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Colorado wage transparency equal pay requirements, sample job postings?

Effective January 1, 2021, as previously discussed, including in this firm’s recent on-demand complimentary webinar, Colorado employers — and out-of-state employers posting within Colorado even by the Internet — face new requirements that include having to post a good faith range of wages and a general description of benefits in all job opening postings. These new laws also impose (internal) promotional-opportunity notice obligations, which in turn also include obligations to disclose wage and benefit levels. Employers are reminded they block pay-history questions, and that another recent Colorado law includes ban-the-box prohibitions that now according to recent guidance by the CDLE prohibit saying “background checks required.” How are employers complying? A first-day review of sample Internet job postings on sites such as Indeed and Monster suggest at least some employers are posting along the following lines:

Job title

Business-name

City, CO

$x-$y (where so far the most common range seems to spread across a difference ($y-$x) of $5-10,000 for salary and $2-4 for hourly positions)

General description of position, like “Acme corp  is hiring managers to oversee an exciting team of workers to do such-and-such work”

Bonus incentives available

Medical, dental and vision elections available

401(k) with company match

Is that sufficient? Are pay ranges greater than $5-10,000 too much? At least one public posting had a spread of almost $50,000, is that too much, could it be based on a “good faith’ estimate of actual pay? Must bonus disclosures include more information than that, must they state a good faith estimated dollar range? Stay tuned as postings eventually begin to face scrutiny by the CDLE and courts.

CDLE issues more new information for Colorado employers

Implementing its most recent batch of rules on a variety of topics, the CDLE just issued yet more information for Colorado employers on those topics.

Are your ready for January 1, 2021?

  • Looking for more information about the CDLE’s latest batch of rules?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Wednesday, December 16, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

Where to find the CDLE’s latest information

The Colorado Department of Labor and Employment’s latest information is available at its website.

As noted in recent posts on this blog, look for the CDLE’s latest rules on its Rulemaking page, to include the following rules:

  • Colorado Overtime And Minimum Pay Standards (“Comps”) Order #37, 7 CCR 1103-1;
  • Wage Protection Rules, 7 CCR 1103-7;
  • Direct Investigations Rules, 7 CCR 1103-8;
  • Colorado Whistleblower, Anti-Retaliation, Non-Interference, And Notice-Giving (“Colorado Warning”) Rules, 7 CCR 1103-11;
  • Colorado State Labor Relations Rules, 7 CCR 1103-12; And
  • Equal Pay Transparency Rules, 7 CCR 1103-13.

Look for its latest posters on the CDLE’s Poster page (the following list is quoted from CDLE)

  • The “Colorado Overtime and Minimum Pay Standards” (“COMPS”) poster and notice, covering wage and hour law — see COMPS Rule 7.4, Posting and Distribution Requirements, unchanged from the 2020 COMPS Order, which requires employers to display the annually revised poster (and send it to off-site employees), plus include either the poster or COMPS itself in any handbook or manual the employer has.
  • The “Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Protective Equipment” poster and notice, covering HFWA and PHEW since their enactment in July 2020 — see Colorado WARNING Rule 4, Notice and Posting Rights and Responsibilities, unchanged from the temporary WARNING Rules in effect since September 21, 2020, which requires employers to post and give employees notice of these rights.
  • Translations of posters and INFOs — to implement requirements for employers to provide posters and notices to non-English-fluent workers, DLSS in 2020 posted translations of its posters in 12 languages and Spanish translations of INFOs (on the same pages as the English posters and INFOs), with new translations of the 2021-updated posters to be posted later this month, and translations of INFOs coming thereafter.
  • With translations into Spanish and other language.

