The 2021 Colorado Legislative Session produced several new employment regulations that are essential for employers doing business in Colorado to understand and implement. Specifically, the Colorado Equal Pay for Equal Work Act and the Colorado Equal Pay Transparency Rules, promulgate additional requirements for job postings and promotion announcements. In addition, Colorado also recently expanded its definition of sexual orientation as a protected class as well as allowing preferential hiring of veterans and their spouses within certain limitations.

Colorado Equal Pay for Equal Work Act & Colorado Equal Pay Transparency Rules

The increase in equal pay laws is proving an ongoing trend in states across the nation, but Colorado went a step further in its latest legislative session. Colorado law now requires all job postings to disclose the hourly or salary rate, or at minimum a realistic and good faith statement of the range of pay for the position. In addition, benefits must also be listed in the posting. The new posting requirements apply to any business that has at least one employee in Colorado, even if only a remote employee. Thus far, no other state has mandated this detail in a job posting. The spirit and articulated purpose of the law is that requiring businesses to participate in transparency about pay will support the leveling of the playing field between men and women in the same positions and make pay equality easier to attain.

Employers in opposition to this new law, however, point to the necessity of keeping salary and benefits confidential as they recruit new talent in highly competitive markets. Many employers have sought to skirt the law by excluding Coloradans from eligibility for the positions. For example, the job posting advertises that applications are welcome except from prospects residing in Colorado. These efforts prompted the Colorado Department of Labor to issue Interpretive Notice & Formal Opinion #9, which further explains the requirements and purpose behind the law. This Opinion lays out employee rights and employer obligations under Part 2 "Transparency in Pay and Opportunities for Promotion and Advancement" (C.R.S. § 8-5-101 et seq.) This opinion is an attempt to clarify and states that the Act applies to all employers with (1) work tied to Colorado locations (2) remote work performable anywhere, but not (3) work performable only at non-Colorado worksites.

Each job posting must include the following:

(A) the hourly rate or salary compensation, or a range thereof, that the employer is offering for the position. (The pay rate or range must be based on a good faith estimate. Statements such as "Up to $50,000" or "$30,000 and up" are not sufficient);

(B) a general description of any bonuses, commissions, or other forms of compensation that are being offered for the job; and

(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 (i.e. on-site gym). Electronic postings may provide a link to more details on benefits.

Of note, the new law does not require employers to actually post jobs or have job postings with one exception (addressed in the Promotional Opportunities section below). Instead, it mandates that the employer include the compensation and benefits information for the job in the post.

Promotional Opportunities in Job Postings

Job posting regulations aren't the only change in Colorado employment law this session, In addition, employers may need to handle promotion announcements differently than has been their normal practice in the past. Under the law, "employers must make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision." C.R.S. § 8-5-201(1).

Notably, promotional opportunities are considered job postings for purposes of this law and must include compensation and benefits information. An employer makes "reasonable efforts" and satisfies this new requirement either by posting it in a location where all relevant employees can access the information, or by telling employees where to locate all required announcements and promotional notices for the company. The notice must be supplied in such a manner to allow all employees a reasonable amount of time to apply should they chose to do so.

Th Colorado Department of Labor and Employment also issued a notice regarding compliance with the Equal Pay and Equal Transparency Acts in Colorado. It reiterates that remote jobs are covered by the new laws and that an employer cannot escape the implications of the law simply by stating that they do not have intent to hire Coloradans. Although the notice does extend grace to employers and recognizes that it will take employers time to fully understand and implement these new regulations, it also expects businesses to implement these changes as soon as possible. The initial step for the Department will be to reach out to employers in violation and educate them as well as assist them in bringing their job postings into compliance as necessary. After the initial education phase, however, companies still failing to comply will be assessed fines ranging from $500-$10,000.

Expansion of Definition of Sexual Orientation as a Protected Class

On May 20, 2021 Colorado Governor, Jared Polis, signed HB 21-1108 into law. This new legislation is known as the Gender Identity Expression Anti-Discrimination Act and expands the nondiscrimination provisions available to persons who seek protection from discrimination on the basis of their sexual orientation. Colorado anti-discrimination laws previously recognized race, color, creed, religion, disability, sexual orientation, marital status, familial statute, national origin and ancestry as protected classes. Effective later this month, the terms "gender identity" and "gender expression" will also be included as protected categories.

"Gender expression" is defined as an individual's way of reflecting and expressing the individual's gender to the outside world, typically demonstrated through appearance, dress, and behavior. In short, it is how a person publicly expresses or presents their gender. This expression may also include body language and voice. Pronouns are also used to as a way to express gender. "Gender identity" is defined as an individual's innate sense of the individual's own gender, which may or may not correspond with the individual's sex assigned at birth.

The new law also expands the definition of sexual orientation. Before the rewriting of the law, sexual orientation was defined as, "an individual's orientation toward heterosexuality, homosexuality, bisexuality or transgender status or another individual's perception thereof." In the new version of the law, the definition now reads, "an individual’s identity, or another individual's perception thereof, in relation to the gender or genders to which the individual is sexually or emotionally attracted and the behavior or social affiliation that may result from the attraction." Given these changes, businesses may not discriminate in hiring, promotion, or any other terms or conditions of employment based on a person's gender expression or identity, in addition to their sexual orientation. The new definitions are effective beginning September 7, 2021.

Employers should consult legal counsel if necessary to clarify requirements and ensure that their current practices are in line with the expanded requirements.

Preferential Hiring of Veteran and Spouses of Veterans Allowed

The Veterans Hiring Preference Law was signed into law on June 23, 2021. This law creates a statutory basis to allow private employers to show preference to veterans in making hiring decisions as well as in recruiting for available positions. Specifically, the law permits an employer to give preferential treatment to a veteran of the armed forces, National Guard, and the spouse of a service member killed in the line of duty if the date of hiring is within five years after the death of the service member. The only caveat is that the veteran applicant must be as qualified as the other applicants submitting applications for the job.

By using this site, you agree to our updated Privacy Policy.