Employers with employees in Colorado must comply with recent amendments to Colorado’s Equal Pay for Equal Work Act (EPEWA) that became effective January 1, 2024.  While offering benefits such as cut off dates for applications, it creates more work for HR because it may not be able to standardize completely the new regulations’ requirements.

Effective January 1, 2024, employers with at least one employee working from Colorado must make reasonable efforts to announce, post, or otherwise make known each job opportunity to all Colorado employees on the same calendar day and prior to the date on which the employer makes a selection decision. 

A job opportunity is “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.” A vacancy is “an open position, whether as a result of a newly created position or a vacated position.” Job opportunity includes both internal and external openings.  Notices to employees that are required under the regulation are called “job opportunity notices.”

Job opportunity notices are for those jobs that are to be primarily performed in Colorado, or that could be performed in Colorado (i.e., remote jobs), and must include information on compensation, benefits, and the application process.  Specifically, the notices must include:

a. the hourly rate or salary compensation (or a range thereof) that the employer is offering for the position;

b. a general description of any bonuses, commissions, or other forms of compensation that are being offered for the job;

c. a general description of all employment benefits the employer is offering for the position, including health care benefits, retirement benefits, any benefits permitting paid days off (including sick leave, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, but not benefits in the form of minor perks;

d. the application deadline; and

e. how to apply for the job opportunity.

Employers must state that the hourly rate will not be below the hourly rate in the area hiring and that if the salary ranges in Colorado are different, to post the range for the location hiring.  Employers may satisfy the job opportunity notice requirements by linking to information located elsewhere (such as a company website) within the job notice. 

With respect to Evergreen postings (continuously open), they are permissible and excluded from the requirement to provide a deadline if the posting states that there is no deadline because the employer accepts applications on an ongoing basis. Further, application deadlines may be extended so long as the original deadline was set as a good-faith expectation or estimate and the posting is updated promptly when the deadline is extended.  Getting notices to employees requires the employer to make “reasonable efforts” by “any method(s) by which all covered employees (1) can access within their regular workplace, either online or in hard copy, and (2) are told where to find required postings or announcements.” 

Moreover, the regulations require that “post-selection notices” are sent to employees with the following information: (1) the name of the selected candidate, (2) their former job title (if applicable), (3) their new job title, and (4) information on how employees may demonstrate interest in similar job opportunities. Post-selection notices must be provided within 30 days after the selected candidate starts work in their new role.  Employees who are required to receive these notices are those who will either collaborate or communicate about their work with the Colorado employee at least monthly or have a reporting relationship with the Colorado employee (i.e., supervisor or supervisee). Employers may comply by providing the post-selection notices to a broader range of, or all, employees.

There are exceptions to these requirements that include:

1. “Career progression” and “career development” promotions,
2. Opportunities that are solely outside the state of Colorado,
3. Acting, interim, or temporary role (“AINT” roles), where the AINT hiring is not expected to be permanent, and the position was not held any time in the preceding 12 months by another AINT hire for which there was no job opportunity posting,
4. Confidential hiring for current employees unaware of their coming separation, but once separated and hire has been made, the employer must make the post-selection notices available, and
5. Employee opt-outs of post-selection notices if they inform their employer in writing, on their own initiative and voluntarily, that they believe disclosing their name and/or former job title would put their health or safety at risk.

Given everything, employers with employees in Colorado should add application deadlines to job postings for positions that can be filled in or from Colorado (including remote positions) and develop a process for updating those postings with extended deadlines when necessary or removing the posting when the deadline passes, while developing with legal counsel Job Opportunity and Post-Selection Notices and process for distribution.

Source:  Littler 12/22/23, Jackson Lewis 12/22/23