3 Colo. Code Regs. § 708-1-40.2

Current through Register Vol. 47, No. 11, June 10, 2024

Rule 3 CCR 708-1-40.2 - Exceptions

(A) Differential treatment based on age is lawful when age is a Bona Fide Occupational Qualification (BFOQ) that is reasonably necessary for the operation of the particular business. To justify an age-based disqualification, the employer must show that:

(1) the requirement is reasonably necessary to the essence of its business, and

(2) a tailored attempt to accomplish the same thing by assessment of individual capabilities would either be futile or impractical.

(B) The exception for "bona fide seniority systems" or "bona fide employee benefit plans" of § 24-34- 402(4)(b), C.R.S. shall be narrowly construed. A bona fide seniority system must use length of service as the primary criterion, must not give those with longer service lesser rights, and must have been communicated to the affected employee(s). It is unlawful for a seniority system or employee benefit plan to require or permit the involuntary retirement of an employee within the protected age group on account of age except as provided in § 24-34-402(4)(c), C.R.S. Nothing in § 24-34-402(4)(b), C.R.S., prohibits use of a bona fide seniority system or bona fide benefit plan that permits individuals to elect, at their own option, early retirement at a specified age. It is lawful for a plan to require early retirement for reasons other than age.

(C) It is a lawful employment practice to compel the retirement of an employee who is between the ages of 65 and 70 years of age who, for the two-year period immediately before retirement, is employed as a bona fide executive or in a high policy-making position, provided that the following requirements are met:

(1) The "annual retirement benefit" to which covered employees must be entitled is the sum of amounts payable during each one-year period from the date on which such benefits first became receivable. The retirement benefit must equal, in the aggregate, at least $44,000 annually.

(2) For purposes of determining compliance, an "immediate non-forfeitable annual retirement benefit" means that the payment of plan benefits must occur not later than 60 days after the effective date of the retirement unless the employee elects to receive those benefits outside of the 60-day period.

(3) An annual retirement is deemed to be forfeitable if it is subject to provisions which could cause the cessation of payments or reduction of benefits to less than $44,000 in any one- year period such as engaging in litigation against the former employer or obtaining employment with a competitor. As of the effective date of retirement there must be a reasonable expectation that the annual retirement plan will meet its obligations. However, an annual retirement benefit will not be deemed forfeitable merely because it is not guaranteed against the possibility of bankruptcy.

3 CCR 708-1-40.2

37 CR 22, November 25, 2014, effective 12/15/2014

43 CR 12, June 25, 2020, effective 7/15/2020

45 CR 01, January 10, 2022, effective 1/30/2022

46 CR 04, February 25, 2023, effective 3/30/2023

46 CR 23, December 10, 2023, effective 12/30/2023