CDLE revises INFO no. 9 regarding Colorado Equal Pay law’s posting requirements

Following up on its recent informal email announcement, the CDLE has revised its Interpretive Notice and Formal Opinion (INFO) no. 9 interpreting Colorado’s Equal Pay for Equal Work Act’s posting requirements. Because the CDLE does not go through formal rulemaking when it issues INFOs, they do not carry the weight of law; however, they the CDLE’s opinion of how the law should be interpreted and reflect how the CDLE intends to interpret the law when called upon to apply it.

In these revisions, the CDLE confirmed its prior statement that covered employers may not evade the law by simply posting disclaimers in a job posting to the effect that Coloradans are ineligible. The CDLE confirmed here its position that these posting requirements do generally apply whenever Coloradans can access a posting, the work can be performed in Colorado (even if remotely into another state) and certainly when it can only be performed in Colorado. Key new language has been included in the following passages from INFO no. 9:

Covered job postings include any posting by a covered employer for either (1) work tied to Colorado locations or (2) remote work performable anywhere, but not (3) work performable only at non-Colorado worksites — as discussed below, under the header, “Out-of-State Jobs Are Excluded.”

…

Out-of-State Jobs Are Excluded. Employers need not disclose compensation for jobs to be performed entirely outside Colorado (which includes non-Colorado jobs that may include modest travel to Colorado), even if the job posting is in, or reaches, Colorado. Because the text of the Act excludes no jobs, the out-of-state exception is a merely implied one that must be applied narrowly, only where an out-of-state worksite makes Colorado law arguably inapplicable. The out-of-state exception therefore applies to only jobs tied to non-Colorado worksites (e.g. waitstaff at restaurant locations in other states), but not to remote work performable in Colorado or elsewhere. Thus, a remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the Act’s transparency requirements: the Act expressly covers all jobs, so a Colorado-covered employer’s posting of work performable anywhere is not within the narrow implied exception for out-of-state worksites to which Colorado law is arguably inapplicable.

Out-of-State Postings Are Excluded. Employers need not disclose compensation in job postings made entirely outside Colorado. For example, compensation and benefits need not be included in a printed advertisement or posting entirely in another state, but must be included in an online posting accessible by Colorado residents.

The CDLE added language confirming this is true for promotional opportunities as well:

As with job postings generally — see the above section, “Out-of-State Jobs Are Excluded,” as to the scope of the out-of-state exemption applicable here as well — remote jobs do not qualify for this exclusion; promotional opportunity notices for such jobs must include compensation and benefits.

Regarding promotional opportunities, INFO no. 9 continues to require that, if not actually provided to employees, the posting — such as on an intranet site — “must be posted for long enough that employees can reasonably access it.” The CDLE does not give further guidance on how long that would be.

Unfortunately some of the new language is likely to increase not decrease confusion about this new law. Consider for example this sentence (emphasis added), which apparently was meant to confirm that a simple Help Wanted sign is not a “posting” and need not contain information about compensation, benefits, etc.

A “posting” is any written or printed communication (whether electronic or hard copy) that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions, but not a “Help Wanted” sign or similar communication indicating only generally, without reference to any particular positions, that an employer is accepting applications or hiring.

Did the EEOC really intend to require that a small family-owned restaurant who hangs a “Cooks Wanted” sign in the window has to print the salary range, benefits, etc., on the sign?  Consider a sign at a larger company saying “Drivers Wanted”; how could such a sign even contain all the information that is encompassed in a driver’s position?

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Honored to have been selected for inclusion again in Best Lawyers in America

Honored to have been selected again for inclusion in The Best Lawyers in America©! Thank you to my peers who voted for me to receive this recognition.

