The Colorado Department of Labor and Employment (CDLE) has issued further guidance on the Equal Pay for Equal Work Act. The Act takes effect January 1, 2021, and covers public and private sector employers who employ one person in the state. As we have previously reported, on November 10, 2020, the CDLE adopted the Equal Pay Transparency Rules (EPT Rules) interpreting the Act. More recently, on December 18, 2020, the CDLE issued Interpretive Notice and Formal Opinion #9 to clarify its EPT Rules.
The Notice excludes job postings made in 2020 from the Act’s requirements unless they remain posted after February 1, 2021.
The Act requires employers to post promotional opportunities to Colorado employees on the same day as positions are externally posted and prior to making promotional decisions. The Notice clarifies that employers are not required to post positions externally.
Postings for jobs in Colorado must disclose the compensation and benefits the employer will offer for the position. The Notice says that employers must describe the nature of the benefits and what they provide, not specific details or dollar values. For example, listing that the position comes with “health insurance” is sufficient.
The Notice allows electronic postings to link to compensation and benefits information elsewhere, such as a central webpage listing multiple jobs. However, employers who go this route must continuously assure the links’ functionality and that the information they link to is up-to-date on the compensation and benefits for the specific position.
Jobs to be performed entirely outside of Colorado – even if modest travel to Colorado is required – are excluded from the Act’s requirement to disclose compensation information. However, remote jobs for covered employers are not excluded from this requirement. Likewise, postings made entirely out of state do not need to include compensation information unless they are accessible to Colorado residents.
The EPT Rules defined a promotional opportunity to be “when an employer has or anticipates having a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties, or access to further advancement.” The Notice clarifies that a vacancy exists where a position the employer intends to fill is open or is held by a departing employee, such as when an incumbent employee gives a resignation notice. A vacancy also exists where the employer:
- adds a new position,
- gives an existing employee a new position, including a title change and/or a material change in authority, duties, or opportunities.
A vacancy does not exist where an employer merely changes pay, or adds an externally obtained degree or certification such as “CPA” to an employee’s title. Consequently, a vacancy includes lateral job changes and promotions along a fixed, in-line trajectory for current employees.
Under the Notice, a vacancy is a promotional opportunity so long as the job is superior to another job held by one or more employees of the same employer in compensation, benefits, status, duties, opportunities, or access to further career advancement.
The Notice allows employers to combine multiple promotions into one, as long as the Notice is provided to employees at a time when employees may apply for all positions in that Notice.
An employer’s reasonable efforts to post all promotional opportunities include leaving postings up long enough for employees to reasonably access them. The Notice doesn’t specify what would be a reas0nable amount of time.
Employers may provide a single posting rather than individual postings where the employer continuously – at least once per month – 1) hires for a specific position that would qualify as a promotion for any current employees or 2) automatically promotes employees in an in-line progression upon completing set requirements. The single Notice may be given:
- periodically with enough frequency to give employees time to apply, but at least monthly, or
- statically in a physical or internet posting or an employee handbook that is continuously accessible to employees, that employees are told contains promotional opportunities, which is updated when promotional opportunities change.
We will keep you informed of any further guidance on this new law. Continue to contact us with your questions.