§ 8-40-202 — Employee

Colorado § 8-40-202

• Jurisdiction: Colorado
• Title 08: Labor and
• Art.: General Provisions

Text

(1) Employee means:

(a) (I) (A) Every person in the service of the state, or of any county, city, town,
or irrigation, drainage, or school district or any other taxing district therein, or of
any public institution or administrative board thereof under any appointment or
contract of hire, express or implied; and every elective official of the state, or of any
county, city, town, or irrigation, drainage, or school district or any other taxing
district therein, or of any public institution or administrative board thereof; and
every member of the military forces of the state of Colorado while engaged in
active service on behalf of the state under orders from competent authority. Police
officers and firefighters who are regularly employed shall be deemed employees
within the meaning of this paragraph (a), as shall also sheriffs and deputy sheriffs,
regularly employed, and all persons called to serve upon any posse in pursuance of
the provisions of section 30-10-516, C.R.S., during the period of their service upon
such posse, and all members of volunteer fire departments, including any person
receiving a retirement pension under section 31-30-1122, C.R.S., who serves as an
active volunteer firefighter of a fire department subsequent to retirement pursuant
to section 31-30-1132, C.R.S., or any person ordered by the chief or a designee of the
chief's at the scene of an emergency or during the period of an emergency to
become a member of that department for the duration of an emergency, and to
perform the duties of a firefighter, and only if the person who is so ordered reports
any claim within ten days of the cessation of the emergency, volunteer rescue
teams or groups, volunteer disaster teams, volunteer ambulance teams or groups,
and volunteer search teams in any county, city, town, municipality, or legally
organized fire protection district or ambulance district in the state of Colorado, and
all members of the civil air patrol, Colorado wing, while said persons are actually
performing duties as volunteer firefighters or as members of such volunteer rescue
teams or groups, volunteer disaster teams, volunteer ambulance teams or groups,
or volunteer search teams or as members of the civil air patrol, Colorado wing, and
while engaged in organized drills, practice, or training necessary or proper for the
performance of such duties. Members of volunteer police departments, volunteer
police reserves, and volunteer police teams or groups in any county, city, town, or
municipality, while actually performing duties as volunteer police officers, may be
deemed employees within the meaning of this paragraph (a) at the option of the
governing body of such county or municipality.

(B) Notwithstanding the provisions of sub-subparagraph (A) of this
subparagraph (I), any elected or appointed official of any county, city, town, or
irrigation, drainage, or school district or taxing district who receives no
compensation for service rendered as such an official, other than reimbursement of
actual expenses, may be deemed not to be an employee within the meaning of this
paragraph (a) at the option of the governing body of such county, city, town, or
district. The option to exclude such officials as employees within the meaning of
this paragraph (a) may be exercised as to any category of officials or as to any
combination of categories of officials. Any such option may be exercised for any
policy year by the filing of a statement with the division not less than forty-five days
before the start of the policy year for which the option is to be exercised. If such a
statement is in effect as to any category of such uncompensated officials, no
official in said category shall be deemed an employee within the meaning of this
paragraph (a). The governing body shall notify each official of such action promptly
at the time such election to exclude is exercised.

(II) The rate of compensation of such persons accidentally injured, or, if
killed, the rate of compensation for their dependents, while serving upon such
posse or as volunteer firefighters or as members of such volunteer police
departments, volunteer police reserves, or volunteer police teams or groups or as
members of such volunteer rescue teams or groups, volunteer disaster teams,
volunteer ambulance teams or groups, or volunteer search teams or as members of
the civil air patrol, Colorado wing, and of every nonsalaried person in the service of
the state, or of any county, city, town, or irrigation, drainage, or school district
therein, or of any public institution or administrative board thereof under any
appointment or contract of hire, express or implied, including nonsalaried elective
officials of the state, and of all members of the military forces of the state of
Colorado shall be at the maximum rate provided by articles 40 to 47 of this title;
except that this subparagraph (II) shall apply to an official described in sub-subparagraph (B) of subparagraph (I) of this paragraph (a) only if no statement
exercising the option to exclude such official as an employee within the meaning of
this paragraph (a) is in effect.

