Colorado’s Department of Labor and Employment (CDLE) recently addressed several loopholes that employers had relied upon to avoid some of the posting requirements in the Equal Pay for Equal Work Act.
The CDLE’s updated guidance includes detailed information about and interpretation of the Act, summaries of the Act’s statutes and rules, and addresses many frequently asked questions about implementation.
The CDLE’s updated guidance was released on the heels of the dismissal of a lawsuit filed by the Rocky Mountain Association of Recruiters. That lawsuit challenged the Promotion Posting requirement of the Act, which required that employers make reasonable efforts to announce, post or otherwise make known all opportunities for promotion to all current employees; and the Compensation Posting requirement, which mandated that job postings must disclose the expected compensation for the position, as well as a general description of all benefits and other compensation being offered.
Of particular importance, the CDLE’s updated guidance states that employers cannot circumvent the Act’s posting requirements by stating that a job position can be performed “anywhere but Colorado.”
Penalties for violations of the Act can range from $500 to a costly $10,000 per violation (i.e., per failure to disclose a compensation range for each covered job posting.) And although the CDLE has already begun investigating violations and issuing fines, they have also stated that they are currently “overwhelmingly” focused on obtaining voluntary compliance.
The most common (and often unintentional) employer violation may be related to the Compensation Posting requirement. Employers need to understand that when posting a range of possible compensation, as required by the Act, the bottom and top of the pay range cannot be left unclear with open-ended phrases such as “30,000 and up”, or “up to $60,000.” And although an employer may ultimately pay more or less than the posted range, the range – at the time of posting – must be what the employer genuinely believed it would be willing to pay for the job.
For example, an employer cannot post the same $30,000-$100,000 range for janitor and accountant jobs alike if it does not genuinely anticipate offering an accountant the low end or a janitor the high end. Nor can an employer post a $70,000-$100,000 range for a junior accountant position just because it pays senior accountants at the high end of that range. But it can post $70,000-$100,000 for an accountant if it does not limit the posting to junior or senior accountants, and genuinely might offer as low as $70,000 for a junior accountant, or as much as $100,000 for a senior one.
The CDLE recently conducted a webinar focused solely on Colorado’s Equal Pay for Equal Work Act. It is a helpful resource for any employer struggling to fully understand what the law means for them and what compliance entails.
If you have additional questions or concerns about complying with the Equal Pay for Equal Work Act or want to ensure that your business is not unintentionally breaking the law, please reach out to an experienced employment lawyer at Fortis Law Partners.