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?