0:00:01,0:00:15 Welcome to part two of our three part webinar series for direct care workers. Now we’re going to talk about time worked basics. What does “time worked” mean and what are the associated possible violations? 0:00:18,0:00:43 So what qualifies as “time worked?” So there is a technical definition within the Colorado Overtime and Minimum Pay Standards Order, and that definition is: “Time worked” means time during which an employee is 1) performing labor or services for the benefit of an employer, 2) including all time he or she is suffered or permitted to work, and 3) whether or not required to do so. 0:00:44,0:01:00 So what that means is any time an employee goes to work and they are working for the benefit of an employer, that time is considered “time worked,” regardless of whether or not that person is required to work. 0:01:01,0:01:20 So for instance, if a person perhaps goes to their job site early, perhaps they start work early, if the work that they’re completing is for the benefit of their employer, the employer must pay that time to them regardless of whether or not the worker was scheduled to work. 0:01:21,0:01:53 We see this often in situations involving overtime premium pay rates. An employer may refuse to pay a worker overtime because that worker was “not on the schedule and not required to work.” However, an employer cannot do that if that employee is performing work that falls under this definition. 0:01:55,0:02:04 So, as a direct care worker, what are some situations that might qualify as time worked, but sometimes go unlawfully unpaid? 0:02:05,0:02:29 So, any task that an employee performs for the benefit of an employer. So for instance, if notes or documentation are required to be completed “off the clock” that would not be allowed. An employer must pay that worker for any work that is done for the benefit of that employer, which includes finishing notes and documentation. 0:02:30,0:02:49 Refusing to pay workers for incomplete work. So let’s say you’ve done the job, but again you haven’t completed your notes or you haven’t completed some piece of the work, employers cannot refuse to pay you for the time that you did work just because the work is perhaps incomplete. 0:02:50,0:03:19 Travel time from worksite to worksite with some caveats: So, in general, travel time includes going from one worksite to another worksite whether you walk there, whether you drive there, that time is encompassed in “time worked” and you should be compensated for time worked if you are going from one worksite to another worksite. 0:03:20,0:03:46 The caveats generally are around when you’re involved in your normal commute, which would be going from your own home to your worksite or going from your worksite back to your own home or to just your regular day. In general, compensable time is really only provided from worksite to worksite. 0:03:47,0:04:14 If you are a home healthcare worker who is going to a client’s home and you’re required to clock in and out at the beginning and end of working with the client, but then you travel directly to another client’s home, and you’re not getting paid for travel time, that may be in violation of the law. So that’s something you could potentially file a claim for. 0:04:15,0:04:24 You typically see this with part time workers who are often scheduled just for the client’s time worked. 0:04:26,0:04:38 Employer specific training that cannot transfer to other places of employment: So, keep in mind that most employer required trainings should be compensated. 0:04:39,0:05:11 The only exception to that is typically when a training is like a job development kind of deal or in which a worker is getting a certification or a license or something that they can take with them from their current job to another job. So for instance, if you’re a licensed CNA the time that you take to get the license, the education that you go through may not have to be compensated by the employer. 0:05:12,0:05:26 However, any employer specific trainings that you have to do, whatever those look like, if you’re doing it for the benefit of the employer, the employer must pay you to complete those trainings. 0:05:27,0:05:44 Failure to pay all time worked or partial time only or “skimming time” off of total hours worked: You sometimes see skimming off of total hours worked for people who work at different worksites and clock in and out between worksites. 0:05:45,0:05:57 That is not allowed by law. Employers can’t pay you for partial time worked. They must pay you for all time worked. 0:06:02,0:06:06 Overtime Basics: Calculations, Specifics, and Exceptions. 0:06:07,0:06:33 So, most people know that the typical overtime rate is one and one half times the regular rate of pay, otherwise known as “time and a half.” So, in Colorado, hours worked beyond either forty hours per week, twelve hours per day, or any twelve consecutive hours are considered overtime. 