As anticipated, the Colorado Department of Labor and Employment (CDLE) issued an Interpretive & Formal Opinion (INFO) – “Transparency in Pay and Opportunities for Promotion and Advancement”.  While the INFO is helpful in some respects, CDLE continues to take a hardline on the definition of “promotional opportunity”.

We continue to digest the guidance but the highlights include clarifying that a “promotional opportunity” exists “when an employer has or anticipates 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.”

Further to this point, the INFO states that:

  • A vacancy in a new position exists when an employer:

(1) adds a position; or

(2) gives an existing employee a new position, including by changing their title, and/or materially changing their authority, duties, or opportunities.

  • A vacancy in a new position includes a lateral job change, or a promotion along a fixed, in-line career trajectory, for which a current employee is eligible.

Based on the following CDLE example, it is difficult to imagine an instance not covered by the Rules:

An employer automatically advances every Apprentice 1 to an Apprentice 2 when the employee passes a competency test. An Apprentice 2 has more advanced duties, higher pay, and access to future promotions unavailable to an Apprentice 1. This advancement is a promotion to a new position because the employer is creating an Apprentice 2 position each time it advances an Apprentice 1. However, if the promotion is promised in writing upon hiring in conformity with EPT Rule 4.2.5(B) , it may be exempt from the duty to provide notice of the promotional opportunity to other employees.

The INFO further confirms that while multi-state employers need not include compensation or benefits in notices to Colorado employees for positions outside of Colorado, it must notify Colorado employees of such promotional opportunities.

We will continue to digest the INFO guidance and provide updates soon.

Tags: CDLE, Colorado, Promotion Opportunity
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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.

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