Colorado Proposed Equal Pay Transparency Rules

12/22 Update:

As mentioned in the blog below, a public hearing was held to review the proposed Equal Pay Transparency Rules. On November 9^th, Colorado adopted the new rules that you can find here. Many of the proposed rules have been adopted with limited changes for clarity. Below is a list of some of the notable changes.

Definitions:

The definitions of Posting and Notice were updated to the following:

A “posting” and a “notice” of a job opportunity are interchangeable terms in these Rules; any “posting” qualifies as a “notice,” and any “notice” qualifies as a “posting.” A “notification of … [a] job opportunity” (interchangeably termed a “job opportunity notice”) that must include compensation and benefits includes both a notice to current employees required by C.R.S. § 8-5- 201(1) and a posting an employer “externally posts” to others outside the employer (C.R.S. § 8-5- 101(5.5)(a)).

Posting and Notice Requirements:

The Posting and Notice Requirements section was updated to specify that job opportunities, including both those an employer ‘externally posts’ and those to notify current employees, must include information on compensation, benefits, and application processes and employers must make reasonable efforts to notify current employees. The adopted rules also clarified that each posting should have the application deadline, rather than provide “the date the application is anticipated to close.”

The adopted rules also clarified that career developments and career progression are not “job opportunities” and do not require job opportunity notices.

Acting, Interim, or Temporary (AINT) Hires:

Acting, interim, or temporary (“AINT”) Hires updated adopted rules state that no immediate job opportunity positing is required to fill a position on an AINT basis for up to nine months where: (a): 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 (b) the same or a substantially similar position was not held any time in seven or more of the preceding twelve months by another AINT hire for which there was no job opportunity posting, except that if an AINT hire separates after more than seven months, from a position expected to last up to nine months, then a posting is not required for a replacement to finish their term.

Non-disclosure Rights

A new section was added to the proposed rules on non-disclosure rights. An employer shall not disclose a selected candidate’s name and/or prior job title if (1) any applicable law (including an applicable, legally binding statute, rule, or order) requires not disclosing either (or both) of those items; or (2) ) a selected candidate informs the employer (a) in writing, (b) on their own initiative (but employers may inform candidates of non-disclosure rights under this Rule), and (c) voluntarily (i.e., without pressure or coercion), that they believe disclosure of either (or both) of those items would put their health or safety at risk (but need not detail the health or safety risk). The employer is still expected to provide all other required post-selection information, even if under this rule it does not disclose a candidate’s name or prior job title.

Geographic Limits

The geographic limits section was updated to specify that job opportunity notice, post selection notice, and career progression notice requirements do not require notice to employees entirely outside Colorado. Additionally, the compensation and benefits disclosure requirements do not apply to positions for jobs that are to be performed entirely outside Colorado or physically located entirely outside Colorado.

For questions about the adopted rules and how to comply, please reach out to your counsel.

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On September 29^th, The Colorado Department of Labor and Employment released Proposed Equal Pay Transparency Rules to clarify some of the ambiguities in Colorado’s Ensure Equal Pay for Equal Work Act, which was signed by Colorado Governor Jared Polis in June and will go into effect on January 1^st, 2024. A public hearing is scheduled for October 30^th, 2023 to discuss the proposed rules and if adopted, they will also become effective January 1^st, 2024.

The proposed rules provide some clarity by providing expanded definitions and additional information on the job posting requirements. Below is a summary of some of the proposed rules.

Definitions:

The Ensure Equal Pay for Equal Work Act requires covered employers to make reasonable efforts to announce, post, or otherwise make known each job opportunity to all employees on the same calendar day as it posts opportunities externally and prior to the date on which the employer makes the selection decision. The proposed rules clarify that career development or career progression movements are not considered covered job opportunities. Rules to amend the definitions of Career Development and Career Progression are proposed:

Career Development is defined 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 existing work or contributions made by the employee must be part of the employee’s existing job and were not within a position with a current or anticipated vacancy.

Career Progression is defined as “a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.” The proposed rules specify that for positions with career progression, an employer shall disclose and make available to all eligible employees: the requirements for career progression, in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. Eligible employees are defined as” 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 Ensure Equal Pay for Equal Work Act requires that job positions include the date that the application window is anticipated to close. To provide flexibility for employers to post ongoing job opportunities without a deadline, the proposed rules specifies that if there is no deadline because the employer accepts applicants on an ongoing basis, the application must say so and a deadline does not need to be included. Additionally, a deadline may be extended as long as the original deadline was a good faith exception or estimate of what the deadline would be and if the posting is promptly updated when the deadline is extended.

Post Selection Notices:

Within thirty calendar days after a candidate who is selected to fill a job opportunity begins working in the positions, employers must make “reasonable efforts” to notify the employees with whom the employer intends the selected candidate to work with regularly. The proposed rules address questions about the scope and method of this post selection notice. The proposal indicates that “work with regularly” means employees who as part of their job responsibilities either collaborate or communicate about their work at least monthly or have a reporting relationship. Employers may also comply by providing notice to a broader range of, or all, employees. The proposed rules also specify that employers can comply by either providing individual selection notices or can send a notice of all covered hires in the past 30 days.

Acting, Interim, or Temporary (AINT) Hires:

The proposed rules specify that no immediate job opportunity positing is required to fill a position on an AINT basis for up to 9 months (previously 6) where (a) the position necessitates immediate hire into an AINT role, (b) the AINT hiring is not expected to be permanent, and if the hire may become permanent the job opportunity positing must be made in time for employees to apply for the permanent position, and (c) the position was not held anytime in the preceding twelve months by another AINT hire for which there was no job opportunity positing.

Geographic Limits:

The proposed rules specify that notice requirements for preselection, post selection, and career progression do not apply to employees who are entirely outside of Colorado. They also specify that compensation position requirements do not apply to either jobs performed entirely outside of Colorado or postings entirely outside Colorado.