Colorado Pay Transparency: More Guidance

Tuesday, December 22, 2020

Colorado’s Equal Pay for Equal Work Act goes into impact on January 1, 2021, and applies to all entities with no less than one worker in Colorado, together with public our bodies, faculties, and personal people. Starting January, employers in Colorado should (1) present formal discover to Colorado workers of “promotional alternatives,” which incorporates nearly each job motion, and (2) disclose pay charges or ranges in job postings for jobs that will probably be (or may very well be) labored in Colorado (together with distant or “work wherever” openings). For a lot of corporations, this implies creating or revamping practices and procedures for making promotional selections and processing inside place modifications.

The Colorado Division of Labor and Employment’s (CDLE) Interpretive Discover & Formal Opinion #9 (INFO #9), issued on December 18, clarifies CDLE’s interpretation of the Equal Pay Transparency Guidelines (EPT Guidelines). The EPT Guidelines, together with a Assertion of Foundation, Objective, Particular Statutory Authority, and Findings, have been issued on November 10, 2020. A few of these new necessities have been imprecise, whereas others have been doubtlessly contradictory. The most recent INFO might cement Colorado as essentially the most aggressive state within the nation on pay transparency.

The EPT Guidelines, the Assertion of Foundation, and INFO #9 mandates the next for employers:

1. Requirement to Submit Promotional Alternatives. An employer should make cheap efforts to announce, publish, or in any other case make identified all alternatives for promotion to all present workers on the identical calendar day and prior to creating a promotion choice. C.R.S. § 8-5-201.

a. When required: A “promotional alternative” exists when an employer has or anticipates a emptiness in an current or new place that may very well be thought-about a promotion for a number of worker(s) by way of compensation, advantages, standing, duties, or entry to additional development. EPT Rule 4.2.1.

i. What’s a “emptiness”? With some nuances, a emptiness exists when an employer (1) backfills an current place, (2) provides a brand new place, or (3) offers an current worker a brand new place, together with by altering their title or materially altering their authority, duties, or alternatives. Accordingly, non-competitive, in-line profession developments qualify as “promotional alternatives,” as a result of the corporate creates new positions, or vacancies, for the staff who’re advancing, and thus Colorado workers should be offered discover of the chance. INFO #9, p. 2.

ii. What’s a “promotional alternative”? A emptiness is a promotional alternative as long as the job is superior to a different job held by no less than one worker of the identical employer by way of compensation, advantages, standing, duties, alternatives, or entry to additional profession development. INFO #9, p. 3.

b. Procedural necessities of discover: Discover of a promotional alternative should:

i. Be in writing. EPT Rule 4.2.2.

ii. Be delivered in a technique that reaches all workers. EPT Rule 4.2.3.

iii. Go to all worker for whom it might be a promotion on the identical calendar day — not solely workers the employer believes to be certified. EPT Rule 4.2.4.

iv. Be made sufficiently prematurely of the choice choice might apply — and for a fairly length in order that these workers could also be thought-about. INFO #9, p. 4.

c. Substantive necessities of discover: Discover of a promotional alternative should:

i. Embrace the job title. EPT Rule 4.2.2.

ii. Meet the job posting necessities (see beneath). EPT Rule 4.2.2.

iii. Present the means by which workers should apply for the place. EPT Rule 4.2.2.

d. Exceptions.

i. Confidentiality. A promotional alternative needn’t be posted to all workers if the employer has a compelling must preserve a selected opening confidential as a result of the place continues to be held by an incumbent worker who, for causes apart from avoiding job posting necessities, the employer has not but made conscious they are going to be separated. However further obligations exist if any worker is instructed of the chance. EPT Rule 4.2.5(A).

ii. Computerized promotion after trial interval. No promotion posting to different workers is required for a promotion inside one yr of an worker being employed with a written illustration (whether or not in a suggestion letter, an settlement, or a coverage the employer publishes to workers) that the employer will robotically contemplate the worker for promotion to a particular place inside one yr primarily based solely on their very own efficiency or employer wants. EPT Rule 4.2.5(B).

iii. Non permanent, performing, or interim hires. No speedy promotion posting is required to fill a place on a short lived foundation for as much as six months the place the hiring just isn’t anticipated to be everlasting, e.g., an performing or interim place. However a transition to a extra everlasting function would qualify as a promotional alternative and see of that chance should be offered. EPT Rule 4.2.5(C).

iv. Steady promotional alternatives. “The place an employer constantly — no less than as soon as per 30 days — both (1) hires for a particular place that may qualify as a promotional alternative for any present workers, or (2) robotically promotes workers in an in-line job development upon finishing set necessities (e.g., a certification or variety of service hours): Such an employer might present a single discover of such promotional alternatives, relatively than a discover for every particular person promotion. Such discover could also be offered: (1) on to workers (e.g., by e mail) in a periodic discover of the promotional alternative that’s frequent sufficient to present workers time to use, however no less than month-to-month; or (2) in a static discover, reminiscent of a bodily or intranet posting, or an worker handbook, (a) that’s constantly accessible to workers, (b) that workers are instructed incorporates discover of promotional alternatives, and (c) that’s up to date promptly every time any facet of the promotional alternative modifications (e.g., compensation, advantages, {qualifications}, job description, or utility course of).” INFO #9, p. 4.

2. Required Contents of Job Postings. An employer should disclose in every posting for every job opening the hourly or wage compensation, or a spread of the hourly or wage compensation, and a basic description of the entire advantages and different compensation to be provided to the employed applicant. C.R.S. § 8-5-202.

a. When required: Required for all “promotional alternatives.” Colorado doesn’t require that an employer publish all jobs externally.

i. Job postings for roles to be carried out totally exterior of Colorado – or with solely modest journey to Colorado – needn’t comply with this requirement. EPT Rule 4.3.(B); INFO #9, p. 2.

ii. Postings for roles which are distant and are as more likely to be carried out in Colorado as wherever else should comply with this requirement. INFO #9, p. 2.

iii. Job postings from 2020 solely meet these necessities in the event that they proceed into February 2021. INFO #9, p. 1.

b. Should embrace: Employers should embrace the next compensation and advantages data in every posting:

i. The speed of compensation (or a spread thereof), together with wage and hourly, piece, or day charge compensation. EPT Rule 4.1.1(A).

1. If an employer elects to publish a wage vary, it might prolong from the bottom to the best pay the employer in good religion believes it would pay for the actual job, relying on the circumstances. EPT Rule 4.1.2.

2. An employer might in the end pay roughly 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. EPT Rule 4.1.2.

ii. A basic description of any bonuses, commissions, or different types of compensation which are being provided for the job. EPT Rule 4.1.1(B).

iii. A basic description of all employment advantages the employer is providing for the place, together with well being care advantages, retirement advantages, any advantages allowing paid days off (together with sick go away, parental go away, and paid day without work, or trip advantages), and some other advantages that should be reported for federal tax functions, however not advantages within the type of minor perks. EPT Rule 4.1.1(C).

iv. This compensation and advantages data could also be included by way of a hyperlink in a job posting. INFO #9, p. 2. However, with the potential for damaged hyperlinks and dangers of hyperlinks not being carried by way of to 3rd occasion posting websites, utilizing hyperlinks might create extra issues than it solves.