Saturday, November 14, 2020
The Colorado Division of Labor and Employment (CDLE) issued its last Equal Pay Transparency Guidelines (EPT Guidelines) on November 10, 2020, with further data on job and promotional postings. The EPT Guidelines go into impact on January 1, 2021.
The EPT Guidelines present readability on the necessities within the state’s new “Equal Pay for Equal Work Act” that Colorado employers (i.e., anybody with not less than one worker in Colorado, together with public employers, political subdivisions, faculties, and people) announce promotional alternatives and embody compensation and profit data on sure job postings. It’s clear CDLE listened to feedback on its proposed rule.
Colorado’s Pay Transparency Necessities
Colorado’s Equal Pay for Equal Work Act requires employers:
[D]isclose in every posting for every job opening the hourly or wage compensation, or a variety of the hourly or wage compensation, and a common description of all the advantages and different compensation to be supplied to the employed applicant.
And:
[M]ake cheap efforts to announce, publish, or in any other case make identified all alternatives for promotion to all present staff on the identical calendar day and prior to creating a promotion choice.
C.R.S. § 8-5-201.
The EPT Guidelines element how employers should implement these obligations. One vital revision from the proposed guidelines is a dramatic discount in geographic scope. The EPT Guidelines present:
(A) the promotion posting necessities don’t apply to staff completely outdoors Colorado; and
(B) the compensation posting necessities don’t apply to both (1) jobs to be carried out completely outdoors Colorado, or (2) postings completely outdoors Colorado.
Compensation, Advantages Data Included in Job Postings
Employers should embody the next compensation and advantages data in every posting:
The hourly price or wage compensation (or a variety thereof) that the employer in good religion believes it might pay for the actual job,
A common description of any bonuses, fee, or different types of compensation which might be being supplied for the function, and
A common description of the opposite advantages which might be being supplied for the function.
For employers that elect to publish a compensation vary, the vary could lengthen from the bottom to the very best pay “the employer in good religion believes it would pay for the actual job, relying on the circumstances.” Accordingly, the vary will be tailor-made to the expectations for that individual opening and needn’t replicate the total potential vary for that function basically. As well as, employers could “in the end pay kind of than the posted vary, if the posted vary was the employer’s good-faith and cheap estimate of the vary of potential compensation on the time of the posting.”
Promotional Alternatives “Introduced”
With respect to the requirement to announce promotional alternatives, the EPT Guidelines outline “promotional alternatives” as these conditions “when an employer has or anticipates a emptiness in an present or new place that may very well be thought-about a promotion for a number of worker(s) when it comes to compensation, advantages, standing, duties, or entry to additional development.”
Thus, non-competitive, in-line, step, or profession promotions based mostly on outlined standards needn’t be introduced as a result of there isn’t any emptiness in an present place or new place to fill. The place an employer has restricted profession development job openings and, thus, considers a number of staff for a restricted variety of job openings on the subsequent degree, nevertheless, the job openings could also be “promotional alternatives” and should require discover.
Exceptions
The EPT Guidelines present the next exceptions to the requirement to supply discover of promotional alternatives to present Colorado staff:
Confidential Job Search. When there may be “a compelling must hold a selected opening confidential as a result of the place continues to be held by an incumbent worker who, for causes aside from avoiding job posting necessities, the employer has not but made conscious they are going to be separated,” employers needn’t present discover of the promotional alternative. If the employer tells any staff of the chance, all staff should be instructed who (1) meet the minimal {qualifications} or (2) have a job “considerably related” to any staff being instructed of the chance. As well as, the worker discover obligation springs again if the necessity for confidentiality ends earlier than the deadline to use for the job;
Probationary Intervals. The discover requirement additionally doesn’t apply to promotions “inside one 12 months of an worker being employed with a written illustration that the employer will robotically take into account the worker for promotion to a selected place inside one 12 months based mostly solely on their very own efficiency and/or employer wants”; and
Short-term Positions. Employers needn’t present discover to all staff of the promotional alternative if the place being crammed is “on a short lived foundation for as much as six months” and “the hiring will not be anticipated to be everlasting.”
Content material of the Discover
The discover should be in writing and should embody:
The job title of the function;
The compensation and advantages data required of all job postings; and
Data on the best way to apply to the function.
Workers Who Should Obtain Discover
The EPT Guidelines clarify that employers should notify all Colorado staff of all promotional alternatives (even when the employer doesn’t consider the worker is certified for the function). The announcement could state that purposes are open solely to these with sure {qualifications}, and employers “could display screen or reject candidates based mostly on such {qualifications}.”
Guidelines in Apply
The EPT Guidelines impose obligations dictated by the situation of the job and the accessibility of the job posting as follows:
1. Job to be carried out partially in Colorado. If an employer with not less than one worker in Colorado has a job to be carried out not less than partially in Colorado and the job posting is accessible from Colorado:
(A) C.R.S. § 8-5-201(1) requires it to inform all its staff in Colorado for whom the job can be a promotion.
(B) C.R.S. § 8-5-201(2) requires it to incorporate compensation and advantages in such job postings.
2. Job to be carried out partially in Colorado. If an employer with a number of staff in Colorado has a job to be carried out not less than partially in Colorado, and the job posting is not accessible from Colorado (e.g., a Cheyenne, Wyoming-based native trucking firm that delivers product to Denver and makes use of solely Wyoming-based onerous copy postings to recruit by means of a Wyoming business driving faculty):
(A) C.R.S. § 8-5-201(1) requires it to inform all its staff in Colorado for whom the job can be a promotion.
(B) C.R.S. § 8-5-201(2) doesn’t require it to incorporate compensation and advantages in such job postings.
3. Distant job. If an employer with not less than one worker in Colorado has a job that may be carried out anyplace (e.g., a distant place that may very well be carried out by a Coloradan as a result of the job has no requirement or choice for the worker to reside in a selected space):
(A) C.R.S. § 8-5-201(1) requires it to inform all its staff in Colorado for whom the job can be a promotion.
(B) C.R.S. § 8-5-201(2) requires it to incorporate compensation and advantages in such job postings.
4. Job outdoors of Colorado. If an employer with not less than one worker in Colorado has a job to be carried out completely outdoors of Colorado:
(A) C.R.S. § 8-5-201(1) requires it to inform all its staff in Colorado for whom the job can be a promotion.
(B) C.R.S. § 8-5-201(2) doesn’t require it to incorporate compensation and advantages in such job posting.
5. Non-Colorado employer. An employer with no present staff in Colorado has no obligations beneath C.R.S. § 8-5-201(1)-(2) till it employs an worker within the state of Colorado.
Jackson Lewis P.C. © 2020Nationwide Legislation Assessment, Quantity X, Quantity 319
