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August 12, 2021

Colorado Provides Updated Guidance on EPEWA Employer Obligations

Signed into law in 2019 and in effect since January 1, 2021, Colorado’s Equal Pay for Equal Work Act (Act) remains a work in progress.

Once signed into law the Colorado Department of Labor and Employment (CDLE) began attempting to clarify some of the Acts more confusing aspects. In November 2020 it issued the Equal Pay Transparency (ETS) rules. One month later it released Interpretive Notice & Formal Opinions #9 (INFO #9) providing clarification as to how CDLE is interpreting the Act and the ETS rules. Specifically, INFO #9 details employer obligations to include compensation in job postings, notify employees of promotional opportunities, and to keep records of job descriptions and wage rates. Read more about the Act.

On July 29, 2021 the CDLE continued its efforts by issuing an update to INFO #9 providing much needed clarity regarding the following:

Covered Postings: A “posting” is any “written or printed communication [in any medium] that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions.”[i]  Covered postings include any posting by an 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.

Out of State Exclusions: INFO #9 makes clear employers need not disclose compensation for jobs that are to be performed entirely outside of Colorado, even if the job has limited travel to Colorado. What about remote positions offered by Colorado employers?

  • Positions offered by Colorado employers that can be performed remotely – in Colorado or elsewhere – are not considered “out of state jobs” and are not within the Act’s narrow exception. This is because the Act covers all jobs except where an out of state worksite arguably makes Colorado law inapplicable (e.g., waitstaff at restaurant locations in other states).

NOTE: This means an employer attempting to circumvent the out of state exclusion by refusing to accept Colorado applicants for remote work positions risks violating the Act.

Disclosures: For each job posting employers are required to provide the rate or range of pay offered, a general description of additional compensation and all benefits offered. How much information must be provided? INFO #9 clarifies as follows:

  • Rate of pay listings must include the actual rate of pay (e.g., salary, hourly, piece and/or day rates) and a general description of any bonuses, commissions, or other compensation.
  • Pay range listings cannot be vague or open-ended (e.g., “$30,000 and up” or “up to $60,000”) and should include both a top and bottom range. Amounts must reflect what the employer believes it might pay for the position offered, even if it ends up paying more or less than the range posted.
  • All benefits must be generally described (e.g., healthcare, retirement, paid days off). Benefits do not include minor “perks” (e.g., parking or employee discounts) and there is no requirement to provide specific details or dollar amounts. Phrases like “health insurance provided” should suffice.

The Act allows significant fines for violations. Visit the CDLE for additional interpretive notices, opinions, and other published guidance important to Colorado employers. 

Members seeking further information about Colorado’s Equal Pay for Equal Work Act should contact Western Growers.

[i] This does not include a “Help Wanted” sign or similar communication indicating only generally, without reference to any particular position, that an employer is accepting applications or hiring.