Look for informational summaries on the CDLE’s INFO page, where the CDLE provides the following information summaries (again quoting the CDLE):

  • INFO# 1: Colorado Overtime &, Minimum Pay Standards Order (COMPS Order) #37 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 1: Orden de COMPS #37] (Próximamente)
  • INFO# 2:DLSS Wage Claim Investigation Process
  • INFO# 3: Tips (Gratuities) and Tipped Employees Under Colorado Wage Law
  • INFO# 4: Meal and Rest Period
  • INFO# 5: Public Health Emergency Whistleblower Rights [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 5: Ley de Protección al Denunciante de Emergencias de Salud Pública] (Próximamente)
  • INFO# 6A: Paid Leave Under the Healthy Families and Workplaces Act, through December 31, 2020 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6A: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, vigente hasta el 31 de diciembre, 2020]
  • INFO# 6B: Paid Leave Under the Healthy Families and Workplaces Act, as of January 1, 2021 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6B: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, a partir de 1º de enero] (Próximamente)
  • INFO# 7: Payment of Wages & Required Record-Keeping
  • INFO #8: Colorado Chance to Compete Act (“Ban the Box”)

The CDLE also invites interested individuals to sign up for the agency’s email alerts.

Highlights from the CDLE’s latest information

In recent posts, this blog has summarized a number of the CDLE’s latest rules. Some of the highlights from this most recent information just posted by the CDLE implementing its new rules includes the following:

  • INFO #1: The new hourly minimum wage in Colorado will be $12.32. The new minimum guaranteed salary for exempt workers will be $40,500.
    • Employers are reminded they must distribute a copy of the COMPS poster or the entire COMPS Order 37 (new for this year) with any policies/handbooks that are being distributed otherwise. Signatures must be obtained.
  • INFO #4: The CDLE has taken a strict approach to meals and rest periods, summarized in INFO #4.
    • Employers are responsible for not only “authorizing” workers to take breaks, but they must “permit” them to do so, and CDLE explains a rest break is “authorized” if the company has an adequate policy for example, but even if “authorized,” it is not “permitted” if the employee is “unable or discouraged” to take the break. Evidence that the employee is not “permitted” to take a break may simply be the employee’s own statement that they “felt pressure from the employer not to take the break.
    • It is the employer’s obligation, not the employee’s, to track and record and keep records of employee breaks. An employer cannot simply say it assumed the breaks were being taken as “authorized” where an employee claims not to have been “permitted” to take the break.
    • When a break is missed, it counts as work time, must be paid as such, even if that triggers daily or weekly overtime.
  • INFO #5: In its rules and now in its INFO implementing Colorado’s new PHEW law (already in effect), the CDLE has take the position that an employer who provides no PPE (mask) in a time of a public health emergency may not prohibit an employee from using an unsafe mask. PHEW allows employers to prohibit employees from using masks that do not meet the company’s requirements, only if — according to the CDLE’s interpretation — the employer has first provided its own mask to the worker. Employers should consider making appropriate disposable masks available in their workforces, so that they can later prohibit inappropriate masks that employees might otherwise wish to wear.
  • INFO #7: The CDLE summarized rules regarding the payment of wages, the establishment of pay periods, payment of final wages at separation, pay statement requirements and recordkeeping requirements.
  • INFO #8: The CDLE explained Colorado’s new ban-the-box law. Companies may not state in job applications or advertisements “that a person with a criminal history may not apply,” nor ask about the person’s criminal history on an application, nor require the applicant to disclose any criminal history on the application. Additionally, the CDLE says this prohibits an employer from stating that background checks will be required. Although an employer may require background checks as part of a conditional offer of employment, that may not be stated in an application or advertisement. The CDLE explains the limited exceptions available where employers are otherwise required by law to inquire into these matters.

