Since the Equal Pay for Equal Work Act (“EPEWA”) became effective on January 1, 2021, some companies seeking to hire remote employees have attempted to avoid EPEWA’s job posting requirements by excluding Colorado residents from consideration. Now, the Colorado Department of Labor and Employment (“CDLE”) is taking the position that the posting requirements apply anyway.
EPEWA requires employers to include compensation and benefits in any job posting, unless the job is to be performed entirely outside of Colorado. Any employer who employs at least one person in Colorado is covered by the statute. Therefore, even though remote jobs can be performed anywhere, some companies advertising for such positions have indicated they will not consider applicants living in Colorado. The theory behind this approach is that excluding Colorado applicants makes the job one that is “performed entirely outside of Colorado” and, therefore, the employer need not disclose compensation and benefits in the job posting.
However, in a revised Interpretive Notice & Formal Opinion (INFO Notice) issued July 21, 2021, the CDLE declared that excluding Colorado applicants does not defeat EPEWA’s requirements. Under the new guidance, a job is “performed entirely outside of Colorado” only if it is tied to a physical non-Colorado worksite. Clearly taking aim at explicit efforts to avoid posting compensation and benefits, the INFO Notice states, “[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 INFO Notice also clarified that while employers are permitted to post a salary range for a job position, the range must have a finite minimum and maximum. Salary ranges expressed with an open-ended starting or stopping point, such as “$50,000 and up” or “up to $70,000,” are not permitted.
INFO Notices are not binding law, but they do express CDLE’s formal position on the interpretation of the statute. Any employer facing investigation or enforcement from the agency will have to defend any actions taken inconsistent with the positions expressed in the INFO Notices. Employers can expect CDLE to take a firm stance on this issue in its enforcement activities.
Sherman & Howard’s labor and employment lawyers are available to assist in navigating the EPEWA’s new requirements.