As anticipated, the Colorado Department of Labor and Employment has released final administrative rules implementing the new Colorado Equal Pay for Equal Work Act.  The final rules reflect comments received in writing and during a live, virtual, public hearing held on November 2, 2020.

Of primary concern to employers were the proposed rules’ job posting requirements for promotional opportunities and compensation disclosure.  The good news is the final rules are dramatically reduced in scope and address many of the concerns received in written comments and during a live, virtual, public hearing held on November 2, 2020.

Of primary concern to employers were the proposed rules job posting requirements for promotional opportunities and compensation disclosure requirement.  Both the scope and the content of the required postings were topics of discussion during the public comment period.  Positively, the final rules provide clarity around what constitutes a “promotional opportunity” and limit the requirement to include compensation information in postings to only those jobs to be performed in, or that are advertised in, Colorado.

Specifically, the final rules:

  • Explain a promotional opportunity which is required to be announced to current employees “exists when an employer has or anticipates a vacancy in an existing or new position . . .“;
  • Clarify that “reasonable efforts” to announce the promotional opportunity are satisfied by posting where employees can access either online or in hard copy and are told where to find the postings or announcements;
  • Provide exceptions to the promotional posting requirement for (1) compelling confidentiality needs, (2) automatic promotion after a specified initial “trial” hiring period, and (3) temporary, acting or interim hires;
  • Clarify that the promotion posting requirements DO NOT apply to employees outside of Colorado; and
  • Clarify that the compensation posting requirements DO NOT apply to jobs to be performed outside of Colorado or postings outside of Colorado.

These rules offer peace of mind to nationwide employers who have been struggling to develop and implement processes and procedures to comply with the requirements of the new law.  However, there are still some ambiguities in the new language that may create questions.  We will keep you updated on developments and interpretations.

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Photo of Laura A. Mitchell Laura A. Mitchell

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with…

As co-leader of the firm’s ESG group, Laura Mitchell partners with her clients to evaluate, set, achieve and monitor their organizational culture and human capital goals. She focuses her practice on data analytics, including pay equity and other employee analytics, working side-by-side with employers to build programs that benefit employees and create a stable, high-functioning workplace. Understanding that an inclusive, values-based culture provides a crucial competitive advantage in the modern workplace, Laura enjoys counseling companies on the development of proactive and equitable pay and diversity practices.

In Laura’s version of the reimagined workplace, attention to human capital issues, especially DEI and pay equity, would be the rule rather than the exception nationwide and she works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize this vision for her clients’ ongoing success. She helps clients understand all issues across the spectrum of their journey, helping to establish regular analyses as well as counseling organizations on implementation and compliance obligations, where applicable. Committed to putting her clients’ organizational goals first and foremost, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication.

Laura also represents companies in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. She personally oversees the development of hundreds of Affirmative Action Plans for clients each year and is intimately involved in the defense of OFCCP audits. Her approach to compliance is one of facilitation and conciliation while simultaneously advocating in the best interests of her clients.