The requirements of Colorado’s Equal Pay for Equal Work Act (EPEWA) are changing.

Since January 1, 2021, Part 2 of the EPEWA has required transparency in pay and job opportunities. Last summer, however, the Colorado Legislature amended the EPEWA, dramatically increasing Colorado employers’ obligations effective January 1, 2024. The Colorado Department of Labor and Employment (CDLE) recently adopted revised Equal Pay Transparency Rules and issued guidance in Interpretive Notice & Formal Opinion (INFO) # 9A.

Employers who do not comply may be subject to compliance orders and fines of $500 to $10,000 per violation.[1]

Here is what employers need to know about the EPEWA’s posting and notice requirements (including new obligations in 2024) and record keeping requirements:

Posting and Notice Requirements

The EPEWA now requires three types of notices: (1) Job Opportunity Notices; (2) Post-Selection Notices; and (3) Career Progression Notices.[2]

Job Opportunity Notices

Contents:Notices of job opportunities must include information on compensation, benefits, and the application process. These requirements apply to internal and external postings whenever the posting is for a specific job. The original EPEWA only required notice of “opportunities for promotion,” which was a difficult concept for employers to navigate. The new requirement is broader, but clearer. Job opportunities are defined as: “a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts.” Specifically, job opportunity notices must include information about:

1. Compensation: The specific hourly rate or salary (or range thereof) for the position and a general description of any other forms of compensation, including bonuses and commissions. For example, according to INFO #9A, stating “$18 per hour plus tips” is compliant because it contains a specific statement of the hourly rate and a general description of other compensation. Pay ranges should be good-faith and reasonable estimates of the lowest and highest possible compensation at the time of posting. Ranges must have a top and bottom number. Employers may ultimately pay more or less than the posted range. If pay will vary by state, the compensation information should be for Colorado hires. If pay will vary by locality within Colorado, employers should provide enough information to allow applicants to estimate their pay. Stated pay should never be below minimum wage.

2. Benefits: A general description of all employment benefits for the position, including healthcare, retirement, paid days off, paid leave, and any other benefits that must be reported for federal tax benefits. Minor perks do not need to be included.

3. Application Process: New in 2024, employers must provide information about the application deadline and how to apply for the position. If the employer accepts applications on an ongoing basis and there is no deadline, the posting must state that. Deadlines may be extended, but the original deadline must be identified in good faith and the posting must be promptly updated. An employer may identify a specific person who is expected to be selected for the position, but this does not excuse job opportunity notification requirements. For example, according to INFO #9A, the following statement would be compliant:“Jo Doe is recommended for promotion to senior accountant. Salary $50-70,000; health ins.; PTO; 401k. To apply by January 1, or to express interest in similar jobs, email interest@CompanyHr.com.”

Duty to Notify Employees:Employers must notify all Colorado employees of all job opportunities. Employers do not need to disclose compensation, benefits, and application information for jobs outside of Colorado. However, Colorado employees should still receive the job opportunity notices for out-of-state jobs. Employers may not limit notice to only those it deems qualified for the position, but they may say applications are open to individuals with certain qualifications and screen by those qualifications.

Employers must make “reasonable efforts” to “announce, post, or otherwise make known each job opportunity to all employees.” This notice must occur on the same calendar day for all employees and prior to the decision being made. However, employers may notify certain employees before disseminating a general notice for reasons such as assessing the employee’s interest in the opportunity. Employers make “reasonable efforts” by (1) using any method that allows all covered employees to access the information in their regular place of work (e.g., online, e-mail, or in hard copy), and (2) telling employees where to find the required postings or announcements. If the method does not reach all employees, an alternative method must be used to ensure all employees have access.

Certain job changes do not require job opportunity notices, including:

1. Certain Non-Competitive Promotions: Changes due to career development and career progression are non-competitive promotions and are not “job opportunities” requiring notice.

"Career development" means a change to an employee’s terms and conditions of employment to update their job title or to compensate them for work they already performed. In such cases there is no competitive job opportunity. Instead, the growth/evolution of the employee’s own duties warranted a change to their position. The work already performed cannot be part of a different position that they are being promoted into — in such case their position is not growing, rather they are being moved into a vacancy.

"Career progression" means “a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.” The career progression exception will not apply if any subjective factors (e.g., performance evaluation scores or manager recommendations) are considered in the promotion decision. Although career progression promotions are excused from job opportunity notices, they require a separate “career progression notice” as discussed below.

2. Confidential Replacements: Confidential openings related to replacement of an incumbent employee unaware of separation do not require notice. However, if any employees are told about the opportunity, all employees who meet the minimum qualifications for the job or who have a job that is substantially similar to others being told of the opportunity must be made aware of the opportunity. Further, employers may tell other employees about the planned termination without triggering notice requirements if such employees have bona fide roles in the termination or hiring of a replacement (such as human resources, decision-makers, etc.). If the need for confidentiality ends before the application deadline, employers must comply with posting requirements at that time.