0:06:34,0:06:46 Now, if you have a worker who is doing multiple of these things in one week, they will get paid whichever is the higher amount of overtime pay. 0:06:47,0:07:18 Let’s say a registered nurse worked forty-two hours in one week, however, during one shift, they worked sixteen hours in a shift. In that case, they would be owed four hours of overtime because they worked four hours beyond twelve hours per day in a shift and that’s higher than the two hours at the end of the forty hour week. 0:07:19,0:07:24 So, again, overtime should be paid with whichever is higher in the workweek. 0:07:25,0:07:40 Employers may not average in hours between two or more weeks. So they can’t look at overtime between two workweeks. They must look at one specific workweek, that must be a scheduled workweek that they outline to their employees. 0:07:41,0:07:54 For your information, a workweek is considered a consecutive period of 168 hours in a week or, in other words, seven days in a week. 0:07:55,0:08:16 So a workweek is calculated on the same day every week and starting at the same time every week. Regardless of whenever an employer chooses to start the workweek, they must keep the workweek consistent with start and end dates and times. 0:08:17,0:08:38 And so, an employer may not average in hours between two or more weeks. So for instance, if you’re working from Wednesday to a following Tuesday, but the formal workweek according to your employer starts on Saturday, those hours may be split between two different workweeks. 0:08:39,0:08:43 Employers may not use “comp time” instead of paying overtime. 0:08:44,0:09:00 The over twelve hours in a workday rule is unique to Colorado. You won’t necessarily find that in other states. Non-exempt workers regardless of their schedule, full time or part time, are owed the overtime rate if they work in excess of the above amounts. 0:09:01,0:09:13 So what we have heard of happening is that a part time worker will pick up extra shifts, so let’s say a home healthcare worker is picking up extra shifts for other people. 0:09:14,0:09:34 Perhaps the place they’re working is short staffed and they end up working in excess of forty hours a week or twelve hours per shift or twelve hours per day. They must be paid the overtime rate regardless of their status as a part time worker. 0:09:35,0:09:39 The employer might say, “Well, they’re a part time worker so we don’t have to pay them overtime,” but that is not accurate. 0:09:41,0:09:46 The determining factor is how many hours that person is working during the workweek. 0:09:47,0:10:10 Now, exempt workers are the exception. We’re not going to talk about that in detail today. Exempt workers typically are paid on a different sort of basis, not an hourly basis, they’re usually paid on like a weekly or monthly basis that’s compensated differently and they very often are not paid overtime. 0:10:11:0:10:23 Now, there are certain specific exceptions or modifications for very specific HCBS Medicaid workers that I’m going to talk about here in a minute. 0:10:24,0:10:42 There is a modified twelve hour overtime exception in which the twelve hour overtime [rate] does not apply, specifically to companions who are designated as direct care workers or professionals who: 0:10:43:0:11:01 Work at least 24 hours providing residential or respite services and who are employed by service providers and agencies that receive at least 75% of their total revenue from Medicaid or other governmental sources, and who provide services within the Medicaid HCBS service waivers. 0:11:02,0:11:15 So keep in mind if you’re not sure whether or no you are a direct care worker who qualifies under this, it is fine to go ahead and submit a claim to our Division and our investigators will determine that for you. 0:11:16,0:11:32 Note that this particular definition typically applies to workers like Host Home Providers or Respite Providers that are going to be exempt from receiving twelve hour overtime anyway because they are independent contractors. 0:11:34,0:11:35 Break Time Basics 0:11:36,0:11:51 So, there are specific rules around rest and meal breaks and there is a specific exception for very specific HCBS direct care workers, and I’ll go over that in a minute. 0:11:52,0:12:07 But, for almost all other types of workers, for non-exempt hourly workers, they must receive a ten minute rest period that is paid for every four hours of work completed. 0:12:08,0:12:36 Rest periods are payable if not authorized and permitted by your employer. So what does that mean? Let’s say I’m a direct care worker who is working in a facility like an assisted living facility or a nursing home and we’re really short staffed that day, to the point that our employer says we have to work through our break times. 0:12:37,0:12:52 If you are being required by your employer to work through your break times, you can file a claim with the Division of Labor Standards and Statistics and potentially get compensation for that time that you were not allowed to take your breaks. 