On September 29, 2020, The Colorado Department of Labor and Employment published proposed Equal Pay Transparency Rules (“EPT Rules”) providing guidance for implementation of the state’s new Equal Pay for Equal Work Law set to go into effect January 1, 2021.  They also published a corresponding Statement of Basis, Purpose, Specific Statutory Authority and Findings.

The proposed rules address two general areas of the new pay law:

  1. Complaint, Investigation and Appeal Procedures

The proposed rules seek to set out the process for investigation procedures and protections and provides in depth detail for the process of complaint filings, service and deadlines, determinations and appeals.  The rule draws primarily from the Wage Protection Act Rules that govern the wage complaint process in Colorado.

  1. Job Posting Requirements

One of the most debated areas of the new law centers around the unique obligation for Colorado employers to provide compensation information and description of benefits on their job postings as well as make opportunities for promotions known to their employees.

The proposed rules provide additional guidance around the how employers can comply with the compensation disclosure requirement by instructing that

“Employers must include the following compensation and benefits information in each posting: (1) the hourly rate or salary compensation (or a range thereof) that the employer is offering for the position, including any bonuses, commissions, or other forms of compensation that are being offered for the job; and (2) a general description of all employment benefits the employer is offering for the position, including health care benefits; retirement benefits; any benefits permitting paid days off, including sick leave, parental leave, and paid time off or vacation benefits; as well as any other benefits that must be reported for federal tax purposes; but not benefits in the form of minor perks.”

The proposed rules go on to explain that

“[a] posted compensation range may extend from the lowest to the highest pay the employer in good faith believes it might pay for the particular job, depending on the circumstances. An employer may ultimately pay more or less than the posted range, if the posted range was the employer’s good-faith and reasonable estimate of the range of possible compensation at the time of the posting.”

With respect to promotional opportunities, the propose rules suggest that to comply with the requirement to make “reasonable efforts” to announce, post or otherwise make known all opportunities for post or otherwise make known all opportunities for promotion to all current employees . . .” the communication

“must be in writing and include at least (A) job title, (B) compensation and benefits per Rule 2.2, and (C) means by which employees may apply for the position.”

The proposed rule includes a description of “reasonable efforts” and explicitly states employers “may not limit notice to those employees it deems qualified for the position, but may state that applications are open to only those with certain qualifications.”

In the last section, the proposed rules provide much needed guidance on application of the notice requirement to positions to be performed outside of Colorado.  In the proposed rules the Department takes the position that for a role to be performed in Colorado “if the employer accepts applicants from outside Colorado, it must notify all of its employees in any state for whom the job would be a promotion” as well as include compensation and benefits on the posting.  The rules also proposes that if a Colorado employer has a job that can be performed anywhere (e.g. remote) or outside of Colorado, but posts the job by electronic means accessible in Colorado it must include compensation and benefits in the postings. The company must also notify its employees for whom the job would be a promotion.  Essentially, if a Colorado employee (or resident) can apply for the position (even if the role is outside of Colorado) the posting must comply with the transparency regulations.

As a reminder, these are proposed rules and subject to revision based on public comment.  As currently scheduled, the rules will be finalized just prior to the law’s January 1 effective date.  We will continue to monitor and report on any developments and the final rules when published.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Laura A. Mitchell Laura A. Mitchell

Laura Mitchell is a principal in the Denver office of Jackson Lewis P.C. and leads the firm’s Workplace Analytics and Preventive Strategies Pay Equity subgroup. She partners with employers to evaluate, develop and implement policies and practices that ensure workplace fairness while mitigating…

Laura Mitchell is a principal in the Denver office of Jackson Lewis P.C. and leads the firm’s Workplace Analytics and Preventive Strategies Pay Equity subgroup. She partners with employers to evaluate, develop and implement policies and practices that ensure workplace fairness while mitigating legal risk. Laura is a guiding force in the firm’s most specialized and technical practice areas where she leverages an analytics-focused approach to partner with her clients in building legally compliant programs around which they can anchor their workplaces achieving productivity and stability.

Laura understands that creating a competitive advantage for employers in today’s workplace involves using a data-driven approach to counsel companies on the development of proactive and equitable non-discriminatory practices in hiring, promotions, separations and pay—and where advancements in technology can create both opportunities for efficiencies and risk that can be measured. Committed to putting her clients’ organizational goals first and foremost while balancing legal risk, Laura views herself as an extension of her clients’ team, responsible for providing proactive guidance and engaging in transparent, ongoing communication. Staying the course with employers across their organizational journey while balancing legal compliance obligations throughout their employees’ lifecycle ensures Laura’s position as a go-to resource.

Laura works with companies across all industries—both new and well-established multi-national organizations of all sizes—to realize the combined vision of legal compliance, increased productivity and economic growth enhanced by a focus on pay equity.  As part of the pay equity journey, she advises employers on the evolving pay transparency landscape, working to align compliant practices with the practical realities of the business world.

Laura partners closely with government contractors to understand, implement and demonstrate compliance with their EEO regulatory and compliance obligations. She also works closely with non-government contractor clients to conduct risk assessments of their programs, policies, and training to align with federal and state anti-discrimination requirements.

Laura is the editor and a principal contributor of the GovCon Employment Exchange blog and presents on pay equity and government contractor obligations. To round out her days, Laura enjoys spending time with her family and friends attending sports events, working out, riding her bike, playing pickleball and taking in Colorado’s incomparable sunsets.