(III) Any person who, as part of a rehabilitation program of the department of
human or social services of any county or city and county, is placed with a private
employer for the purpose of training or learning trades or occupations is deemed
while so engaged to be an employee of such private employer. Any person who
receives a work experience assignment to a position in any department or agency
of any county or municipality, in any school district, in the office of any state agency
or political subdivision thereof, or in any private for-profit or any nonprofit agency
pursuant to the provisions of part 7 of article 2 of title 26 is deemed while so
assigned to be an employee of the respective department, agency, office, political
subdivision, private for-profit or nonprofit agency, or school district to which said
person is assigned or, if so negotiated between the county and the entity to which
the person is assigned, of the county arranging the work experience assignment.
Any person who receives a work experience assignment to a position in any federal
office or agency pursuant to part 7 of article 2 of title 26 is deemed while so
assigned to be an employee of the county arranging the work experience
assignment. The rate of compensation for such persons if accidentally injured or, if
killed, for their dependents is based upon the wages normally paid in the
community in which they reside for the type of work in which they are engaged at
the time of such injury or death; except that, if any such person is a minor,
compensation to such minor for permanent disability, if any, or death benefits to
such minor's dependents must be paid at the maximum rate of compensation
payable under articles 40 to 47 of this title 8 at the time of the determination of
such disability or of such death.

(IV) Except as provided in section 8-40-301 (3) and section 8-40-302 (7)(a),
any person who may at any time be receiving training under any work or job training
or rehabilitation program sponsored by any department, board, commission, or
institution of the state of Colorado or of any county, city and county, city, town,
school district, or private or parochial school or college and who, as part of any such
work or job training or rehabilitation program of any department, board,
commission, or institution of the state of Colorado or of any county, city and county,
city, town, school district, or private or parochial school or college, is placed with
any employer for the purpose of training or learning trades or occupations shall be
deemed while so engaged to be an employee of the respective department, board,
commission, or institution of the state of Colorado or of the county, city and county,
city, town, school district, or private or parochial school or college sponsoring such
training or rehabilitation program unless the following conditions are met, in which
case the placed person shall be deemed an employee of the employer with whom
he or she is placed:

(A) The sponsoring entity and the employer agree that the employer shall
cover the placed person under the employer's workers' compensation insurance;

(B) The employer does in fact insure and keep insured its liability for
workers' compensation as provided in articles 40 to 47 of this title and does in fact
cover the placed person under such insurance; and

(C) With respect to agreements between sponsoring entities and employers
entered into after April 1, 1991, the employer has been provided with notice of the
provisions of this subparagraph (IV) and of subparagraphs (V) and (VI) of this
paragraph (a).

(V) In the event a person placed with an employer is deemed an employee of
the employer pursuant to subparagraph (IV) of this paragraph (a), the sponsoring
entity shall not be subject to any liability for or on account of the death of or
personal injury to the person so placed. In the event such person is deemed an
employee of the sponsoring entity pursuant to the said subparagraph (IV), the
employer shall not be subject to any liability for or on account of the death of or
personal injury to the person and shall not be required to carry workers'
compensation insurance or to pay premiums for workers' compensation insurance
with respect to the person.

(VI) The rate of compensation for a person placed pursuant to subparagraph
(IV) of this paragraph (a) if accidentally injured or, if killed, for dependents of such
person shall be based upon the wages normally paid in the community in which
such person resides or in the community where said work or job training or
rehabilitation program is being conducted for the type of work in which the person
is engaged at the time of such injury or death, as determined by the director; except
that, if any such person is a minor, compensation for such minor for permanent
disability, if any, or death benefits to such minor's dependents shall be paid at the
maximum rate of compensation payable under articles 40 to 47 of this title at the
time of the determination of such disability or death.

