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January 13, 2021

REMINDER: Colorado Now Requires Disclosure of Compensation and
Benefits with All Job Postings and Advance Notice of Promotional
Opportunities

L. Anthony George
Bryan Cave Leighton Paisner
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Employers with at least one employee in Colorado should remember that
they are now required to comply with the pay transparency and
promotion transparency requirements of the Colorado Equal Pay for
Equal Work Act, which took effect January 1, 2021.  The governing
regulations can be found at 7 CCR 1103-13.  In addition, the Colorado
Department of Labor and Employment ("CDLE") has issued Interpretive
Notice & Formal INFO #9 ("INFO #9"), a non-binding interpretation
regarding these requirements ("INFO #9"), which can be found here.

Pay Transparency

All job postings must now include the hourly or salary compensation,
or compensation range, for the position and a general description of
the benefits and other compensation that will be provided to the
successful applicant.  Employers may use electronic links to
compensation and benefit information, rather than including that
information in the posting itself.

If compensation is stated as a range, that range must represent the
lowest and highest pay that the employer in good faith believes it
might pay for that particular job.  Relying on stale data regarding
the filling of such positions in the past, or using the same blanket
"range" for all positions, will not suffice.

CDLE has opined in INFO #9 that employers must disclose only
significant benefits (such as health care, pension and vacation) and
not "minor perks" (such as use of an on-site gym or employee
discounts).  INFO #9 also states that benefits may be described
generally (e.g., "health insurance") without specifying coverage
levels or premiums.

To be clear, there is no requirement that employers post any jobs
(except for notice of promotional opportunities as discussed below). 
But if they do, they must include this information.

Coverage:  This requirement does not apply to postings for jobs to be
performed entirely outside of Colorado, but it does apply to
positions that will be performed by telework or other remote work. 
In addition, this requirement does not apply to postings that are
made entirely outside of Colorado, but it does apply to online
postings that are accessible to Colorado residents (which may well
mean all online postings).

Promotion Transparency

Employers are now required to make "reasonable efforts" to provide
notice of all opportunities for promotion to all Colorado employees
on the same calendar day, before making the promotion decision.  A
position is considered a "promotional opportunity" if it could be
considered a promotion for any employee in terms of compensation,
benefits, status, duties or access to further advancement.

The notice must contain at least the job title, how to apply for it,
and the compensation information now required in all job postings. 
This notice requirement can be satisfied by directing employees to a
physical or electronic location where they can find job postings and
announcements.

The purpose of this requirement is to ensure that female and minority
employees have an opportunity to express interest in and be
considered for promotional opportunities.  Therefore, employers
should expect that the requirements will be construed broadly.

Coverage:  This requirement applies to all employees in Colorado but
not to employees who work exclusively outside of Colorado.  It
applies to all promotional opportunities, including positions to be
performed outside of Colorado, but CDLE has opined in INFO #9 that
compensation information need not be included for out-of-state
positions.  However, a position that will be performed by telework or
other remote work is not considered an out-of-state position.  Notice
of the opportunity must be provided to all Colorado employees for
whom the position would be a promotion, even those employees who are
not qualified for the position, but the employer may state that
applications are limited to those with certain qualifications and may
reject candidates who lack those qualifications.

Exceptions:  The requirement to provide notice of promotional
opportunities does not apply where:

  * there is a compelling need to keep the opening confidential
    because the employee holding the position is not yet aware that
    he/she will be removed from the position;
  * an employee was hired within the previous year with a written
    representation that he/she would be automatically considered for
    that position within one year; or
  * the position is expected to be filled only on a temporary basis
    for six months or less.

Continuous Vacancies:  One recurring issue is how to communicate
promotional opportunities that occur continuously, such as where an
employer with high turnover is continuously recruiting for certain
positions.  CDLE has opined in INFO #9 that, where a position will be
filled at least monthly, a monthly posting will be sufficient.

Line-of-Progression Advancement:  Another recurring issue is whether
"line-of-progression" advancements must be communicated to all
employees, such as when a Mechanic I is automatically advanced to
Mechanic II upon passing a skills test or serving a specified number
of months as a Mechanic I.  CDLE has opined in INFO #9 that such
advancements are "opportunities for promotion" that must be
communicated to all employees.  But that interpretation is contrary
to the Act and CLDE's regulations.  The Act speaks of "opportunities
for promotion."  See C.R.S. 8-5-201.  And CDLE's regulations clarify
that an "opportunity for promotion" means a "vacancy."  See 7 CCR
1103-13, Section 4.2.1 ("A 'promotional opportunity' exists when an
employer has or anticipates a vacancy in an existing or new position
. . . .").  In a line-of-progression advancement, there is never a
vacancy.  If the Mechanic I does not pass the skills test or serve
the requisite number of months, no one becomes a Mechanic II.  Stated
another way, the "opportunity for promotion" to Mechanic II exists
only for a given Mechanic I and no one else.  Therefore, this
non-binding interpretation by CDLE appears to be erroneous.  However,
until such time as CDLE corrects it or a court rules it invalid,
employers may wish to follow CDLE's guidance.

Penalties

Violations of these requirements may result in fines of $500 to
$10,000 per violation.  CDLE has stated in INFO #9 that fines will be
assessed on a per-position basis rather than a per-posting or
per-employee basis.  For example, multiple noncompliant postings for
one position will be considered one violation.  Similarly, failing to
provide notice of a promotional opportunity will be considered one
violation no matter how employees failed to receive the required
notice.

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DISCLAIMER: Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
situations.

(c) Bryan Cave Leighton Paisner | Attorney Advertising

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