Tag Archive for: pay equity
CDLE publishes searchable index of its citations and appealsUncategorized
HR professionals and employment lawyers will have noticed that the CDLE has become increasingly active in Colorado employment law issues in recent years. Are you curious what the agency is actually doing as it enforces this crop of Colorado laws? The CDLE is helpfully publishing a searchable index of its citations and appeals.
Available keyword searches include the following:
|Advances||Business Closure||Division Authority||Final Wages||Pay Periods||Retaliation – PHEW||Tip Posting Requirement|
|Agreed Wage/Rate||Calculations of Wages/Hours||Division Notices/Filings||Fine||Pay Statements||Retaliation – Wages||Tip Sharing / Notice Requirement|
|Alleged Waiver||Commissions||Draws||Handbooks/Manuals||Penalties||Retaliation Only||Tips/Gratuities|
|Apparent Authority||Compensable Time||Employee/Contractor||Joint Employment||Physical Disability Sub-minimum Wage||Settlement||Vacation Pay / PTO|
|Bankruptcy||Compliance Order||Employee/Volunteer||Local Minimum Wage||Records of Time Worked||Sick Pay – 2020||Willful|
|Benefits||COMPS EAP Duties Test||Employer Coverage||Meal Break/Meal Periods||Reduction in Pay||Sick Pay – After 2020|
|Bonuses||COMPS Rest Periods||Deductions||Minimum Wage||Reprisal||Staffing/Temp Agencies|
|Bounced Check||COMPS Tipped MW 80/20 application||Employer Individual Liability||Notice of Rights & Posters||Retaliation – COMPS||Statutory Interpretation|
|Breaks/Rest Periods||Contract||Equal Pay – Transparency||Overtime||Retaliation – HFWA||Termination|
|Burden of Proof||Direct Investigation||Exemptions||Paid Time Off (PTO)||Retaliation – Other||Third-Party Payments|
An example of the kind of information that might be of interest to employers is this recent Notice of Fine For Non-Compliance With Division Orders And Order To Respond issued to one employer apparently based on the CDLE’s own review of the employer’s public job posting, in light of recent Colorado job-posting transparency requirements. There the CDLE discusses its view of specific posting requirements and the proper level of related fines.
The CDLE deserves credit for making this index available and searchable. Employers, individuals and their counsel will benefit from being able to search and find how the CDLE is applying the many laws it now has jurisdiction to enforce.
More states adopt pay transparency laws following Colorado’s leadUncategorized
Following Colorado’s groundbreaking (and highly controversial) pay transparency law, which includes a requirement that job postings disclose a range of wages and benefits (among other things), New York has adopted a similar law effective May 15, 2022, as have Connecticut, Nevada and (effective 1/1/2023) Rhode Island. California, Maryland and Washington have also adopted similar laws with various conditions, depending on the particular state’s laws, that trigger the obligation to disclose the range upon request by an applicant or employer, or by request after an initial interview, or by request after a job offer. Employers should anticipate such laws will be adopted by additional states.
CDLE finalizes crop of new rulesUncategorized
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
|Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11|
|Direct Investigations Rules, 7 CCR 1103-8|
|Equal Pay Transparency Rules, 7 CCR 1103-13|
|Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1|
|Wage Protection Rules, 7 CCR 1103-7|
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?Uncategorized
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 soonUncategorized
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 BansUncategorized
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.
Employers should begin preparing to turn over EEO-1 pay data by September 30, 2019, details to follow from EEOC shortlyUncategorized
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”Uncategorized
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.
A 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)
California joins growing movement prohibiting pay history inquiriesUncategorized
California has joined a growing number of jurisdictions that prohibit employers from asking applicants about their pay history, with the enactment of a statewide law, effective January 1, 2018. This new law will prohibit employers from asking applicants about their pay history or even relying upon information about an applicant’s pay history in setting a position’s pay (with some exceptions including the ability to consider such information if it was disclosed “voluntarily and without prompting”). The new law requires employers to provide an applicant, upon request, the preset wage scale for the position.
Other jurisdictions with similar restrictions include Delaware, Massachusetts, Oregon, Puerto Rico, as well as New York City, Philadelphia and San Francisco.
This is an evolving area of the law, and employers are advised to consult with legal counsel to determine the requirements, if any, in each jurisdiction where they hire and employ workers.
L2S Legal, LLC
William “Bill” C. Berger, Esq.
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