(b) Every person in the service of any person, association of persons, firm, or
private corporation, including any public service corporation, personal
representative, assignee, trustee, or receiver, under any contract of hire, express or
implied, including aliens and also including minors, whether lawfully or unlawfully
employed, who for the purpose of articles 40 to 47 of this title are considered the
same and have the same power of contracting with respect to their employment as
adult employees, but not including any persons who are expressly excluded from
articles 40 to 47 of this title or whose employment is but casual and not in the usual
course of the trade, business, profession, or occupation of the employer. The
following persons shall also be deemed employees and entitled to benefits at the
maximum rate provided by said articles, and, in the event of injury or death, their
dependents shall likewise be entitled to such maximum benefits, if and when the
association, team, group, or organization to which they belong has elected to
become subject to articles 40 to 47 of this title and has insured its liability under
said articles: All members of privately organized volunteer fire departments,
volunteer rescue teams or groups, volunteer disaster teams, volunteer ambulance
teams or groups, and volunteer search teams and organizations while performing
their respective duties as members of such privately organized volunteer fire
departments, volunteer rescue teams or groups, volunteer disaster teams,
volunteer ambulance teams or groups, and volunteer search teams and
organizations and while engaged in organized drills, practice, or training necessary
or proper for the performance of their respective duties.

(2) (a) Notwithstanding any other provision of this section, any individual who
performs services for pay for another shall be deemed to be an employee,
irrespective of whether the common-law relationship of master and servant exists,
unless such individual is free from control and direction in the performance of the
service, both under the contract for performance of service and in fact and such
individual is customarily engaged in an independent trade, occupation, profession,
or business related to the service performed. For purposes of this section, the
degree of control exercised by the person for whom the service is performed over
the performance of the service or over the individual performing the service shall
not be considered if such control is exercised pursuant to the requirements of any
state or federal statute or regulation.

(b) (I) To prove that an individual is engaged in an independent trade,
occupation, profession, or business and is free from control and direction in the
performance of the service, the individual and the person for whom services are
performed may show by a preponderance of the evidence that the conditions set
forth in paragraph (a) of this subsection (2) have been satisfied. The parties may
also prove independence through a written document.

(II) To prove independence it must be shown that the person for whom
services are performed does not:

(A) Require the individual to work exclusively for the person for whom
services are performed; except that the individual may choose to work exclusively
for such person for a finite period of time specified in the document;

(B) Establish a quality standard for the individual; except that the person
may provide plans and specifications regarding the work but cannot oversee the
actual work or instruct the individual as to how the work will be performed;

(C) Pay a salary or at an hourly rate instead of at a fixed or contract rate;

(D) Terminate the work of the service provider during the contract period
unless such service provider violates the terms of the contract or fails to produce a
result that meets the specifications of the contract;

(E) Provide more than minimal training for the individual;

(F) Provide tools or benefits to the individual; except that materials and
equipment may be supplied;

(G) Dictate the time of performance; except that a completion schedule and
a range of negotiated and mutually agreeable work hours may be established;

(H) Pay the service provider personally instead of making checks payable to
the trade or business name of such service provider; and

(I) Combine the business operations of the person for whom service is
provided in any way with the business operations of the service provider instead of
maintaining all such operations separately and distinctly.

(III) A document may satisfy the requirements of this paragraph (b) if such
document demonstrates by a preponderance of the evidence the existence of the
factors listed in subparagraph (II) of this paragraph (b) as are appropriate to the
parties' situation. The existence of any one of these factors is not conclusive
evidence that the individual is an employee.

