As we previously discussed, Colorado’s Equal Pay for Equal Work Act (EPEW) required Colorado employers to, among other things, disclose compensation information on job postings for positions that are performed in Colorado. However, the EPEW contained an out-of-state exception whereby this requirement would not apply to jobs that were performed entirely outside of Colorado.
With the increase of remote working arrangements brought on by the COVID-19 pandemic, ambiguity regarding the meaning of “performed entirely outside Colorado”, and media attention surrounding employers advertising remote jobs available to applicants located anywhere but Colorado, on July 21, 2021, the Colorado Department of Labor and Employment’s (CDLE) Division of Labor Standards and Statistics updated its Interpretive Notice & Formal Opinion (INFO) # 9 to clarify its opinions on the issue and to effectively close this loophole.
In particular, INFO #9, as revised, states that the out-of-state exception must be narrowly applied and would only apply, for example, to jobs tied to non-Colorado worksites (i.e., waitstaff at restaurant locations in other states). The CDLE further made clear that the requirement to include compensation information in postings would encompass job postings for remote work, even if such a posting states that an employer would not accept Colorado applicants.
In addition to providing guidance on the applicability of the posting requirements, INFO #9 clarifies that when posting a compensation range, employers may not leave the bottom or top of the range open ended (for example, “$30,000 and up” or “up to $60,000”).
Although INFOs published by the Division of Labor Standards and Statistics are not binding law, they represent the official opinions of the Division as to how to interpret certain statutes and rules. INFO #9 is instructive on the CDLE’s interpretation of the EPEW and how the Division can be expected to approach enforcement to perceived EPEW violations.