CDLE issues Equal Pay Transparency rules under Colorado’s Equal Pay for Equal Work Act

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Equal Pay Transparency Rules, effective January 1, 2021.  The Equal Pay Transparency Rules focus on issues related to Colorado’s new Equal Pay for Equal Work Act (CEPEWA), especially its requirements for postings related to job openings and promotional opportunities. Highlights of the rules include the following:

  • Job Postings: Rule 4.1 explains the obligation to include in “all job postings, including but not limited to promotions,” help-wanted ad’s and Internet job listings, whether for an hourly or salaried position, “a range of hourly or the salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant,” quoting CRS 8-5-201(2). The CDLE explains this requires including:
    • If “a range thereof” is posted, then it must be no broader than “the lowest to the highest pay the employer in good faith believes it might pay.” The CDLE confirms that an employer may “ultimately pay more or less,” so long as the posted ranges was at the time the employer’s good faith estimate (rule 4.1.2).
    • And, a “general description” of “any bonuses, commissions, or other forms of compensation.”
    • And, a “general description” of all benefits, except “minor perks.” The CDLE explains anything that is tax-reportable will not be considered a “minor perk.”
  • Promotional Opportunities: Rule 4.2 explains the obligation to make “reasonable efforts” to “announce, post or otherwise make known” all “promotional opportunities” to then-current current employees.
    • Content: The information that must be provided for promotional opportunities is the same as for job postings, plus job title and the “means by which employees may apply.”
      • Confidentiality: There is a limited exception for promotional opportunities where the employer can demonstrate a “compelling need to keep a particular opening confidential because the position is still held by an incumbent employee who, for reasons other than avoiding job posting requirements, the employer has not yet made aware they will be separated” (rule 4.2.5(A)). This exception seems oriented to a situation where a company has decided to begin a search to replace a high level employee, such as a C-level officer, who hasn’t yet been told they will be terminated. This exception does not excuse notice forever, it only delays the obligation to provide notice until “any employees are told” of the opportunity; at that point all employees must be told, at least who have the minimum qualifications to do the job or who do a “substantially similar” job. And, this exception is eventually extinguished in its entirety once “the need for confidentiality ends;” in other words, once the CEO is told or the rumor mill distributes the news informally, notice must be provided.
    • To Whom: That information must be provided to all employees. An employer may not limit disclosure to only qualified employees. However, an employer may, after individuals express interest, “screen or reject candidates based on (their) qualifications” (rule 4.2.4).
    • How: An employer satisfies this obligation to “announce, post or otherwise make known” if it discloses the required information in a way that employees can effectively access within the workplace, including on the company’s intranet or by posting a hard copy on a bulletin board, so long as employees are told where to find such information and, if not all employees have access to that location, it is made known to the remaining employees in some other way.
    • When: The deadline for an employer to provide this notice is “the same calendar day and prior to making a promotion decision,” quoting CRS 8-5-201.
    • “Promotional Opportunity”: What constitutes a “promotional opportunity”? This has been one of the chief areas of speculation as employers await CEPEWA’s effective date January 1, 2021. Rule 4.2.5 brings some clarity, though there will definitely be no shortage of litigation on the issue.
      • Rule 4.2.1 defines a “promotional opportunity” as any time “when an employer has or anticipates a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties or access to further advancement.” Thus a promotion is in the eye of the employee(s), not the employer, and the employee’s reason may be nothing more than a perceived sense of enhanced “status.” A promotion can exist whether it involves a position that is “existing or new.”
        • However, note, the language in rule 4.2.1 includes as an apparent requirement that the opportunity involve a “vacancy.” The importance of that word is not clear. Is it intended to mean that an increase in grade does not constitute a “promotional opportunity”? For example, assume an employee is hired into the position, Technician, at entry level, grade I, then as her skills progress and/or as she acquires seniority, she gains higher pay as a Technician level II, is that a “promotional opportunity” because there was an increase in pay and title, or is it not because there was no “vacancy” involved?
      • Rule 4.2.5(B) discusses “automatic” promotions “after (a) trial period.” No notice is required when a worker’s promotion is due to completion of a “trial period” and where the employee is guaranteed at hire, in writing, that they will be so promoted “within one year” after being hired. That guaranty can be included in any writing, to include an offer letter, an employment agreement, or a policy. The only conditions that an employer can impose are the employee’s “own performance and/or employer needs.”
        • In its prefatory Statement explaining these rules, the CDLE confirmed this exception is very limited and does not include “in-line” or “elevator” promotions. As examples of “elevator” promotions it gives the examples of elevations “from junior to senior positions, or from training to full positions.”
        • Question: Again, consider the hypothetical increase in grade (above). As noted above, there is no vacancy involved in that hypothetical, so arguably under rule 4.2.1, it does not count as a “promotional opportunity,” but does rule 4.2.5 and the prefatory Statement explaining it suggest that, even despite the lack of a “vacancy,” such an enhancement is a “promotional opportunity” for which notice must be given? As noted the progression in grade does bring with it increased compensation and arguably an enhanced sense of “status.”
        • Likewise, consider the common hypothetical that law firms will face. Typically law school graduates are hired as “associate” attorneys. Eventually, as their careers progress, some become “shareholders,” aka “partners” (depending on the firm’s legal entity, corporation or partnership). Is that elevation from associate to shareholder, a “promotional opportunity”? If so, must all law firms disclose to all employees of the firm (shareholder, associate, staff) the compensation ranges for their shareholders?  Here too there is again generally no “vacancy” involved; most firms do not limit elevations to some discrete number of vacancies in their shareholder ranks; there is however an increase in compensation and status.
      • Rule 4.2.5(C) posits an exception for “temporary, acting, or interim hires.” No promotional-opportunity notice is required before hiring a temp, or filling a vacancy with an acting or interim worker. Again though, it is a limited exception available only for 6 months and only if the person is hired without expectation to become “permanent.” “If the hire may become permanent, the required promotion posting must be made in time for employees to apply for the permanent position.”
    • Job Openings and Promotional Opportunities, Extraterritoriality: Rule 4.3 has probably received the most attention from the media. In these final rules, the CDLE walked back its proposed language regarding extraterritoriality. Now, employers need not provide either the job opening or promotional opportunity notice for “(1) jobs to be performed entirely outside Colorado, or (2) postings entirely outside Colorado.” In its prefatory statement the CDLE explains that does not include — in other words, notice is required for — each of the following situations:
      • “remote jobs” that “could be performed in Colorado” (emphasis in original),
      • “and even for (situations involving) non-Coloradoans hired for remote work (who) may move to Colorado after being hired by Colorado employers,”
      • and any “Internet posting accessible in Colorado.”

