An appeals court in Colorado ruled against an in-home health care worker seeking overtime pay, new state rules, however, make overtime pay mandatory. Workers who provide in-home care for clients are exempt from overtime pay even if they are employed by an outside company, a federal appeals court ruled last week. The reason for the denial was that the worker was hired by a third party employer instead a direct hire by the patient or family. The state, however, has likely clarified the companion question under the new Colorado Overtime and Minimum Pay Standards Order or COMPS, which takes effect March 20. Companion workers and domestic employees, regardless of whether they work directly for a family or with an outside company that a family hires, must be paid overtime. Only independent contractors, who work for themselves, are exempt.
Employee classification and laws.
It may be illegal to withhold overtime pay depending on an employee’s work status, classification and the type of business entity. A covered, non-exempt employee who has a normal work schedule of 40 hours per week for instance, should be eligible for time and a half of an hourly wage for the hours worked over that, and the State of Colorado has adopted some changes to this law effective March 16, 2020 addressing a third category in the approved overtime pay language.
On March 28, 2019, the U.S. Department of Labor (Department) announced a proposed rule to amend 29 CFR part 778 to clarify and update regular rate requirements under section 7(e) of the Fair Labor Standards Act (FLSA). The FLSA generally requires overtime pay of at least one and one-half times the regular rate of pay for hours worked in excess of 40 hours per workweek. Regular rate requirements define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.
Not all employers are required by law to pay out additional wages for overtime, although exceptions are rare. The Fair Labor Standards Act requires companies with over $500,000 in annual sales and those that participate in interstate commerce, or business between states, to pay their workers an overtime wage.
There are exceptions to overtime depending on the class of employee such as:
Colorado laws tend to be stricter than federal laws to the benefit of employees. Employers must pay one-and-a-half time if an employee works more than 12 hours in one workday, if they work a 12 hour day regardless of start and end times, or if they work more than 40 hours over one work week whichever yields them the highest payment amount. Overtime pay must be in cash form and not paid as “comp time.” An employment law attorney can explain federal and Colorado state overtime laws.
Time to file a claim.
Keep in mind that the statute of limitations requires claims to be made within 2 years, or 3 years if the violation is willful. The same Federal law remedies for overtime violations are available in Colorado. Employees can recover all unpaid overtime for two or sometimes three years prior to the filing of a lawsuit.
Hire legal counsel.
If you need assistance with a matter involving Colorado’s overtime pay laws, seek the assistance of an an experienced attorney at Anderson Barkley employment law firm.