Colorado Department of Labor Issues Guidance on Posting Requirements

The Colorado Department of Labor and Employment issued an Interpretive Notice & Formal Opinion #9 addressing the state’s Equal Pay Transparency (EPT) rules that went into effect on January 1, 2021. They also issued a Notice Regarding Labor Law Compliance on the same day to employers with remote job postings that lack pay and benefits disclosure information.

Job Posting Clarifications

• Employers can’t avoid compensation and benefit disclosures for remote job postings by excluding Colorado candidates. The Colorado Equal Pay for Equal Work Act (EPEWA), which also took effect on January 1, 2021, “expressly covers all jobs, so a Colorado-covered employer’s posting of work performable anywhere is not within the narrow implied exception for out-of-state worksites to which Colorado law is arguably inapplicable.”
• Job postings can’t use open-ended phrases when disclosing compensation and benefits. Employers cannot provide salary ranges that are unclear with information such as “$50,000 and up” or “up to $50,000.” Employers must also include the general description of all benefits and cannot use terms such as “etcetera” or “and more.”
• Employers may include links to compensation and benefits information in electronic job postings with a notice that the link provides access to the required disclosure.

Promotion Posting Requirements

• Multistate employers must still notify Colorado employees of all promotional opportunities regardless of location but they do not need to include compensation or benefits for promotional opportunities outside of the state (except for remote positions).
• A natural career progression is considered a promotion under the EPEWA and employers must notify Colorado employees of a career progression-type promotion unless the promotion is promised in writing upon hiring and occurs within one year of hire.
• Employers may combine multiple promotions into one notice, as long as employees have sufficient time to apply for all positions included in the notice.
• Where an employer continuously hires for a position that may qualify as a promotional opportunity or automatically promote employees in an in-line progression, employers may provide a single notice of all such promotional opportunities.
• Both of the above two notices may be given directly to employees or posted in a static notice that would always be accessible to employees and can be updated easily and promptly, e.g. an internet posting or a notice in an employee handbook.

The Division of Labor Standards and Statistics of the Colorado Department of Labor and Employment has enforcement responsibilities and may initiate an investigation based on a formal or anonymous complaint. Employers receiving a violation may be required to remedy the violation and/or pay fines of $500 to $10,000 for each violation. An example of a single violation is the failure to include compensation and benefits information in one or more postings for a single job, regardless of the number of posting listing the job. Also, failure to notify employees of a single promotional opportunity would also be a considered one violation, regardless of how many employees weren’t notified.

The Division did offer employers with non-compliant job postings flexibility on a timeframe to modify postings. Employers may inform the Division by August 10, 2021, to indicate the date by which all covered job postings will include the pay and benefits disclosures.