August 17, 2021

New Guidance on the Colorado Equal Pay for Equal Work Act

The Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics recently issued revised guidance on the Colorado Equal Pay for Equal Work Act (CEPEWA) and the accompanying Equal Pay Transparency (EPT) Rules. The updated guidance, revised Interpretive Notice & Formal Opinion (INFO) #9 (Revised INFO #9), includes revisions and information regarding notice and posting requirements for out-of-state jobs, disclosure obligations as to “Help Wanted” signs, and noncompliant use of open-ended salary ranges and phrases in job postings.

Out-of-State Jobs

Revised INFO #9 states that covered job postings under the CEPEWA include “any posting by a covered employer for either (1) work tied to Colorado locations or (2) remote work performable anywhere, but not (3) work performable only at non-Colorado worksites.” Revised INFO #9 further notes that the “out-of-state exception therefore applies to only jobs tied to non-Colorado worksites (e.g. waitstaff at restaurant locations in other states), but not to remote work performable in Colorado or elsewhere.”

In an apparent response to employers who have excluded Colorado residents from their applicant pools since the CEPEWA took effect on January 1, 2021, Revised INFO #9 also provides: “Thus, 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 Act expressly covers all jobs, so a Colorado-covered employer’s posting of work performable anywhere is not within the narrow implied exception for out-of-state worksites to which Colorado law is arguably inapplicable.”

The Director of the Division of Labor Standards and Statistics recently sent a letter to employers “with postings for remote jobs that lack pay disclosure as required by Colorado law” addressing the requirement to disclose the compensation to be offered in postings for all jobs, including remote jobs, under the CEPEWA.

“Help Wanted” Signs

The CEPEWA requires covered employers to disclose compensation and benefits in each posting for each job. Revised INFO #9 clarifies that a “posting” refers to “any written or printed communication (whether electronic or hard copy) that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions.” However, it does not refer to a “Help Wanted” sign or a “similar communication indicating only generally, without reference to any particular positions, that an employer is accepting applications or hiring.”

Compensation and Benefits Disclosures

Revised INFO #9 continues to require covered employers to disclose, for each job posting: “(1) the rate of compensation (or a range thereof), including salary and hourly, piece or day rate compensation; (2) a general description of any bonuses, commissions, or other compensation; and (3) a general description of all benefits the employer is offering for the position.”

However, where an employer posts a range, Revised INFO #9 now specifies that the range cannot be open-ended as to either minimum or maximum amounts of compensation, and states: “A range’s bottom and top cannot be left unclear with open-ended phrases such as ‘$30,000 and up’ (with no top of the range), or ‘up to $60,000’ (with no bottom of the range).”

The updated opinion further addresses how employers can describe benefits in job postings, noting that employers “cannot use an open-ended phrase such as ‘etc.’ or ‘and more,’ rather than provide the required ‘general description of all of the benefits’” under the CEPEWA.

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