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

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the…

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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