Colorado’s Equal Pay for Equal Work Act (“EPEWA” or the “Act”) went into effect on January 1, 2021.[1] The Act requires employers to include compensation in job postings, notify employees of promotional opportunities, and maintain job description and wage rate records. EPEWA has been described as “one of the toughest enhanced state pay equity laws to date.”[2] One of the most salient aspects of EPEWA is its pay transparency mandate. The Colorado Division of Labor Standards and Statistics (the “Division”) is charged with investigating complaints against employers of noncompliance with the mandate. Employers that fail to include pay and benefits disclosures in a job posting risk a violation, with penalties between $500 and $10,000 for each instance of noncompliance.[3]
However, some companies are already finding ways around the legislation’s pay transparency mandate. The Atlantic’s Saahil Desai writes: “Squint at the fine print on remote-job listings lately and you might see something like this, for a senior sales manager at Samsung: ‘This role can be performed remotely anywhere in the United States with the exception of Colorado.’”[4] Hundreds of companies have adopted similar language in recent job postings. In fact, Desai found more than 700 job listings that included the phrase “except Colorado” on the online job board, Indeed.com.[5]
In response to this issue, the Division issued a notice on July 21, 2021, to all companies about whom they received noncompliance complaints regarding the Act’s pay transparency component. [6] The letter notifies employers of three key points:
- Remote jobs are clearly covered by the Act’s pay disclosure requirement, regardless of an employer’s expressed intent not to hire Coloradans.
The Act contains unambiguous language such as “with no exception for remote jobs.” Covered employers posting remote work performable anywhere, not just at out-of-state sites, are not beyond the reach of Colorado law. Thus, when employers covered by the Act post remote jobs, declaring a preference not to hire Coloradans does not eliminate the Act’s pay disclosure duty.
- Pay disclosure can be implemented flexibly, often with little change to existing practices.
For example, the required pay information included in the job posting may be brief. It need only include: 1) the pay or pay range, and 2) a short “general description” of available benefits. If exact pay is not known in advance, a flexible range from the lowest to the highest the employer genuinely may offer for that position may be posted.
- Flexibility on timeframe to modify postings, with individualized advice available if desired.
The employers who received the July 2021 notice were given a deadline of August 10, 2021 to indicate by what date all covered job postings would include the required pay and benefits disclosures.
Despite these instances of noncompliance, the Act is not, in fact, unreasonably difficult to conform with. According to the Division, two data points show that compliance with the Act is not unduly burdensome. First, according to research conducted by the Division, the “overwhelming majority” of Colorado’s largest employers brought their job postings into compliance in early 2021, which is very quick for such a new labor law.[7] Second, as of July 2021, all employers informed of violations agreed to fix their postings promptly and the Division waived all potential fines in each case.[8]
It is clear that the Division encourages compliance and welcomes the opportunity to provide employers with guidelines and answer any questions they may have about EPEWA’s requirements. Still, companies must make sincere compliance efforts or risk being levied hefty fines.
[1] Equal Pay for Equal Work Act, C.R.S. § 8-5-101 et seq.
[2] https://worldatwork.org/workspan/articles/cutting-out-coloradans-employers-are-finding-ways-around-epewa
[3] C.R.S. § 8-5-203(4).
[4] https://www.theatlantic.com/politics/archive/2021/07/remote-jobs-colorado-equal-pay/619581/
[5] Id.
[6]https://cdle.colorado.gov/sites/cdle/files/Compliance%20Assistance%20Letter%20to%20Employers%2C%20Remote%20Jobs%20Covered%20by%20EPEWA.pdf
[7]https://cdle.colorado.gov/sites/cdle/files/Compliance%20Assistance%20Letter%20to%20Employers%2C%20Remote%20Jobs%20Covered%20by%20EPEWA.pdf
[8] Id.