Status of Colorado’s Equal Pay For Equal Work Act

By:  Kim Adamson

Colorado’s Equal Pay for Equal Work Act (“EPEWA”) was initially implemented on January 1, 2021, and was amended January 1, 2024. The EPEWA is aimed at promoting a fair workplace environment by closing gender pay gaps to ensure employees with similar job duties are paid the same wage regardless of sex, enhancing pay transparency, and increasing employer obligations and accountability to provide clear and accessible information about compensation and job opportunities. The EPEWA is enforced by the Colorado Department of Labor and Employment (“CDLE”).

The EPEWA has two parts. Part 1, referred to by the CDLE as “Unequal Pay,” prohibits employers from the following:

1. Asking about an applicant’s pay history or relying on pay history to determine an employee’s wage rate.
2. Discriminating or retaliating against a prospective employee for not disclosing their pay history.
3. Not allowing employees to discuss pay.
4. Requiring an employee to sign a document that prohibits the employee from discussing pay.
5. Retaliating against an employee for using their rights under the Equal Pay Act, including by filing a complaint with this Division.
6. Retaliating against an employee for discussing pay.

Part 2 of the EPEWA refers to “Pay Transparency,” and specifically requires employers to do the following in relation to transparency in pay and job opportunities:

1. Disclose compensation in all job postings and notices, both internal and public. The disclosure must include information about benefits and how and when to apply.
2. Disclose available job opportunities to all employees and then disclose who was selected to fill the position.
3. If the employer uses career progressions for certain roles, it must disclose to eligible employees how to advance through career progressions.
4. Employers are required to preserve records of wages and job descriptions.

The 2024 amendment to the EPEWA clarified additional requirements for employers who employ at least one employee in Colorado as follows:

1. Mandatory Posting and Notice Requirements: Employers must disclose compensation ranges and general descriptions of benefits in all job postings, including promotion opportunities. This ensures transparency and allows employees to make informed decisions about job opportunities.
2. Notification of Job Opportunities: Employers are required to notify all employees of available job opportunities on the same day they are posted. This includes internal and external postings, ensuring that all employees have equal access to advancement opportunities.
3. Record-Keeping Requirements: Employers must maintain records of wages and job descriptions to facilitate compliance and investigations.
4. Extended Recovery Period for Wage Discrimination Claims: The amendment extends the recovery period for damages from three years to six years, providing employees with a longer period of time to seek restitution for wage discrimination.

CDLE’s Interpretive Notice & Formal Opinion (“INFO”) # 9A states that non-compliance with the EPEWA can result in significant penalties for employers. The penalties are designed to ensure that employers adhere to the law’s requirements and promote fair pay practices. The key penalties are:

1. Fines: Employers may face fines ranging from $500 to $10,000 per violation.
2. Back Wages and Damages: Employers may be required to pay back wages to affected employees, along with liquidated damages and attorney fees3.
3. Compliance Orders: The CDLE can issue compliance orders to enforce the law.

According to the CDLE, as of October 2024, the department received 1,747 complaints, issued twenty citations, and collected fines totaling $238,000.

Colorado’s EPEWA continues to evolve, and the 2024 updates marked a significant step towards achieving pay equity. By enforcing stricter transparency and record-keeping requirements, Colorado is closing the gender pay gap and ensuring that all employees receive fair compensation for their work. As the law progresses, it will be crucial for employers to stay informed and compliant to foster fair and equitable treatment in the workplace.

References:

1. Colorado Department of Labor & Employment
2. Amundsen Davis Labor & Employment Law Update
3. com
4. com
5. CDLE/Interpretative Notice 9A