0:00:00,0:00:08 Hello! Welcome to the Labor Standards Overview for HCBS Direct Care Workers, otherwise known as the “Worker’s Rights Training.” 0:00:09,0:00:16 This training is presented by the Division of Labor Standards and Statistics underneath the Colorado Department of Labor and Employment. 0:00:17,0:00:32 For reference, HCBS stands for Home and Community Based Settings. It’s a reference to a specific type of Medicaid waiver that certain Direct Care Workers provide services for. 0:00:33,0:00:37 Note: This is part one of a three part series for this webinar. 0:00:40,0:00:46 Hi! My name is Carrie Chesney. I’m an Outreach Manager for the Division of Labor Standards and Statistics. 0:00:47,0:01:02 For a little background on me, I worked in the Direct Care field for about twelve years doing both case management and working in quality standards for a Community Centered Board. After that, I started working with the Division as a Compliance Investigator and now I work in Outreach. 0:01:03,0:01:11 If you have any questions after you watch this training, please feel free to reach out to me at the email address and my phone number there listed on the screen. 0:01:14,0:01:34 So what are we going to talk about today? We’re going to talk about who we are, as in, what the Division of Labor Standards does and we’re also going to talk about the basics of Wage and Hour law and what information you should know to protect your rights at work. 0:01:35,0:01:47 We will also be talking about your options for recourse in the case that you think that you aren’t getting paid wages owed or that your rights are being violated in some way under Colorado Wage & Hour law. 0:01:51,0:01:56 So, who are we? What do we do? And what are labor laws, and what do they do? 0:01:57,0:02:09 Labor laws protect the rights of workers. There are many kinds of labor laws, but the Division of Labor Standards & Statistics primarily enforce labor laws related to the payment of wages owed to workers. 0:02:10,0:02:42 So that means that we don’t enforce things like OSHA regulations or regulations around what the EEOC would regulate. Each division that enforces labor laws has a very specific scope of authority for enforcing individual labor laws. The Division of Labor Standards and Statistics enforces Wage & Hour laws, which relate primarily to the payment of wages. 0:02:43,0:03:06 So here are a few of the things that we enforce. Unpaid wages, minimum wage standards, overtime rate, impermissible deductions, which are basically amounts taken out of an employee’s paycheck without their authorization, paid sick leave or the Healthy Families and Workplaces Act, and others. 0:03:08,0:03:36 If you have any questions please contact us or see our website. We have a call center number there. Our website is Coloradolaborlaw.gov, but specific for Direct Care Workers we do have a webpage. You can also email our Division at cdle_labor_standards@state.co.us. 0:03:39,0:03:46 So today we’re here to talk about your basic rights under Colorado labor law as a Direct Care Worker. 0:03:51,0:04:05 As we go through the presentation, if you have any additional questions or would like any additional information please see our website where we have associated INFO pages. 0:04:06,0:04:19 INFO pages provide a lot more guidance and information on specific laws. So please see that page at: cdle.colorado.gov/infos. 0:04:22,0:04:28 The first thing we will talk about today is the Direct Care Worker Base Wage Rate: what it is and how it came to be. 0:04:30,0:04:42 So how much is the direct care base wage rate and who gets it? The current direct care base wage rate as of July 2023 is $15.75 an hour. 0:04:43,0:05:09 As you can see here, there’s a pretty long definition for who qualifies as a direct care worker. The main thing you need to know is that a direct care worker is someone who is providing hands on care services and supports to older adults and individuals with disabilities, generally receiving Medicaid waiver services that are long term services. 0:05:10,0:05:34 Those workers who are providing those services should be receiving at least the direct care base wage rate. If you are not sure whether you qualify as a direct care worker please know that you can go ahead and file a claim with the Division and an investigator will determine whether or not you do qualify under the direct care worker base wage rate. 0:05:36,0:05:46 Note also that there are specific waiver and service types that this definition applies to and I will talk about that here in the next slide. 0:05:48,0:06:02 It’s not expected that you as a direct care worker will necessarily know if you fall under any of these categories, however, it’s good to know that it does apply to specific workers who provide services under these service types and waiver types. 0:06:04,0:06:18 Ultimately, if you’re not sure whether or not you’re a direct care worker please go ahead and file a claim with the Division and allow the investigator who takes your claim to determine whether or not you fall under this definition. And, it’s quite a long list. 0:06:24,0:06:36 Now, what do you do if you think that you are owed the direct care base wage rate, but are not receiving that rate? You have a couple of different options. 