CDLE Publishes Proposed Equal Pay Transparency Rules under the Equal Pay for Equal Work Act

Ashley Graves, Associate

The Colorado Department of Labor and Employment (“the CDLE”) issued proposed rules on September 29, 2023, clarifying employer obligations under the Equal Pay for Equal Work Act (“the Act” or “EPEWA”) by defining career development and progression, expanding on exceptions to job postings and deadline requirements, and obligating employers to provide “post-selection” notices to employees.

Background

Colorado’s Equal Pay for Equal Work Act, which requires that employers post available jobs including salary and benefits, was recently amended by Senate Bill 23-105 (“SB 23-105”), effective January 1, 2024. The Amendment discusses, among other things, the Act’s applicability to remote workers, and the impact of the Act on “in-line” promotions.[1]  The CDLE has published proposed rules (the “Rules”) which are open for comment until November 2, 2023.[2]

Proposed Equal Pay Transparency Rules (“the Rules”)

The Rules clarify that employers no longer have a duty to notify employees of positions involving career progression[3] or career development.[4]  However, employers are required to disclose to employees within the career progression the requirements for further advancement, in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement.  

Additionally, no immediate posting is required for acting, interim, or temporary (“AINT”) hires for up to nine months, changed from six months, when: 1) the position necessitates immediate hire into an AINT role; 2) the AINT hiring is not expected to be permanent, and if it becomes permanent, then the posting must be made in time for employees to apply; and 3) the position was not held in the preceding twelve months by any AINT hire for which there was no job opportunity posting.

Another proposed Rule provides that once a candidate has been selected, employers are required to provide to employees with whom the new hire regularly works[5] the name of the candidate selected, the selected candidate’s new job title, and information as to how employees may express interest in similar job opportunities.

Notably, for required job opportunity postings that are not subject to an exception, the Rules require that such postings contain the deadline by which the employee must apply for the job.  If there is no deadline because, for example, the employer accepts applications on an ongoing, rolling basis, then the application must say so.  A deadline may also be extended if the original deadline was a good faith estimate or expectation and the posting is promptly updated when the deadline is extended. 

Employer Considerations

While employer obligations to publish pay and benefit information for job opportunities in Colorado remain far from simple, the Rules, as proposed, do provide at least some clarity and guidance as to which sorts of job opportunities are subject to the Act’s requirements.  Campbell Litigation is available to assist employers in navigating the nuances of the EPEWA and these proposed rules, in addition to other employment matters, as they arise.

[1]https://leg.colorado.gov/sites/default/files/2023a_105_signed.pdf; see also https://www.rockymountainemployersblog.com/blog/2023/6/29/governor-polis-signs-multiple-laws-further-changing-the-colorado-employment-law-landscape.

[2]See https://cdle.colorado.gov/sites/cdle/files/PROPOSED%20Equal%20Pay%20Transparency%20Rules%207%20CCR%201103-13%20%28Redline%29%209.29.23.pdf for a redlined copy of the proposed Rules; see also https://docs.google.com/forms/d/e/1FAIpQLSfsjBRFY2YzK9ToA84SewScLNG5rhW8zaKADx59ccaVvg3deA/viewform

[3]“Career progression” means a regular or automatic movement from one position to another based on time in a specific role or other objective metrics, such as in-line promotions.

[4]“Career development” means a change to an employee’s terms of compensation, benefits, full-time or part-time status, duties or access to further advancement.

[5]The Rules define “work with regularly” as including those existing employees who share a reporting relationship with the candidate (such as the same supervisor) or who are expected to collaborate or communicate regarding their work at least monthly.