3. Automatic Promotions: Automatic promotions after a trial period do not require notice. This exception applies when a promotion is within one (1) year of an employee being hired with a written commitment that the employer will consider the individual for promotion to a particular position based exclusively on the employee’s own performance and/or the employer’s needs.

4. Acting, Interim, or Temporary (“AINT”) Positions: No posting is required to fill a position on an AINT basis for up to nine (9) months where: (a) the hiring is not expected to be permanent; (b) the substantially similar/same position was not held at any time in seven (7) or more of the preceding twelve (12) months by another AINT hire, unless an AINT hire separates after more than seven (7) months and the employer wishes to hire a replacement to finish the nine (9) month term. To illustrate this exception, INFO #9A gives the following example:

A ski mountain annually hires six-month seasonal employees as AINT hires. That is permissible. But then it switches to be a ski mountain and late summer adventure park — so its seasonal employees start working nine months a year. After employing an AINT hire for seven to nine months, the employer can’t hire another AINT hire for those same positions the next year.

5. Remote Jobs in Certain Circumstances: Employers not physically located inside of Colorado who have fewer than fifteen (15) employees working remotely in Colorado, are not required to provide notice of remote job opportunities until July 1, 2029. However, employers must still disclose compensation, benefits, and application information for such jobs.

Post-Selection Notices

Starting on January 1, 2024, employers are required to provide certain notices after a candidate is hired for a job opportunity. Within 30 calendar days after the selected candidate begins work, employers must make “reasonable efforts” to provide information to Colorado employees with whom the employer intends the person selected will “work with regularly.” Specifically, employers must provide the following information: (a) the name of the selected individual; (b) the selected individual’s former job title if hired internally; (c) the selected individual’s new job title; (d) information regarding how to demonstrate interest in similar job opportunities, including identifying to whom employees should express interest. “Work with regularly” means employees who, as part of their job, collaborate or communicate about their work, monthly or more frequently, or who have a reporting relationship, i.e., they are in a supervisor/supervisee relationship. Employers may provide the required information to a broader range of employees or to all employees. Employers may provide this required post-selection notice for each selection, or for a group of selections, at the same time, as long as the notice complies with the timing requirements. INFO #9A provides the following example and sample compliant language:

After selecting Ali C. for promotion to Analyst IV, the employer sends a post-selection notice to Ali’s manager, Ali’s direct reports, and all other analysts on Ali’s team 30 days after the promotion. These are all of the employees Ali regularly works with. A compliant notice can read: Ali C. has been promoted to Analyst IV from Analyst III. Any employee interested in similar opportunities in the future should email Human Resources at HR@company.com.

Employers must not disclose the selected individual’s name and/or prior job title if any applicable law requires not disclosing this information. Under the EPEWA, employees can request that employers not disclose their name and/or prior job title if they believe disclosure would put their health or safety at risk. Employees do not need to provide detail regarding the risk. Such requests must be made on the employee’s own initiative and voluntarily; however, employers may inform candidates of their non-disclosure rights. Even if these exceptions apply, employers must still provide information on the new job title and how to demonstrate interest in similar jobs. For example, employers may send a notice that states that the position has been filled and how to express interest in future positions.

Career Progression Notices

Career progression notices are another new addition to the EPEWA effective January 1, 2024. For positions with "career progression," which means “a regular or automatic movement from one position to another based on time in a specific role or other objective metrics,” employers must disclose the requirements for progression and information on compensation, benefits, full- or part-time status, job duties, and opportunities for further advancement. This notice must be given to “eligible employees,” which means employees in a position that when the progression requirements are met would move to the new position. Notice must be given shortly after such employee begins that position. Employers may comply by providing this information to a broader range of employees or all employees.

Recordkeeping Requirements

Employers must keep records of each Colorado employee’s job description and all compensation, including their salary or hourly wage, benefits, and all other compensation (e.g., bonuses and commissions). These records must include changes to the job description or compensation during employment. Records must be kept until two years after the employee separates from employment. In a lawsuit for wage discrimination, failure to keep records can lead to a rebuttable presumption that the records not kept by the employer contained information favorable to the employee and a jury instruction that the failure to keep records can be considered evidence that the violation was not in good faith.

[1] According to INFO #9A, each job posted or not posted, if required to be posted, counts as a separate violation; multiple postings of one job (or multiple failures to post a job) count as a single violation; and failure to comply with the record keeping requirements is a separate violation for each employee.

[2] EPEWA notices are not required for employees who work entirely outside of Colorado.

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