Colorado Proposed Equal Pay Transparency Rules

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.