Colorado employers face additional requirements as of January 1, 2024 to comply with the amendments to Colorado’s Equal Pay for Equal Work Act (EPEWA), which originally took effect in 2021.  Most notably, employers will be required to put application deadlines in their external job postings and internal promotional notices.  Within 30 days of every hire or promotion company-wide, employers will be required to notify any Colorado employee with whom the selected candidate will regularly work of the new hire or promotion.  Employers also must inform employees in positions with a defined, objective career progression of the requirements for advancement and what their pay will be if they advance. The Colorado Department of Labor and Employment (CDLE) has issued final regulations and a new Interpretive Notice & Formal Opinion (“INFO”) # 9A detailing the agency’s view of the amendments’ requirements, which are covered in additional detail below.

“Job Opportunity” Posting Requirements

Effective January 1, 2024, employers with at least one employee working from Colorado must make reasonable efforts to announce, post, or otherwise make known each job opportunity to all Colorado employees on the same calendar day and prior to the date on which the employer makes a selection decision. A job opportunity is “a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts.” The statute defines a vacancy as “an open position, whether as a result of a newly created position or a vacated position.” The CDLE refers to these notices as “job opportunity notices” in the new regulations.¹

Job opportunity notices (which include any job postings the employer may choose to post externally, such as on a public job board) must be made available to Colorado employees as described above regardless of where the job opportunity is to be performed, and regardless of whether any Colorado employee would be qualified for the job opportunity.

Job opportunities that are to be primarily performed in Colorado, or that could be performed in Colorado (i.e., remote jobs), must also include information on compensation, benefits, and the application process, specifically:

1. the hourly rate or salary compensation (or a range thereof) that the employer is offering for the position;
2. a general description of any bonuses, commissions, or other forms of compensation that are being offered for the job;
3. 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;
4. the application deadline; and
5. how to apply for the job opportunity.

Employers may satisfy the job opportunity notice requirements by linking to information located elsewhere (such as a company website) within the job notice.

While the text of the statutory amendment says job opportunities must include the “anticipated closing date,” the final regulations instead require job postings to include the “application deadline.” Evergreen postings are permissible and excluded from the requirement to provide a deadline if the posting states that there is no deadline because the employer accepts applications on an ongoing basis. Application deadlines may be extended so long as the original deadline was set as a good-faith expectation or estimate and the posting is updated promptly when the deadline is extended. The rules do not address whether it would be permissible to shorten a deadline after an initial posting.  Given that most employers do not currently set application deadlines and instead keep postings live until they fill the position, this requirement may add significant administrative burden to recruiters, human resources personnel, and managers responsible for job postings.

An employer makes “reasonable efforts” to comply with the notification requirements with “any method(s) by which all covered employees (1) can access within their regular workplace, either online or in hard copy, and (2) are told where to find required postings or announcements.” If a particular method reaches some but not all employees, such as an online posting not accessible to those lacking internet access, an alternative method must be used for such employees.

“Post-Selection” Notification Requirements

After selecting a candidate for a job opportunity, employers must give existing Colorado employees, with whom they intend the selected candidate to work regularly, the following information: (1) the name of the selected candidate, (2) their former job title (if applicable), (3) their new job title, and (4) information on how employees may demonstrate interest in similar job opportunities. The CDLE refers to these notices as “post-selection notices.” The regulations clarify that the phrase “work with regularly” means selected candidates who, as part of their new job responsibilities, will either (1) collaborate or communicate about their work with the Colorado employee at least monthly, or (2) have a reporting relationship with the Colorado employee (i.e., supervisor or supervisee). Employers may comply by providing the post-selection notices to a broader range of, or all, employees.  

Post-selection notices must be provided within 30 days after the selected candidate starts work in their new role. Employers may elect to provide separate notices after each individual selection, or a combined notice with multiple selections at once, so long as notice is actually provided within 30 days of each selection. The final regulations and INFO clarify that only Colorado employees need receive the post-selection notices, but such at notice is required concerning any new hire or promotion company-wide if that selected candidate will regularly work with an employee based in Colorado.

The final regulations contain an exception to the post-selection notice requirements forbidding employers from disclosing a selected candidate’s name and/or prior job title if doing so would  violate a law or if a selected candidate voluntarily requests to be exempted from the notice. Even in those circumstances, however, employers must disclose the selected candidate’s new title and information on how to express interest in similar roles even if they withhold a selected candidate’s name and former job title.

