As we previously reported here, effective January 1, 2024, Colorado’s Equal Pay for Equal Work Act (the “Act”) was amended to impose new, administratively burdensome job opportunity, post-selection, and career progression notice requirements on employers. Colorado’s Department of Labor and Employment (“CDLE”) recently issued Equal Pay Transparency Rules (the “Rules”), which provide some much-need clarity regarding the Act’s new notice requirements.
As amended, the Act requires employers to disclose the date the application window for an opportunity is anticipated to close. This requirement created significant uncertainty for employers with ongoing “evergreen” job postings that do not have a set close date. The Rules make clear that a deadline need not be included if the employer accepts applications on an ongoing basis and there is no fixed deadline to apply, as long as that fact is clearly stated in the posting. Additionally, the Rules acknowledge that the deadline for any opening may be extended without running afoul of the Act if (1) the original deadline was a good-faith estimate of what the deadline was expected to be; and (2) the posting is promptly updated when the deadline is extended.
The amended Act also requires employers to disclose the identity of the candidate selected for a job opportunity to the team of employees with whom the selected candidate will regularly work. But the Act did not define the term “work with regularly.” The Rules clarify that “work with regularly” means the team of “employees who, as part of their job responsibilities, either (1) collaborate or communicate about their work at least monthly, or (2) have a reporting relationship (i.e., supervisor or supervisee).” The Rules also explain that employers may comply with this notice requirement by providing information about (1) each individual selection separately, or (2) multiple selections at once, as long as this combined notice is provided no more than thirty days after any identified selection. The Rules also outline a procedure through which a selected candidate may notify the employer that disclosure of their identity would violate their privacy rights under applicable law or place their health or safety at risk.
The amended Act also carved out exceptions to the notice requirements for temporary, interim, or acting job opportunities where an immediate hire in needed. The Rules clarify that notice of a job opportunity is not required to fill a position on temporary, interim, or acting basis for up to nine months, if: (1) the position is not expected to be permanent (if the hire may become permanent, the required job opportunity posting must be made in time for other employees to apply for the permanent position); and (2) the same or a substantially similar temporary, interim, or acting position was not held any time in seven or more of the preceding twelve months by another hire for which there was no job opportunity posting.
Finally, the Rules clarify that the Act’s job opportunity, post-selection notice, and career progression notice requirements do not require notice to employees entirely outside Colorado.