(IV) If the parties use a written document pursuant to this paragraph (b),
such document must be signed by both parties and may be the contract for
performance of service or a separate document. Such document shall create a
rebuttable presumption of an independent contractor relationship between the
parties where such document contains a disclosure, in type which is larger than the
other provisions in the document or in bold-faced or underlined type, that the
independent contractor is not entitled to workers' compensation benefits and that
the independent contractor is obligated to pay federal and state income tax on any
moneys earned pursuant to the contract relationship. All signatures on any such
document must be duly notarized.

(V) If the parties use a written document pursuant to this paragraph (b) and
one of the parties is a professional whose license to practice a particular
occupation under the laws of the state of Colorado requires such professional to
exercise a supervisory function with regard to an entire project such supervisory
role shall not affect such professional's status as part of the independent
contractor relationship.

(c) Nothing in this section shall be construed to conflict with section 8-40-301 or to relieve any obligations imposed pursuant thereto.

(d) Nothing in this section shall be construed to remove the claimant's
burden of proving the existence of an employer-employee relationship for purposes
of receiving benefits pursuant to articles 40 to 47 of this title.

(e) (I) Notwithstanding any other provision of this section, a written
agreement between a nonprofit youth sports organization and a coach, specifying
that the coach is an independent contractor and not an employee of the nonprofit
youth sports organization and otherwise satisfying the requirements of this
paragraph (e), shall be conclusive evidence that the relationship between the
nonprofit youth sports organization and the coach is an independent contractor
relationship rather than an employment relationship and that the nonprofit youth
sports organization is not obligated to secure compensation for the coach in
accordance with the Workers' Compensation Act of Colorado.

(II) The written agreement shall contain a disclosure, in bold-faced,
underlined, or large type, in a conspicuous location, and acknowledged by the
parties by signature, initials, or other means demonstrating that the parties have
read and understand the disclosure, indicating that the coach:

(A) Is an independent contractor and not an employee of the nonprofit youth
sports organization;

(B) Is not entitled to workers' compensation benefits in connection with his
or her contract with the nonprofit youth sports organization; and

(C) Is obligated to pay federal and state income tax on any moneys paid
pursuant to the contract for coaching services and that the nonprofit youth sports
organization will not withhold any amounts from the coach for purposes of
satisfying the coach's income tax liability.

(III) A written agreement between a nonprofit youth sports organization and
a coach in accordance with this paragraph (e) shall not be conclusive evidence of an
independent contractor relationship for purposes of any civil action instituted by a
third party.

(IV) As used in this paragraph (e), nonprofit youth sports organization
means an organization that is exempt from federal taxation under section 501 (c)(3)
of the federal Internal Revenue Code of 1986, as amended, and is primarily
engaged in conducting organized sports programs for persons under twenty-one
years of age.

(3) Notwithstanding any other provision of this section, employee includes
a person who participates in a property tax work-off program established pursuant
to article 3.7 of title 39, C.R.S.

Legislative History

Source: L. 90: Entire article R&RE, p. 470, � 1, effective July 1. L. 91: (1)(a)(IV) amended, p. 1364, � 1, effective April 20; (1)(a)(III) amended, p. 1870, � 23, effective July 1. L. 93: (2) added, p. 356, � 2, effective April 12. L. 94: (1)(a)(III) amended, p. 452, � 2, effective March 29. L. 95: IP(2)(b)(II), (2)(b)(III), and (2)(b)(IV) amended, pp. 343, 344, � 2, effective July 1. L. 97: (1)(a)(I)(A) amended, p. 170, � 3, effective March 28; (1)(a)(III) amended, p. 1239, � 35, effective July 1; (1)(a)(I)(A) and (1)(a)(II) amended, p. 1005, � 2, effective August 6. L. 2010: (2)(e) added, (HB 10-1108), ch. 119, p. 400, � 2, effective April 15; (3) added, (HB 10-1076), ch. 162, p. 566, � 1, effective August 11. L. 2018: (1)(a)(III) amended, (SB 18-092), ch. 38, p. 396, � 2, effective August 8.