0:06:37,0:06:51 You can report either to Healthcare Policy and Finance or you can report to the Division of Labor Standards and Statistics. Each has a different process and each of those processes have slightly different outcomes. 0:06:52,0:07:11 So, to report to Healthcare Policy and Finance you will email the Healthcare Policy and Finance compliance team at hcpf_wagecompliance_fcu@state.co.us. 0:07:12,0:07:23 Healthcare Policy and Finance will review the information and if appropriate, they will initiate a review of the employer to ensure compliance and to assist the employer with complying with the law. 0:07:24,0:07:33 Healthcare Policy and Finance may then refer the complaint to other state departments, such as the Division of Labor Standards and Statistics when it’s appropriate. 0:07:39,0:08:00 Now, how do you file a claim with DLSS? We’re going to talk a little bit more in-depth about how to do that later in this presentation, however, for now, know that the process typically involves the employee or worker submitting what is known as a “Demand for Wages” form to the employer before submitting a claim to DLSS. 0:08:01,0:08:24 It doesn’t have to be the formal form. There is a formal form on our website. It can just be a request that the worker submits to their employer, whether that’s in text message form, whether it’s in verbal, a verbal conversation that they have with the employer or anything else, anything written or verbal. 0:08:25,0:08:37 The worker can then submit a claim to DLSS. DLSS will then complete a full investigation leading to possible recouping of wages owed with penalties. 0:08:38,0:09:03 So, the difference between Healthcare Policy and Finance’s process and DLSS’s process is that Healthcare Policy and Finance cannot recoup wages owed, only DLSS can do that. Although actually we’re going to be talking about other ways in which you can recoup wages owed if you do not choose to use the DLSS process. 0:09:10,0:09:29 In this section we are going to talk about the payment of wages basics. This information applies to all workers in Colorado not just direct care workers. Any direct care specific information will be indicated on the slide. 0:09:30,0:09:50 You may know that Colorado has a set minimum wage rate. Currently that minimum wage rate is $13.65 an hour, with it increasing next year to $14.42 an hour. What you may not know is that there are several local minimum wage rates that also apply in certain cities and counties. 0:09:51,0:10:08 For instance, currently Denver has a $17.29 an hour local minimum wage rate. Next year that will increase to $18.29 an hour. You can find all local minimum wages listed on our website at coloradolaborlaw.gov. 0:10:09,0:10:29 Now, in most cases direct care workers should be receiving the direct care worker base rate unless the local minimum wage is higher. So for instance, if you’re a home health CNA working in Denver, you should be receiving $17.29 an hour for all hours worked within Denver. 0:10:30,0:10:39 If you’re a home healthcare CNA working in other places in the state that don’t have a local minimum wage, you should be receiving the direct care base wage rate. 0:10:40,0:10:52 Again, for all current local minimum wages, please check our website. In the top right hand corner of the website you will see a table listing all current local minimum wages. 0:10:57,0:11:13 Now, payment of wages. This section too applies to all workers in Colorado. Payment should occur, specifically by paycheck, direct deposit, paycard, or cash. Other forms of payment are not valid. 0:11:14,0:11:39 And know that your employer must pay you on a schedule at least once a month or on regular paydays as required by the Colorado Wage Act. An employer cannot decide to pay you one week and then not pay you again for six weeks, two months, five months… 0:11:40,0:11:44 Employers must pay you on regular paydays at least once a month. 0:11:45,0:12:08 Now, employers are also required by law to provide itemized pay statements, either with payment or once per month. So they do have to provide you with an itemized list of what specifically you are getting paid, what is being deducted from your pay. 0:12:09,0:12:21 And they are required to hold those records for at least three years. They are also required to allow you to access those records for at least three years. 0:12:23,0:12:44 Final Pay: When you get paid at separation is dependent upon how you separated from employment. If you separated at your employer’s volition, in other words, if you got fired or laid off, your employer must pay you your final pay either immediately or within twenty four hours. 0:12:45,0:12:55 And in most cases, an employer’s payroll company is located offsite and so that employer has then twenty-four hours to notify the payroll company and get you payment. 0:12:56,0:13:07 However, if you left employment of your own volition, as in, you quit or resigned, your employer doesn’t have to pay you until the next regular payday. 