The Colorado Department of Labor and Employment has issued proposed Equal Pay Transparency (EPT) Rules. The proposed rules seek to clarify Colorado’s Ensure Equal Pay for Equal Work Act. The Act, which goes into effect January 1, 2024, amended Colorado’s pay transparency statute. A public hearing on the proposed rules is scheduled for October 30, 2023. If adopted, the proposed rules also will become effective on January 1, 2024.

The proposed rules attempt to clarify ambiguous provisions of the Act, as summarized below.

Career Development: Under the Act, the obligation for employers to announce, post, or otherwise make known job opportunities does not apply to “career developments.” The Act defines career development as a “change to an employee’s terms of compensation, benefits, full-time or part-time status, duties, or access to further advancement in order to update the employee’s job title or compensate the employee to reflect work performed or contributions already made by the employee.” The proposed rules clarify that such existing work or contributions must be part of the employee’s existing job and are not within a position with a current or anticipated vacancy.

Career Progression: Similarly, career progressions, defined as “regular or automatic movement from one position to another based on time in a specific role or other objective metrics,” are also excepted from the definition of “job opportunity.” For these positions, employers must disclose and make available to all “eligible employees” the requirements for career progression, along with each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. “Eligible employees” are “those in the position that, when the requirements in the notice are satisfied, would move from their position to the other position listed in the notice as a ‘career progression.’”

Application Deadlines: The Act requires that job postings include the date the application is anticipated to close. This has led to confusion about evergreen job postings and how to comply when an application deadline is extended. To answer these questions, the proposed rules provide two exceptions to the deadline requirement. First, if there is no deadline because the employer accepts applications on an ongoing basis, the application must say so, and a deadline need not be included. Second, a deadline may be extended so long as (1) the original deadline was a good-faith expectation or estimate of what the deadline would be and (2) the posting is promptly updated when the deadline is extended.

Acting, Interim, or Temporary (“AINT”) Hires: The proposed rules provide that no immediate job opportunity posting is required to fill a position on an AINT basis for up to nine months where: (1) the position needs immediate hire in an AINT role; (2) the AINT hiring is not expected to be permanent, and if the hire may become permanent, the required job opportunity posting must be made in time for employees to apply for the permanent position; and (3) the position was not held any time in the preceding 12 months by another AINT hire for which there was no job opportunity posting. The proposed rules modified the duration of an AINT role from six to nine months.

Post-Selection Notice to Employees: After a candidate is selected for a job opportunity, the Act requires employers to distribute a post-selection notice to “employees with whom the employer intends the selected candidate to regularly work.” This requirement created confusion in determining the employee population who needs to receive this notice and the method of notice. The proposed rules address both points. Under the proposed rules, the term “work with regularly” means “employees who, as part of their job responsibilities, either (1) collaborate or communicate about their work at least monthly, or (2) have a reporting relationship (i.e., supervisor or supervisee).” Employers may comply by providing notice “to a broader range of, or all, employees.” In addition, employers may comply by providing the post-selection notice of either (1) each individual selection or (2) multiple selections, as long as the notice is provided no later than 30 days after any selection in the notice.

Geographic Limits: The proposed rules establish that the notice requirements for pre-selection, post-selection, and career progression do not apply to employees entirely outside Colorado.

Please contact a Jackson Lewis attorney if you have any questions about these developments.

Pay transparency obligations are in effect in New York State, and the state Department of Labor has issued employer guidance and proposed regulations. As of September 17, 2023, covered employers must include in any advertisement for a job, promotion, or transfer opportunity the minimum and maximum annual salary or hourly rate that the employer believes, in good faith, they are willing to pay the successful applicant at the time of the posting. Read more.

Employers are reminded that the New York State Pay Transparency Law goes into effect Sept. 17, 2023. Covered employers in New York State will have new pay transparency obligations related to job advertisements. Covered employers must include in any advertisement for a job, promotion, or transfer opportunity the minimum and maximum annual salary or hourly range. Read more.

