Friday, December 18, 2020: Colorado Asserts Nationwide Reach Over Most Online Job Postings of “Colorado Employers” in New Guidance Re Pay Transparency Rules
On Friday, December 18th, the Colorado Division of Labor Standards & Statistics (“DLSS”) issued Interpretive Notice & Formal Opinion #9 (“INFO #9”) regarding the pay transparency requirements in the new Colorado Equal Pay for Equal Work Act (“EPEWA”).
Most of the guidance is helpful to comply with the EPEWA, addresses technical details of covered job postings, and discusses which jobs must have the EPT (“Equal Pay Transparency”) data Colorado now requires of most job postings. As to the extra-territorial reach issue which has been vexing employers, the DLSS boils it down to four simple rules (two of which multi-state employers will NOT like) to deal with the varying contexts of multi-state employers:
- Jobs to be filled in Colorado, by a “Colorado employer” (meaning the employer has one or more employees in Colorado), require inclusion of the EPT data, even if the employer seeks jobseekers ONLY from outside of Colorado using an online listing or posting (which thus allows Colorado residents and employees to access that job posting).
- Jobs to be performed outside of Colorado which you are filling need NOT have the EPT data (even if Colorado employees can access that job posting via the Internet).
- An employer with no employees in Colorado need not include EPT data in any job posting.
- Remote (aka virtual) jobs which a jobseeker could work from Colorado must contain the EPT data.
You will not like Rule #1, above, because it creates large operational challenges (to create Colorado-specific job descriptions and electronic markers for job scrapers to prevent jobseekers all over the country from otherwise seeing Colorado EPT information while under the impression the advertised job is not in Colorado) and, in some cases, forces either the revelation of HR trade secrets or the decision to no longer hire employees in Colorado. But, Rule #1 has a limited application even though it asserts nationwide extraterritorial reach over all job postings which:
(a) “a Colorado employer”
(b) posts online for jobs to be worked in Colorado
(c) while seeking jobseekers ONLY from OUTSIDE the state of Colorado to fill the job.
Colorado rests its rationale for this policy conclusion on its observation that Colorado residents and the employer’s Colorado employees could access those postings via the Internet and are entitled to know what those jobs pay, and their benefits. This would require out-of-state employers with even only one employee in Colorado to include pay data information in job postings for Colorado jobs if posted on a company’s corporate website or on job boards or with recruitment services like Monster, LinkedIn and Indeed.
But employers will like Rules #2 and #3, so things are looking up.
But then there is Rule #4 as to remote work, another large operational challenge and which requires the choice of one of five potential operational choices referenced, below. Nonetheless, you likely give in to Rule #4 (because it regrettably makes sense, even though like Rule #1, it forces a lot of difficult corporate choices, including either forcing the revelation of HR trade secrets or the decision to no longer hire employees in Colorado).
Example of The Four DLSS Rules: The Houston Chronicle newspaper, headquartered in Houston, let’s assume, has a Denver office with reporters stationed there (thus rendering it a “Colorado employer”). The Chronicle wishes to hire a new reporter for its Denver office, let’s also assume. But, let’s also assume the Chronicle wishes to ONLY hire a reporter from outside of Colorado. Let’s also assume The Chronicle does not wish to include pay data information in its online posting of the job to avoid the competition from knowing what the paper is paying reporters and to avoid gossip in the Denver office about the new reporter’s salary and benefits. If The Chronicle were to publish a hard paper-printed want-ad it distributed in ONLY the 49 states OTHER THAN Colorado with no pay data information, The Chronicle would be fine and would not have violated Colorado’s pay data reporting law. If, however, The Chronicle were to have posted that want-ad online, even while looking ONLY outside the state of Colorado for a reporter to fill the Denver job opening, the Colorado DLSS takes the position that such online job listings/postings must include the EPT data because Colorado residents and Colorado employees of The Chronicle could access that online information from within Colorado.
A second context: If The Chronicle sought reporters to work ONLY outside of Colorado, it could list/post its jobs online nationwide and would NOT have to include pay data information even though Colorado residents could access that online posting.
The third context: If The Chronicle had no employees in Colorado, it could post a job for its coming Denver office (before it had hired any employees) without the pay data information because it is not a “Colorado employer” which the Colorado EPEWA covers. Yet. But one toe in the water…and GOTCHA ensues!
The fourth context: If The Chronicle posted a remote reporter job which could be worked virtually (meaning from any geographical location), including from Colorado, then EPEWA would require that job to contain the EPT data. (DE Members and customers: please consult pages 26 and 27 of the PowerPoints from last Tuesday’s (12/15/20) DE Member/customer Webinar re the Colorado Pay Transparency law to review your five options for remote jobs and as to which you must advise DE before January 1 as to how you wish to proceed with your remote jobs, unless you want them all to continue to be “listed” and “posted” in Colorado).
Please click on the Blog, below, to see the details of the new guidance contained in Colorado INFO #9, including the issues identified above.