Colorado’s Proposed Equal Pay Transparency Rules Reach Beyond Colorado’s Borders

The Colorado Department of Labor and Employment (CDLE) has issued proposed Equal Pay Transparency Rules (EPT) interpreting the state’s Equal Pay for Equal Work Act taking effect January 1, 2021. Portions of the proposed EPT rules will reach beyond Colorado’s borders for multi-state employers with a Colorado presence.

The Equal Pay for Equal Work Act applies to both public sector and private sector employers who employ one person in the state. The Act requires employers to make reasonable efforts to post all promotional opportunities to current employees on the same day as they are posted externally and prior to making a promotional decision. Employers must disclose in the posting the compensation and benefits being offered for the position.

In Rule 4 of the EPT Rules, the CDLE proposes this further interpretation of the Act’s requirements.

Employers must include the following compensation and benefits information in each posting:

  • The hourly or salary compensation (or range thereof), including any bonuses, commissions, or other forms of compensation, and
  • A general description of the benefits, including health care benefits, retirement benefits, paid time off, including sick leave, parental leave, and PTO or vacation, as well as other benefits that must be reported for federal tax purposes, but not minor perks.

The compensation range must be the employer’s good faith and reasonable estimate of what it believes it might pay for the job at the time of the posting. The CDLE acknowledges that the employer may ultimately pay more or less than the posted range.

Posting must be in writing and include:

  • Job title,
  • Compensation and benefits as described above, and
  • The means by which employees can apply for the position.

The potential for impact beyond Colorado’s borders comes from the following three cases where the CDLE seeks to clarify when the new job posting requirements will apply:

  • Colorado employer with a Colorado job, wherever advertised.
    1. If the employer accepts applicants from outside Colorado, it must notify all of its employees in any state for whom the job would be a promotion.
    2. If the employer posts the job outside Colorado, it must include compensation and benefits in the posting.
  • Colorado employer with a remote job.
    1. If the job can be performed anywhere, the employer must notify all of its Colorado employees for whom the job would be a promotion.
    2. If the employer posts the job in Colorado or by electronic means accessible in Colorado (e.g., on a website), it must include compensation and benefits information in the posting.
  • Colorado employer with a job outside of Colorado.
    1. If the employer accepts applicants from locales at least as distant as Colorado, it must notify all its Colorado employees for whom the job would be a promotion.
    2. If the employer posts the job in Colorado or by electronic means accessible in Colorado, it must include compensation and benefits in the posting.

The CDLE will hold a public hearing on the rule on November 2, 2020, and will take written comments until November 5. The final rule is scheduled to be adopted on November 10. Click here for information on attending and testifying at the public hearing and for the form to submit comments. We will keep our members updated on what is adopted.