Colorado is Poised to Enact Stronger Enforcement Measures and Job Opportunity Posting Requirements Under the Equal Pay for Equal Work Act
AJ Peters, Of Counsel
On Monday, May 1, 2023, the Colorado House of Representatives passed a third reading of Senate Bill 23-105 (SB-105), with no further amendments. Among other things, the bill[1] modifies and expands current laws regarding job posting and promotional opportunity notification requirements under the Equal Pay for Equal Work Act (the “Act”), and makes mandatory the enforcement processes. If passed, the Director of the Division of Labor Standards and Statistics (the “Director”) within the Department of Labor and Employment (the CDLE) would be required to take certain actions previously only authorized.
Enforcement Mandatory, Rather than “Authorized”
Among notable provisions of the bill is the requirement that the Director investigate complaints and leads concerning wage inequity. The bill requires the Director to mediate the inquiry process, order compliance and relief upon the finding of a violation, and promulgate further rules to enforce the bill. Under the current version of the Act, the Director is “authorized” to create and implement such enforcement measures, but SB 23-105 will compel the Director to do so.
SB 23-105 also doubles the scope of backpay awards under the Act. In the event of a wage inequality violation, SB 23-105 authorizes back pay for a period not to exceed six years, as opposed to three years under the current version of the law.
Further Compliance Requirements for Job Postings and Promotional Opportunities
The bill also addresses job postings and promotional opportunities where an employer is considering more than one candidate. It mandates specific information be provided to other employees about the identity of a candidate selected for a job or promotional opportunity, including the candidate’s name and new job title, unless disclosing such personal information would violate privacy laws.
SB-105 also expands the Act’s notice requirements for jobs with a defined “career progression” (i.e. jobs with in-line promotional opportunities based on time served or other objective considerations), and requires posting of the requirements for career progression, along with compensation, benefits, and job duties.
For employers located outside of Colorado with fewer than fifteen remote workers within Colorado, the posting requirements are more limited. The bill also defers to future rulemaking by the CDLE in the case of temporary, interim, and acting job opportunities.
Effective Date, If Passed, and Opposition from Business and Industry Groups
If enacted, SB-105 calls for the promulgation of rules by the Director on or before July 1, 2024. The bill has faced opposition from business and industry groups, including the Denver Metro Chamber of Commerce, which argues that the bill does nothing to resolve the unintended harms caused by the 2019 version of the Equal Pay for Equal Work Act – including out-of-state employers’ reluctance to hire Colorado employees for remote positions because of the Act’s job posting and promotional opportunity notification requirements.[2]
Campbell Litigation will continue to monitor developments regarding SB 23-105 and other equal pay laws and regulations, and is available to assist employers in navigating the same.
[1]https://legiscan.com/CO/text/SB105/2023.
[2]See https://denverchamber.org/wp-content/uploads/2023/02/SB23-105-Ensure-Equal-Pay-For-Equal-Work.pdf.