Employers in Colorado should take time to familiarize themselves with these new rules.

CDLE finalizes crop of new rules

The Colorado Department of Labor and Employment (CDLE) has finalized a half dozen rules on a wide array of topics. Employers should take care to immediately familiarize themselves with these rules, as many take effect January 1, 2021. The rules can be found on the CDLE’s rulemaking page, where the CDLE summarizes its new rules with the following table that contains links to the actual rules themselves:

Adopted Rules Clean Version Redline Version Statement of Basis & Purpose

State Labor Relations Rules, 7 CCR 1103-12

PDF PDF PDF
Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11 PDF PDF PDF
Direct Investigations Rules, 7 CCR 1103-8 PDF PDF PDF
Equal Pay Transparency Rules, 7 CCR 1103-13 PDF PDF PDF
Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1 PDF PDF PDF
Wage Protection Rules, 7 CCR 1103-7 PDF PDF PDF

Individuals interested in receiving updates from the CDLE directly when it engages in the rulemaking process, may subscribe with the CDLE here.

Look for follow-up posts on this blog highlighting some of the key developments in some of these rules.

Considering a voluntary internal audit to prepare for Colorado’s new equal pay law?

Last year I co-authored an article for the Colorado Lawyer about Colorado’s new equal pay law (the Colorado Equal Pay for Equal Work Act, “CEPEWA”), with two of CEPEWA’s drafters, Sarah Parady and Charlotte Sweeney. CEPEWA will take effect January 1, 2021. In our article, we noted that CEPEWA “CEPEWA does not grandfather current pay disparities” and further that “proof of intent to discriminate is not an element of a CEPEWA violation.” We recommended employers consider performing a voluntary internal audit to identify and eliminate any inadvertent pay disparities. Indeed CEPEWA recognizes a possible reduction of exposure if internal audits are done.