0:12:55,0:13:16 Now, there is also a rule for one 30-minute minimum meal period that goes unpaid when the shift exceeds five hours. So if you’re working shifts that exceed five hours you should be getting one 30-minute minimum meal period that goes unpaid. 0:13:17,0:13:22 And during that time you should not be required to be on-site, you should be required to use that time however you need. 0:13:23,0:13:48 There are exceptions to that in which the employer can ask you to work through your lunch period, however, it should not be a routine occurrence and if your employer is asking you to work that period, they must pay you for the time worked and they must allow you to eat a meal onsite. That’s what the law says. 0:13:50,0:13:52 Now, the specific exception… 0:13:53,0:14:18 The break time modification for some HCBS Workers. So the modification for direct care employees whose employer is receiving at least 75% of its total gross revenue from HCBS waiver services and is providing services to any service recipient that requires continuous supervision and their rest period would interfere with ensuring the recipient’s health, safety, or welfare. 0:14:19,0:14:53 So a good example of this might be, let’s say, a day program worker who is taking individuals with developmental disabilities out into the community. If they’re the only person, and one or more of their clients requires direct supervision, that is 24/7 line of sight supervision, their employer may ask them to take a modified break time. 0:14:54,0:15:11 And so, the modified break time must be a rest period that averages over the work day at least ten minutes per four hours worked and it must have at least 5 minutes of rest in every 4 hours worked. 0:15:12,0:15:24 So you’re still getting the ten minute break, however, it’s averaged over the workday, per four hours worked and you must have at least five minutes of rest every four hours worked. 0:15:25,0:15:42 So, that is the modified rest period requirement for those workers who are providing line of sight supervision to clients who perhaps had no other alternative for supervision. 0:15:46,0:15:51 Now we’re going to talk about deductions, when employers can or cannot deduct from wages. 0:15:53,0:16:04 Deductions: A deduction is when an employer withholds a portion of your wages. An employer cannot deduct from earned wages unless the deduction is: 0:16:05,0:16:13 Mandated by law: Examples of this would include wage garnishment or withholding for taxes. 0:16:14,0:16:40 Pursuant to an enforceable written agreement: In cases where you may want to ask for a wage advance or a loan from your employer, it must be pursuant to an enforceable written agreement. What that means is, is that there must be a written agreement with your employer that you signed before the advance or loan occurs. 0:16:41,0:17:00 For amount of theft by employee if a police report is filed: This is a pretty rare circumstance, but in the case that the employer suspects that an employee has engaged in theft and they have filed a police report, that employer may deduct for the amount of the theft. 0:17:01,0:17:16 Authorized by the employee: This typically covers things like health insurance, 401Ks, etc. You will still need a written agreement in place with your employer in order to engage in these types of deductions, but they’re fairly common. 0:17:17,0:17:38 For the amount of money or the value of property that a separated employee failed to properly pay for or return to the employer (with proper notice): This typically covers property that was issued to an employee during the course of employment that the employee has not returned at separation. 0:17:39,0:17:48 Examples might include: cell phones or laptops that were issued to an employee, or perhaps keys to a business. 0:17:49,0:18:10 There are many other things that could be issued to an employee during the course of employment, but if the employee is supposed to return that piece of property to the employer and doesn’t do so, the employer may choose to deduct for the value of the property that was not returned to the employer. 0:18:11,0:18:24 But, they may only deduct for the value of property from the final pay if they provide that employee with proper notice that they are going to deduct for the value of the property owed. 0:18:27,0:18:34 Now, here are a few things that employers do often deduct for, but they can’t actually, by law, deduct for. 0:18:35,0:18:56 They can’t deduct for employee performance. So, your employer can’t come to you and say, well, I don’t think you did a good enough job, so I’m not going to pay you [for time already worked] or I’m going to take money out of your next paycheck because you didn’t do x, y, and z. An employer can’t do that by law. 0:18:57,0:19:15 An employer can’t deduct for property damage. So let’s say you damaged your work cell phone. You dropped it on the ground and it broke. Your employer can’t deduct from your wages for that damage. 