On November 2, 2020, the Colorado Department of Labor and Employments’ Division of Labor Standards and Statistics held a public hearing to solicit comments about Colorado’s proposed Equal Pay Transparency Rules.  The proposed rules will implement Colorado’s New Equal Pay for Equal Work law that goes into effect January 1, 2021.  The hearing focused on the rules concerning pay information in job postings and announcements of promotional opportunities.  The Division is continuing to collect written comments and will publish final rules on or before November 10th.

The comments presented during the hearing were focused on the following primary themes:

  • Providing clarity around the term “promotional opportunity.”  Specifically, that the rules should clarify that such an opportunity should only include competitive promotions and not “in line” or experience-based progressions.
  • The rules regarding required postings are impractical in that they do not contemplate the need for confidential job searches or use of executive search firms.
  • The rules could put Colorado-based companies at a competitive disadvantage as compared to non-Colorado companies, and will require disclosures of proprietary compensation strategies to competitors who may not be under same rules.
  • The rules could lead to national employers shifting work away from Colorado and/or restricting remote work so that employees could work anywhere, but Colorado.
  • The proposed requiring compensation and benefit information on job postings outside of the state and/or for jobs that will be performed outside the state exceed the Department of Labor and Employment’s authority and the rules should be limited to jobs located in Colorado.

There was also a discussion of the potential legal challenges being contemplated by employers, including potential violations of the U.S. Commerce Clause based on conflicting state laws.

The Division has received a lot feedback on these proposed rules (verbal and written).  We will be watching closely for the final rules to be published on or around November 10.

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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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