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Colorado enacts law enabling private employers to prefer certain candidates on veteran-related grounds

Colorado has enacted CRS 8-1-153 to enable private employers to prefer certain candidates for hiring on the basis of their veteran-related status. Eligible candidates are:

  • A totally disabled veteran who is within 10 years of discharge
  • A less than totally disabled veteran, a member of the reserves or national guard, who is within 5 years after discharge
  • The spouse of a service member “killed in the line of duty” if within 5 years after that death

Unfortunately the act was badly written and is virtually certain to trigger litigation. For example, the statute only allows the employer to prefer such individuals for hiring if the company does so “uniformly to all hiring decisions.” Does that really mean “to all hiring decisions”? Shouldn’t it have been “to all hiring decisions for such position”? One can imagine a company is likely to have such a policy for some positions, but for other positions (such as C-level officers) may choose not to have such a policy.

More worrying, a company may only give such a preference if the veteran-related candidate is “at least as qualified as the other applicants.” Note that does not say, but hopefully courts will rule that it was meant to say “at as qualified in the employer’s sole discretion as the other applicants.” Even then it makes little sense why the legislature chose to impose that restriction. Why shouldn’t an employer choose, for example, to hire a veteran even if she is less qualified than another candidate simply because the company wishes to support her service?

Also, the company may do prefer such individuals only if the company, first, (1) publishes a written policy explaining its preference and (2) does so at least 14 days in advance. Why the statute was written with such technical requirements is hard to understand.

And, the very phrase “killed in the line of duty,” though dramatic, invites litigation. One can assume it was intended to include anyone who gave their life in combat. Likewise, those who have passed in training exercises are probably included. What about those who passed away as a result of injuries or illness? One doesn’t have to think very long to realize there is simply no end to the lawsuits that will be needed to litigate what that phrase means. This is a terrible disservice to service members: Why did the legislature wish to grant this status only to those who fall “in the line of duty” when all those who have served, by virtue of their very service, made the commitment to stand their lives for our freedoms? Why shouldn’t this law have granted such rights to the relatives of anyone who passed away during the term of their service? Or if the legislature thought that too generous (!), why not at most limit it to those whose passing arose out of or was related to injuries, illnesses or other experiences that occurred during their service?

This well-intentioned but poorly drafted law is an unfortunate invitation for litigation. Indeed it is so poorly drafted one has to wonder if, simply by passing it, our legislature hasn’t now actually reduced the lawful rights Colorado employers previously had to prefer veterans. Employers should consult with legal counsel before attempting to implement a policy under this new law.

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Supreme Court rules CFAA is not available in most employment lawsuits involving trade secrets, NDA’s, non-competes and non-solicits

Resolving a long-running split among the lower courts, the Supreme Court has, unfortunately for employers, held that the CFAA (Computer Fraud and Abuse Act) is not available in most lawsuits against current and former employees involving trade secrets, NDA’s, non-competes and non-solicits. The CFAA is a powerful federal law that allows enhanced remedies for companies who are the victim of someone using their computers “without authorization.” It has, in many jurisdictions, been the frequent basis for lawsuits against current and former employees who use computers and the data on computers, such as customer lists, pricing information and other trade secrets or confidential information, to compete against their employers.

Many jurisdictions had held that, as soon as an employee undertakes a disloyal act — such as violating an NDA, non-compete, or common law breach of loyalty — any subsequent use, including access, of their employer’s computers, including data on those computers, is “without authorization.”

The Supreme Court rejected that position and held, instead, that the CFAA only “covers those who obtain information from particular areas in the computer — such as files, folders, or databases — to which their computer access does not extend. It does not cover those who … have improper motives for obtaining information that is otherwise available to them.”

Why would the Supreme Court strip employers of such a valuable tool for protecting their confidential information? Remember the CFAA was only used in such situations when — and because — the employee violated the company’s rights. The majority was concerned that the CFAA also includes criminal penalties. Indeed the case arose as a criminal prosecution. The majority reasoned that permitting the CFAA to cover those whose use was unlawful due to an “improper motive” would result in a “breathtaking” number of criminal cases. A 3-justice dissent disagreed, but until and unless Congress amends the CFAA, the Supreme Court’s decision has stripped employers of a previously valuable tool.

Employers (and employees) involved in or anticipating lawsuits that include CFAA claims should immediately review the Supreme Court’s decision and its impact on their litigation.

Source: Van Buren v. U.S., case no. 19-783 (6/3/2021).

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