A new article was just published in the Colorado Lawyer discussing what such an audit might look like.

Source: Mind the Gap: Practical Solutions to Minimize Pay Equity Claims, by Christine Lyman, Lonnie Giamela, and LaLonnie Gray, The Colorado Lawyer, vol. 49 no. 5 (May 2020)

Reminder, Colorado employers, new ban-the-box law will take effect soon

Colorado employers are reminded that Colorado’s new ban-the-box law will take effect September 1, 2019 for employers with more than 10 employees (then September 1, 20121 for all other employers). Together with the crop of other new Colorado employment laws this year, Colorado employers should:

  • Review and revise their handbooks, workplace policies, and hiring documents accordingly.
  • Review and revise their hiring and promotion practices.
  • Consider undertaking an audit of pay levels as encouraged now by HB19-085.
  • Review wage compliance practices.
  • Train supervisor, manager and HR accordingly.

Adjusting to Pay-History Bans

HR professionals trying to adjust to the growing number of pay-history bans may want to review this interesting article from SHRM. As SHRM notes 15 states have already adopted pay-history bans. One approach the article discusses could be “complete compensation transparency” where the employer posts not only the opening, but also the pay range, job qualifications, job description and any other hiring criteria. Many employers may find that not practical. And even employers for whom it might work will still need to train hiring personnel and managers on the new do’s-and-don’t’s of these laws, for example, what to do if the employee volunteers pay history. Still as employers are considering these new laws, this article may prove a good brainstorming tool for HR professionals.

Gov. Polis signs three new Colorado laws into effect

The Denver Business Journal is reporting that Colorado Governor Polis has signed three new Colorado laws into effect. As the DBJ reports, each came with some opposition and will have impacts on employers in Colorado.

Gov. Jared Polis on Monday signed a trio of bills that he said will improve the fortunes of working-class Coloradans — even as opponents have criticized the measures will make life harder for employers and possibly steer companies away from expanding in Colorado.

These laws are:

  1. Colorado House Bill 19-1025 is a “Ban the Box” law. It restricts, with some exceptions, an employer’s ability to inquire, especially on applications, about prior criminal history.
  2. Colorado House Bill 19-1210, which permits local governments to increase the minimum wage in their jurisdictions above Colorado’s statewide minimum.
  3. Colorado HB 19-1306, which requires the Colorado Department of Labor and Employment to report “data that it currently collects regarding the call center work force, including tracking call center jobs and wage analysis of customer service employees,” quoting the bill’s official summary.

These laws now join in effect, the previously signed (May 22, 2019) HB19-085 (Equal Pay for Equal Work Act) and (May 16, 2019) HB19-1267 (criminalizing “wage theft” in cases of willful failure to pay wages owed).

Taken together, employers have good reason to immediately:

  • Review and revise their handbooks, workplace policies, and hiring documents accordingly.
  • Review and revise their hiring and promotion practices.
  • Consider undertaking an audit of pay levels as encouraged now by HB19-085.
  • Review wage compliance practices.
  • Train supervisors, managers and HR accordingly.

 

Employers should begin preparing to turn over EEO-1 pay data by September 30, 2019, details to follow from EEOC shortly

A federal trial court judge in the District of Columbia cleared the path for the EEOC controversial rule requiring employers to turn over two years of pay data by September 30, 2019. The court’s order follows a recent decision in which the judge provided further reasoning. In short the court held that, in this battle between two federal agencies (the EEOC and the OMB), the Trump administration’s OMB had failed to establish a basis for freezing the Obama-era EEOC’s pay-data collection rule. That Obama-era rule (2016) added to the longstanding workforce data requirements for an EEO-1 (which the EEOC now calls the “Component 1” data requirements), a requirement to submit pay data as well designed to demonstrate pay gaps related to gender, race, and ethnicity (now called the “Component 2” data requirements).