0:19:16,0:19:41 An employer can’t deduct for your failure to turn in notes or time sheets to your employer. We have found several instances in which home care employers have tried to deduct retroactively from employees’ wages when they did not turn in their client notes or their time sheets. They are not allowed to do that by law. 0:19:44,0:19:48 So… And obviously there are other examples of this, but these are some pretty common ones that we see. 0:19:50,0:20:00 Paid Sick Leave, otherwise known as the Healthy Families and Workplaces Act. So what are the amounts of leave and what are the conditions of leave use? 0:20:01,0:20:19 So, all workers in the state of Colorado should accrue one hour of paid leave per thirty hours worked up to forty-eight hours per year. And this kicks in immediately after you start working for an employer, on the first day of employment. 0:20:20,0:20:30 That unused, accrued leave can rollover to the next year, but note that employers are not required to provide more than forty-eight hours per year, even with rollover. 0:20:31,0:20:43 So let’s say, you used all of your time, all of your sick time, except for eight hours that you have in December. 0:20:44,0:21:09 You can roll that eight hours from December over to January of the next year, however that eight hours is still going to count towards the overall forty-eight hour total and you won’t get an additional forty-eight hours, you’ll then only, the employer will then only be required to pay you [for] the forty hours because you already had eight. 0:21:10,0:21:20 Employers must provide the same amount or more paid sick leave for all qualifying conditions outlined in the law. We’ll talk about those conditions here in a minute. 0:21:21,0:21:34 Employers may provide more than forty-eight hours a year if they choose to. So, employers aren’t required to provide more paid sick leave than forty-eight hours per year by law. That’s the minimum. 0:21:32,0:21:39 However some employers may choose to provide more than that to you. 0:21:40,0:21:50 So, here are some conditions or rather, required conditions, for employers to provide paid sick leave to employees. 0:21:51,0:22:30 A mental or physical illness, injury or health condition that prevents work. Obtaining preventive medical care, or a medical diagnosis, care, or treatment, of any mental or physical illness, injury, or health condition. Being a victim of domestic abuse, sexual assault, or criminal harassment who needs leave for medical attention, mental health care or other counseling, victim services (including legal), or relocation; or; Care for a family member who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2) or (3). 0:22:31,0:22:45 So, on this page there is pretty much typically what you would think of as health care for yourself or your family members. Preventative care, surgery, mental health care, all of that is encompassed within paid sick leave. 0:22:46,0:23:04 However, there’s also this additional aspect of being a victim of domestic abuse, or sexual assault or criminal harassment where you can take that time to get medical attention, legal aid, etc. and then also again, care for a family member. 0:23:05,0:23:21 Here are some additional uses of paid sick leave that employers must provide paid sick leave for, that have been added on since the introduction of this Act. They are perhaps maybe not the most intuitive to use for paid sick leave. 0:23:22,0:23:48 So, in a Public Health Emergency, otherwise known as (PHE), a public official has closed the employee’s workplace, or the school or place of care for an employee’s child. An employee can use paid sick leave to take time off to take care of a child or if your workplace has been closed for a public health emergency, you can take paid sick leave for that. 0:23:49,0:24:15 Grieving, funeral/memorial attendance, or financial/legal needs after a death of a family member. So, that’s typically… Some employers have a separate category called bereavement leave, but you can also use accrued sick leave for the same purposes, for instance, if your employer doesn’t provide bereavement leave. 0:024:16,0:24:28 You can also use paid sick leave for inclement weather, power/heat or water loss, or other unexpected event, in which you must evacuate your residence or care for a family member whose school or place of care was closed. 0:24:29,0:24:45 So, just know this one was included within the legislation after the Marshall fire for people to be able to use it and in the case of an unexpected event or inclement weather, so you can use paid sick leave for that. 0:24:48,0:24:59 This concludes part two of our three part webinar series for direct care workers. Please see part three for the final installment of our webinar series for direct care workers.