When Colorado’s Equal Pay for Equal Work Act (“EPEWA”) went into effect at the beginning of 2021, Colorado became the first state in the U.S. to require employers to disclose compensation (or a range of compensation) in its public job postings. The far-reaching job-posting requirements, intended to combat pay discrimination, have had some unintended consequences. Most notably, the law has made national headlines as some employers have attempted to avoid the compensation-posting requirements by excluding Colorado workers from applying to remote job listings with phrases like “the position may not be performed remotely from Colorado” or “role can be performed anywhere in the United States except Colorado.”
On July 21, the Colorado Department of Labor and Employment (“CDLE”) issued a revised Interpretive Notice & Formal Opinion (“INFO #9”) to clarify its interpretation of the EPEWA (and to stop the trend of job postings excluding Colorado workers). Here are the key takeaways from INFO #9 for employers to consider when posting a job:
Who is required to comply with the EPEWA?
- Any entity that employs at least one person in Colorado.
What compensation information must be included in a job posting to be compliant with the EPEWA?
- The rate of compensation (or a range of compensation). If the posting includes a range, it must include both the lowest and highest pay the employer genuinely believes it might pay for the particular job. Ranges cannot be left open-ended, so an employer cannot post “$60,000 and up” or “up to $60,000.”
- A general description of bonuses, commissions, or other compensation.
- A general description of benefits being offered with the position, such as health care, retirement benefits, paid days off, and tax-reportable benefits. However, “minor perks” like on-site gyms, nap rooms, or free ice cream do not need to be included.
- The compensation information can be included in a linked document or page rather than on the job posting itself as long as the posting clearly explains that the compensation can be found through the link.
Are there any exceptions to the compensation-posting requirement for out-of-state jobs?
- If a covered entity posts a job that will be performed entirely outside Colorado because the job is tied to non-Colorado worksites, the posting does not need to include compensation information. For example, if a restaurant posts a job for a server position in North Dakota, the posting does not need to include compensation information because the job would be performed entirely outside Colorado and is tied to a non-Colorado worksite.
Can an employer hiring for a remote position avoid the compensation-posting requirement by specifying that the job “cannot be performed in Colorado” or otherwise excluding Colorado applicants?
- No. If an employer posts a remote job (i.e., a job that could be performed anywhere), it must include compensation and benefits information. According to INFO #9, “a remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the Act’s transparency requirements.” The CDLE has clarified that a remote job excluding Colorado applicants would not fall into the narrow exception for out-of-state worksites.
Does the EPEWA have any requirements about posting for promotional opportunities?
- Yes. Employers are required to make reasonable efforts to announce promotional opportunities to all Colorado employees prior to making a promotion decision. These announcements must include the job title, instructions for applying, and compensation (unless the position is tied to a non-Colorado worksite).
- The term “promotional opportunity” is interpreted very broadly to include any job that is superior to another job in terms of compensation, benefits, status, duties, opportunities, or access to further career advancement.
- There are a few exceptions to the notice requirement:
- Employers do not have to provide notice of a promotional opportunity if the opportunity is to replace an incumbent employee who is unaware of their impending separation.
- Employers do not have to provide notice of a promotion where consideration for the promotion automatically follows a trial period of less than one year as memorialized in writing (through offer letter, contract, or handbook).
- No notice is required for temporary positions lasting less than six months.
If you have questions about the EPEWA, Fox Rothschild’s Labor & Employment attorneys are available to review job postings, notices, and workplace policies to help ensure compliance with the law.