As anticipated, the Colorado Department of Labor and Employment (CDLE) has published proposed updates to its Equal Pay Transparency Rules (the “Updated EPT Rules”), which implement the Colorado legislature’s recent amendments (the “2024 Amendments”) to the Equal Pay for Equal Work Act (the “Act”) that take effect January 1, 2024. Below, we identify four areas in which the Updated EPT Rules provide much-needed clarity to Colorado employers regarding their obligations under the 2024 Amendments.
The Updated EPT Rules incorporate the 2024 Amendments’ definitions of several key terms, including “job opportunity,” “vacancy,” and “career progression.” However, as we previously flagged, the 2024 Amendments remove references in the Act to “job postings,” and it was unclear whether the requirements for “notices” that employers must provide to current employees extended to external job postings. The Updated EPT Rules eliminate this uncertainty by stating that a job opportunity “notice” and “posting” are one and the same. As such, to the extent an employer advertises a job opportunity in a job posting after January 1st, the Updated EPT Rules would continue to require employers to include certain compensation and other information in the posting.
Pre- and Post-Selection Disclosure Requirements
The Updated EPT Rules distinguish between an employer’s disclosure obligations based on when in the selection process the disclosure must occur. Disclosures that must be made prior to selecting a candidate for a job opportunity are referred to as “pre-selection” disclosures, while disclosures that must be made after selecting a candidate for a job opportunity are referred to as “post-selection” disclosures.
When Must a Pre-Selection Disclosure be Made?
The 2024 Amendments only require pre-selection disclosures for positions that qualify as “job opportunities.” Accordingly, the Updated EPT Rules clarify that pre-selection disclosures are not required for career developments and career progressions (but, for the latter types of positions, as described below, employers must provide an alternative career progression notice to employees). The Updated EPT Rules also incorporate the 2024 Amendments’ temporary exception for employers located outside of Colorado, and which have fewer than 15 employees working remotely in Colorado. Through July 1, 2029, such employers need only make pre-selection disclosures for remote job opportunities.
The Updated EPT Rules also provide an exception to the pre-selection disclosure requirement when an employer is hiring for certain acting, interim, or temporary (AINT) roles that last up to nine months. However, for this new exception to apply, all three of the following must be true: (1) the position requires immediate hire into an AINT role; (2) the AINT hiring is not expected to be permanent; and (3) the position was not held any time in the preceding 12 months by another AINT hire for which there was no job opportunity posting (and thus no pre-selection disclosure).
What Information Must be Included in a Pre-Selection Disclosure?
The 2024 Amendments require employers to include compensation, benefits, and information about the application process in postings and employee notices for job opportunities. The Updated EPT Rules clarify that information about the application process includes how candidates may apply for the job opportunity, as well as the employer’s good-faith estimated deadline by when candidates must apply. If there is not a deadline, because an employer accepts applicants on an on-going basis, the Updated EPT Rules require the employer to disclose this information in the posting and/or notice. The Updated EPT Rules also permit an employer to extend its original application deadline so long as the original deadline was a good faith estimate and the posting and/or notice is promptly updated to reflect the extended deadline.
When and to Whom Must a Post-Selection Disclosure be Made?
After filling a job opportunity, the 2024 Amendments require employers to disclose the selected candidate’s name, former job title (if the selected candidate is transitioning from another position with the employer), new job title, and information on how employees may demonstrate interest in similar job opportunities within thirty calendar days of the selected candidate starting the new position. The Updated EPT Rules clarify that this post-selection disclosure must be made to any employee who: (1) will collaborate or communicate with the selected candidate about their work at least monthly; or (2) is supervised by or who will supervise the selected candidate.
Career Progression Notices
As noted above, career progressions do not qualify under the 2024 Amendments as a “job opportunity,” so employers do not need to make pre- or post-selection disclosures in connection with these promotions. Employers must, however, provide eligible employees with information regarding the requirements for achieving such career progressions. The Updated EPT Rules clarify that an “eligible employee” is one who is in the position that, “when the requirements in the notice are satisfied, would move from their position to the other position listed in the notice as a ‘career progression.’”
Colorado employers will be relieved to learn that under the Updated EPT Rules, pre-selection disclosures, post-selection disclosures, and career progression notices need not be provided: (1) to employees working entirely outside of Colorado and (2) for job opportunities performed entirely outside of Colorado.
The CDLE held a public hearing on the Updated EPT Rules on October 30, 2023, so it remains to be seen whether further changes to the Updated EPT Rules will be forthcoming. Once adopted, the final Updated EPT Rules will take effect on January 1, 2024.
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