The Colorado legislature rolled out revisions and new provisions to the Colorado Equal Pay for Equal Work Act (“EPEWA”), titled the Ensure Equal Pay for Equal Work Act (“EEPEWA”), which take effect January 1, 2024. The EPEWA radically changed the game for employers and employees alike when it came on the scene in 2021. One of the biggest areas of confusion under the previous iteration of the EPEWA surrounded promotional opportunity internal posting requirements. Under EPEWA, Employers were required to post those positions, including compensation, deemed a promotional opportunity for any employee.
The new job posting requirements under EEPEWA, however, require employers to make reasonable efforts to announce, post, or otherwise make known each job opportunity to all employees on the same calendar day and prior to the date on which the employer makes a selection decision. Employers no longer need to determine if a role meets the promotional opportunity definition for any employee – instead, employers must post all job openings due to newly created or vacated positions.
The legislature also created two new exceptions to the posting requirements. Employers do not have to notify employees of positions if they are either a career progression or career development. Career progression is defined in the statute as a regular or automatic movement from one position to another based on time in a specific role or other objective metrics. Career development is defined in the statute as changes to an employee’s terms of compensation, benefits, full-time/part-time status, duties, or changes in title or compensation reflecting past performance.
The EEPEWA also more clearly limits the posting requirements by geography: if an employer is only physically located outside of Colorado and has fewer than fifteen employees working in Colorado, all of whom work only remotely, then, through July 1, 2029, the employer is only required to provide notice of remote job opportunities.
Required job postings must include: (1) the hourly or salary compensation or the range of the compensation; (2) a general description of the benefits and other compensation; and (3) the date the application window is anticipated to close.
Finally, the EEPEWA created two new requirements: (1) post-selection job announcement requirements; and (2) career progression opportunity disclosure requirements.
The post-selection job announcement requirements state that, within 30 days after a candidate begins working in the position, the employer must make reasonable efforts to announce, post, or otherwise make known to the employees whom the candidate will work with regularly:
- the name of the candidate selected;
- the selected candidate’s former job title if selected while already employed by the employer;
- the selected candidate’s new job title; and
- information on how employees may demonstrate interest in similar job opportunities in the future, including identifying individuals or departments to whom the employees can express interest in similar job opportunities.
For career progression opportunities, employers must disclose and make available to all eligible employees the requirements for career progression, full-time or part-time status, duties, compensation, benefits, and access to further advancement. “Career Progression” includes a regular or automatic movement from one position to another based on time in a specific role or other objective metric.
Posting violations carry the potential for a $500-$10,000 fine for each violation.
The CDLE announced that it will issue further rules regarding the amendments which should provide some clarity surrounding career progression, career development, as well as announcement and disclosure requirements.
If you would like assistance establishing compliant policies and procedures, please reach out to the Labor and Employment team.