Illinois Governor J.B. Pritzker signed a new law on August 11, 2023, that will amend the Illinois Equal Pay Act (IEPA) and mandate pay transparency in job postings for most Illinois employers. The law will go into effect on January 1, 2025, and, along with other recent amendments to the IEPA, will have a significant impact on how employers operate in Illinois. The amendments make it unlawful for an employer with at least 15 employees to fail to include the pay scale and benefits for a specific job in a job posting in Illinois. Read more.

As an update to our previous report on Colorado’s new Ensure Equal Pay for Equal Work Act, on July 28, 2023, the Colorado Department of Labor and Employment (CDLE) issued a revised Interpretive Notice and Formal Opinion (INFO) #9 to establish a timeline for the proposed rulemaking process. According to INFO #9, proposed rules will be published by late September 2023. Input from Coloradans will be invited via participation in public meetings and submission of written comments. Final rules are expected to be issued by late fall 2023. After final rules are promulgated, the CDLE will then issue an updated INFO #9 covering the 2024 Amendments “in detail.”

Governor Josh Green has signed the newest pay transparency bill into law for the state of Hawaii. SB 1057, which goes into effect on January 1, 2024, will require Hawaii employers with at least 50 employees to disclose an hourly rate or salary range that reasonably reflects the actual expected compensation on job listings. The law does not require disclosure of other components of pay (such as benefits) as other state laws require.

The law excludes internal transfers or promotions within a current employer, as well as public employee positions for which salary, benefits, or other compensation are determined pursuant to collective bargaining. The law does not define expected compensation.

The law does not specify whether the 50-employee threshold refers to nationally or within the state. Generally, the pay transparency laws that are already in effect in many states across the country, including California, Colorado, and soon, New York State, apply to employers with as few as one employee within the state and as many as 15 employees. Here, Hawaii appears to be taking a different approach.

Employers doing PERM cases should be prepared to add Hawaii to the list of states with similar requirements. Click here for additional guidance on PERM compliance.

These laws are moving quickly — and are varied. Employers should consider how to deal with this complex patchwork of salary transparency laws. Some may prefer a single, national approach geared to the most rigorous of the laws. Others may choose to include specific disclosures tailored to each jurisdiction. Whatever your preference, employers should consult with counsel to understand the legal risks and practical complications that their desired approach to these pay transparency laws may create. Jackson Lewis attorneys are available to assist employers in adopting the strategy that best meets their needs.

The Colorado legislature has passed the Ensure Equal Pay for Equal Work Act, amending the Equal Pay for Equal Work Act (EPEW) to clarify and enhance an employer’s obligations relating to announcement of a promotional opportunity (which the Act refers to as a “job opportunity”). The Act was sent to Governor Jared Polis and he is expected to sign it into law. The effective date of the new law is January 1, 2024. Read more.

The City of Columbus joins Toledo and Cincinnati as the latest Ohio city to prohibit employers from asking prospective employees about past compensation. Effective March 1, 2024, employers operating in Columbus may not ask about a prospective employee’s wage or salary history. Read more.

In 2022, the California legislature passed Senate Bill (SB) 1162, which expanded the state’s existing pay data reporting requirements for “payroll employees” to include a new pay data report for employers with 100 or more “labor contractor employees.” Under SB 1162, the pay data reporting deadline was moved to May. This year these reports are due May 10th. But—according to a new FAQ from the California Civil Rights Department—beginning April 18, employers may seek “enforcement deferral” on their “labor contractor employee reports.” This delayed enforcement may come as a pleasant surprise to employers still grappling with the expanded scope of the labor contractor reporting. Read more.

New York Governor Kathy Hochul has signed an amendment to the New York State Pay Transparency Law that modifies the applicability of the law, lessens an employer’s recordkeeping requirements, and clarifies what constitutes an “advertisement.” The September 17, 2023, effective date remains unchanged, as does the requirement to include the job description in an advertisement, if one exists. Enactment of the New York law followed other states and cities, like California, Washington, and New York City. Read more.