January 7, 2021 / North America
In March 2019, Colorado enacted the Equal Pay for Equal Work Act (the “Act”) in an effort to combat gender-based pay disparities and promote pay transparency in the workplace. The Act established several new requirements for various pay practices and job postings, but was somewhat lacking in detail, leaving employers to make good-faith efforts to prepare for the Act in the absence of additional guidance. For more information regarding the general requirements of the Act, please see our previous article, “Colorado Equal Pay for Equal Work Act: Is Your Company Ready for 2021?”.
In September 2020, the Colorado Department of Labor and Employment (“CDLE”) proposed Equal Pay Transparency Rules to clarify several provisions of the Act and lay out the process for employees to make claims. The final Equal Pay Transparency Rules (“EPT Rules” or “Rules”) were issued on November 10, 2020, and include some significant clarifications, likely as a result of comments and pushback from employers and practitioners. Some of the most notable provisions of the EPT Rules include:
The EPT Rules provide additional detail to some previously ambiguous provisions, and in some cases provide more leeway for employers, though the requirements of the Act remain some of the most stringent in the country. Each of the above significant provisions of the EPT Rules are summarized below.
Content of All Job Postings
The EPT Rules provide additional guidance regarding the compensation information to be included in job postings. Job postings must include an hourly rate or salary (or range thereof) that the employer believes it will pay for the job posted. The final compensation amount paid may ultimately differ from the posted range as long as the posted amount was determined in good faith. The EPT Rules also require that postings must include information pertaining to any bonuses, commissions, or other forms of compensation, but clarify that the posting need not include specific amounts of such types of compensation. Finally, the Rules provide additional details related to the benefits that should be described in job postings, which include “…health care benefits, retirement benefits, any benefits permitting paid days off (including sick leave, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, but not benefits in the form of minor perks.”
Postings Regarding Promotional Opportunities
The EPT Rules require that employers make reasonable efforts to announce or post promotional opportunities by ensuring that “all covered employees can access the posting or announcement within their regular workplace, either online or in hard copy, and are told where to find required postings or announcements.” Such postings or announcements must contain the job title, compensation and benefits information as required for external job postings, and the method by which employees can apply for the position…
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