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.