The Colorado Department of Labor and Employment has issued proposed Equal Pay Transparency (EPT) Rules. The proposed rules seek to clarify Colorado’s Ensure Equal Pay for Equal Work Act. The Act, which goes into effect January 1, 2024, amended Colorado’s pay transparency statute. A public hearing on the proposed rules is scheduled for October 30, 2023. If adopted, the proposed rules also will become effective on January 1, 2024.

The proposed rules attempt to clarify ambiguous provisions of the Act, as summarized below.

Career Development: Under the Act, the obligation for employers to announce, post, or otherwise make known job opportunities does not apply to “career developments.” The Act defines career development as a “change to an employee’s terms of compensation, benefits, full-time or part-time status, duties, or access to further advancement in order to update the employee’s job title or compensate the employee to reflect work performed or contributions already made by the employee.” The proposed rules clarify that such existing work or contributions must be part of the employee’s existing job and are not within a position with a current or anticipated vacancy.

Career Progression: Similarly, career progressions, defined as “regular or automatic movement from one position to another based on time in a specific role or other objective metrics,” are also excepted from the definition of “job opportunity.” For these positions, employers must disclose and make available to all “eligible employees” the requirements for career progression, along with each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. “Eligible employees” are “those in the position that, when the requirements in the notice are satisfied, would move from their position to the other position listed in the notice as a ‘career progression.’”

Application Deadlines: The Act requires that job postings include the date the application is anticipated to close. This has led to confusion about evergreen job postings and how to comply when an application deadline is extended. To answer these questions, the proposed rules provide two exceptions to the deadline requirement. First, if there is no deadline because the employer accepts applications on an ongoing basis, the application must say so, and a deadline need not be included. Second, a deadline may be extended so long as (1) the original deadline was a good-faith expectation or estimate of what the deadline would be and (2) the posting is promptly updated when the deadline is extended.

Acting, Interim, or Temporary (“AINT”) Hires: The proposed rules provide that no immediate job opportunity posting is required to fill a position on an AINT basis for up to nine months where: (1) the position needs immediate hire in an AINT role; (2) the AINT hiring is not expected to be permanent, and if the hire may become permanent, the required job opportunity posting must be made in time for employees to apply for the permanent position; and (3) the position was not held any time in the preceding 12 months by another AINT hire for which there was no job opportunity posting. The proposed rules modified the duration of an AINT role from six to nine months.

Post-Selection Notice to Employees: After a candidate is selected for a job opportunity, the Act requires employers to distribute a post-selection notice to “employees with whom the employer intends the selected candidate to regularly work.” This requirement created confusion in determining the employee population who needs to receive this notice and the method of notice. The proposed rules address both points. Under the proposed rules, the term “work with regularly” means “employees who, as part of their job responsibilities, either (1) collaborate or communicate about their work at least monthly, or (2) have a reporting relationship (i.e., supervisor or supervisee).” Employers may comply by providing notice “to a broader range of, or all, employees.” In addition, employers may comply by providing the post-selection notice of either (1) each individual selection or (2) multiple selections, as long as the notice is provided no later than 30 days after any selection in the notice.

Geographic Limits: The proposed rules establish that the notice requirements for pre-selection, post-selection, and career progression do not apply to employees entirely outside Colorado.

Please contact a Jackson Lewis attorney if you have any questions about these developments.