0:13:08,0:13:23 In most cases, your employer is going to pay you simply as they would normally. This could also mean you have perhaps, more than one normal payday upcoming, in which case, your employer can follow the normal schedule. 0:13:24,0:13:34 Payment must be made at the work site, the employer’s local office, the employee’s last known mailing address, or by direct deposit or paycard. 0:13:35,0:13:50 Additionally, at separation, all earned, unused vacation pay is due to the employee. However, this is only applicable for employees who are receiving vacation pay in the first place. 0:13:51,0:14:09 Colorado does not require that employers provide vacation pay to employees as a matter of course, however, if an employer is providing vacation pay to an employee, they do have to pay out earned, unused vacation pay at separation to that employee. 0:14:10,0:14:18 Now we’re going to talk a little bit about worker misclassification and the basics of what an employer/employee relationship looks like. 0:14:19,0:14:29 To be clear, worker misclassification is a fairly complicated topic so I’m really boiling it down for you here in a very generalized way. 0:14:30,0:14:58 In most cases, a worker is usually an employee. A worker is not an employee when they are 1) primarily free from the control and direction in the performance of a service, 2) have a contract for the performance of a service, and 3) are customarily engaged in an independent trade, occupation, profession, or business related to the service performed. 0:14:59,0:15:37 So, that definition typically applies to independent contractors. If you think about what independent contractors do, they set their own hours, they buy their own tools, they charge for the services that they provide, and in a lot of cases, the service that they provide is not associated with the typical business of the people that they’re contracted with, so, like in the case of perhaps a janitorial company that’s contracted with a large employer to clean a building, 0:15:38,0:16:12 As an example, you might think of hairdressers. A hairdresser might be an employee, but they might also be an independent contractor. So, a hairdresser might rent their own booth and bring in their own tools and set their own hours. If they’re just renting a booth inside of a salon and they are truly free from the control and direction in the performance of the service, they are then an independent contractor. 0:16:13,0:16:40 However, if a hairstylist has a chair in a salon, but is required to wear a uniform, required to use the tools provided to them, required to work specific hours as outlined by the agency with which they are employed, they are an employee. So just consider that distinction. 0:16:41,0:16:59 Within the direct care workspace, very often you’ll see host home providers as independent contractors and certain other types of jobs as independent contractors. In most cases, if you’re a direct care worker, you’re likely an employee. 0:17:00,0:17:30 The reason this is significant is because DLSS can only adjudicate claims for employees. We cannot adjudicate claims for independent contractors. And in most cases, a lot of the information provided within this training is specific to employees and not independent contractors. 0:17:31,0:17:43 However, keep in mind that the direct care base wage rate does also apply to independent contractors, specifically workers like Host Home Providers, Respite Providers. 0:17:44,0:18:05 Now, another type of misclassification that happens is when an employee is considered an exempt worker vs. a non-exempt worker. In most cases, an employee is usually a non-exempt worker, except when they are a certain worker type. 0:18:06,0:18:26 So there are specific worker types outlined in the Colorado Overtime and Minimum Pay Standards Order. Those types are administrative employee, executives or supervisors, ‘professional employee,’ outside salesperson, owner, and certain other miscellaneous worker types. 0:18:27,0:18:44 In the vast majority of cases, most people are familiar with supervisors as an exempt worker, however a person does not qualify as an exempt worker even if they are a supervisor unless their salary also meets the annual ‘threshold,’ the minimum amount. 0:18:45,0:19:02 In 2023, that threshold is $961.54 weekly, or approximately $50,000 annually, or 2024 threshold: $1,057.69 weekly, or approximately $55,000 annually. 0:19:03,0:19:23 So, supervisors must also make at least that amount in order to be considered an exempt worker. The reason this matters is because, in a lot of cases, much of the information in this training does not apply to exempt workers. 0:19:24,0:19:36 For example, the overtime rate is typically not applied to exempt workers, but would be applied for non-exempt workers. So keep that in mind as we go forward. 0:19:37,0:19:49 This is the end of part one of this three part webinar series. Please see part two for the next section of this webinar series where we will start with “Time Worked Basics.”