hour lawyers at Baird Quinn for assistance with the often complex wage and hour issues affecting Colorado employers and employees.