Which two years of data will be required and when can an employer start submitting its EEO-1? The judge gave the EEOC leeway to decide, but ordered it to post on its website an initial decision by April 29 and the final decision on May 3. The EEOC’s website states it is already “working diligently on next steps in the wake of the court’s order.” The EEOC notes its portal for submission of Component 1 data is already open.

Employers will want to visit the EEOC’s website following April 29 and again following May 3, at least, for further information on this breaking development.

Supreme Court reverses Ninth Circuit because … “Federal judges are appointed for life, not for eternity”

The Supreme Court reversed the Ninth Circuit’s decision in a potentially landmark Equal Pay Act case, because … “Federal judges are appointed for life, not for eternity.” In this per curiam decision, the Supreme Court, not surprisingly, held that a judge needs to be alive to issue a ruling in a case.

How could the Ninth Circuit have thought otherwise? It was an exceedingly controversial case. The Ninth Circuit would have split evenly without the deceased judge’s vote, so the Ninth Circuit, oddly, decided to go ahead and count his vote. In fairness he had expressed his intent to vote one way, and had actually authored an opinion accordingly. He unfortunately passed away though before the opinion was issued. The Supreme Court held that the Ninth Circuit erred by continuing to count his vote (in this case and others). The Court explained that a judge’s vote cannot be counted until an opinion is filed, especially because “a judge may change his or her position up to the very moment when a decision is released.”

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death.  But federal judges are appointed for life, not for eternity.

The underlying case is very controversial. As explained in a previous blog post, the issue has the potential to bring a pay-history ban to all 50 states by way of federal common law, by interpreting the longstanding Equal Pay Act as effectively banning inquiries and consideration of pay history.

per curiam decision is a decision issued by a court with more than one judge (like the Supreme Court and other appellate courts) that is authored by the court itself, without identifying one or more individual judge’s contributions to the writing of the opinion or even votes in the case. It is not signed by anyone judge (though individual judges may, if they choose, sign dissents).

Source: Yovino v. Rizo, 586 U.S. —, case no. 18-272 (2/25/19)

Pay history bans coming, at a federal level, by way of the Circuit Courts?

A growing number of state and local governments prohibit asking applicants about their pay history or using prior employer pay histories as a basis for setting employee pay. Two Circuit Court cases suggest that such a ban may be coming, not by way of state and local legislation, but at a federal level under currently existing federal laws known as Title VII and the Equal Pay Act.

The Circuit Courts are the nation’s federal appellate courts. They are divided (and numbered) by region. They are for practical purposes generally the highest courts in the land, just beneath the Supreme Court of the United States. Very few cases result in Supreme Court review; the Circuit Courts resolve the vast bulk of federal appellate litigation without cases ever rising to the Supreme Court.

Pay history bans are growing across the country because advocates for equal pay, particularly between men and women, contend that one reason women earn less than men in many positions, is simply that women tend to have previously earned less than men in prior positions. In other words, they contend it is a self-perpetuating cycle.

In one case, the Ninth Circuit held last year, in 2017, that, consistent with its precedent, an employer may set pay levels purely on the basis of pay histories. However last summer the Ninth Circuit withdrew that decision and ordered the matter reheard en banc (by the entire bench of its judges). The case is pending reconsideration.

In the other case, the Eleventh Circuit just ruled in a Georgia case that an employer was not entitled to summary judgment, in other words, it would have to explain itself to a jury, where the female plaintiff argued she was underpaid compared to her male predecessor. The Eleventh Circuit case did not go so far as to hold that pay histories cannot be considered. It simply held, on the basis of the record before it, that pay histories were not themselves enough to warrant ruling for that employer. The Eleventh Circuit’s decision may be limited to its facts in that, there, the company’s HR manager had testified to general female-male pay disparities at the company and further that the company’s general manager had made an anti-female remark.

Employers should consider monitoring pay history bans.

Source: Rizo v. Yovino, case no. 15-372 (9th Circuit) (case pending reconsideration en banc); Bowen v. Manheim Remarketing, Inc., case no. 16-17237 (11th Cir. 2/21/18).