The final regulations also require the post-selection notice to be in writing. As with the job opportunity notice requirements, an employer makes “reasonable efforts” to comply with notification requirements with “any method(s) by which all covered employees (1) can access within their regular workplace, either online or in hard copy, and (2) are told where to find required postings or announcements.” If a particular method reaches some but not all employees, such as an online posting not accessible to those lacking internet access, an alternative method must be used for such employees.

Exceptions

Employers of 15 or Fewer, All-Remote, Colorado Employees

Effective January 1, 2024, employers with physical locations exclusively outside Colorado with fewer than 15 Colorado-based employees, all of whom work remotely, will be required to include remote job opportunities only within their job opportunity notices—not all job opportunities available company-wide. This provision will sunset July 1, 2029.

Career Progression and Career Development Exceptions

Both “career progression” and “career development” promotions are now excluded from the definition of “job opportunities” in the statute and regulations—meaning they do not trigger the obligation to provide job opportunity notices or post-selection notices. 

Career development promotions do not trigger posting or notice requirements. The regulations clarify that career development means “a change to an employee’s terms of compensation, benefits, full-time or part-time status, duties, or access to further advancement in order to update the employee’s job title or compensate the employee to reflect work performed or contributions already made by the employee[,]” C.R.S. § 8-5-101(1.3), but only where such existing work or contribution was part of the employee’s existing job and was not within a position with a current or anticipated “vacancy” as defined under the law. 7 CCR 1103-13, Rule 2.1 (2024).

Career progression promotions trigger their own notice requirements. Career progression means “a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.” For those promotions, an employer shall disclose and make available to all eligible employees (consistent with the methods for reasonable efforts, described above), in writing, the requirements for career progression, in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. Eligible employees are those in the position that, when the requirements in the notice are satisfied, would move from their position to the other position listed in the notice as a “career progression.”

Geographic Limitations

Job opportunity, post-selection, and career progression notices must be provided to Colorado employees only.  However, the notices themselves must contain information about job opportunities, or selected candidates, outside Colorado so long as those opportunities or candidates meet the required criteria.  Job opportunities that are to be performed entirely outside Colorado, or are physically located entirely outside Colorado, need not contain the five items of information regarding compensation, benefits, and deadlines specified in the “job opportunity notices” section above.

AINT Positions

The final regulations clarify that there is no need for an immediate job opportunity notice where the position necessitates immediate hire into an acting, interim, or temporary role (dubbed by the regulations as “AINT” roles), where the AINT hiring is not expected to be permanent, and the position was not held any time in the preceding 12 months by another AINT hire for which there was no job opportunity posting. To qualify for this exemption, the same or a substantially similar position must not have been held any time in seven or more of the preceding 12 months by another AINT hire for which there was no job opportunity posting, except that if an AINT hire separates after more than seven months from a position expected to last up to nine months, then a posting is not required for a replacement to finish their term.

Confidential Replacements

The amendments to the law maintain pre-existing exceptions to the job opportunity notice requirements for confidential replacements of current employees unaware of their separation. However, this is a limited exemption as employers must “promptly” comply with all notice requirements once the confidentiality need ends (i.e., the incumbent employee learns of their impending separation), and may not selectively inform other employees about the job opportunity during the confidentiality period—if any employees are told of the opportunity, all employees must be told who either (a) meet the minimum qualifications or (b) have a job “substantially similar” (within the meaning of C.R.S. § 8-5-102) to any employees being told of the opportunity.

Employee Opt-Outs

Employees may opt out of being included within a post-selection notice if they inform their employer in writing, on their own initiative and voluntarily, that they believe disclosing their name and/or former job title would put their health or safety at risk. Even in this circumstance, employers must provide a limited post-selection notice covering the selected candidate’s position, disclosing that the relevant position has been filled and how existing employees may express interest in future job opportunities.

Next Steps

By January 1, 2024, employers with Colorado employees should add application deadlines to job postings for positions that can be filled in or from Colorado (including remote positions) and develop a process for updating those postings with extended deadlines when necessary or removing the posting when the deadline passes.  Colorado employers should also determine an appropriate method to disseminate the new post-selection notices to their Colorado employees, which could be a weekly, bi-weekly, or monthly intranet notice or email announcement (if accessible to all employees) or more targeted individual written communications to particular Colorado employees.  Finally, employers should evaluate whether any of their promotions falls under the career development or career progression definitions in the amended law, and therefore no longer needs to be posted prior to the employer’s making a promotion decision. For career progression positions, employers should disseminate the required information about advancement.