The Ever-Evolving INFO #9’s 2022 Updates

Heather Vickles & Carissa Davis

The Colorado Department of Labor and Employment (“CDLE”) recently published revisions to its guidance on the posting requirements of the Equal Pay for Equal Work Act (“Act”), including some examples that clarify how the CDLE will view specific hiring situations.  Interpretive Notice & Formal Opinion documents (“INFO”), which are not legally binding, are intended to provide notice and clarification on how the CDLE interprets the various statutes and regulations it implements. INFO #9, the INFO on the Act’s posing and notice obligations, has been the subject of much attention. We previously reported on the CDLE’s 2021 revisions to INFO #9. This month, the CDLE issued a revised INFO 9 providing employers with greater insight into the CDLE’s approach to the Act’s posting and notice requirements. A few of the most notable clarifications, including some of the new CDLE-provided examples, are discussed below.

Employers who use third party job-posting programs, such as LinkedIn or Indeed, cannot escape compliance with the Act; the employer must submit a compliant posting to the third party. Third parties will not be liable for non-compliant postings, as they are not “employers.”

“Help wanted” or other similar communications that do not list specific positions for hire do not necessitate a compliant posting.

If a job could be performed remotely, inside or outside Colorado, and the pay range differs based on state of performance, the posted range should detail what the employer would pay in Colorado.

When posting a job in which tips are earned, an employer cannot combine tips with the hourly rate to provide expected earnings per hour. Rather, the employer should specify the hourly rate and state that tips also are earned, or the employer can provide the hourly rate plus an estimate on tips earned each hour.

Hiring can occur without a job posting, for example, “[a]n employer has four staff, all gardeners with the same job and duties. The owner hires a fifth gardener without ever having any job posting. That is allowed. The Act does not require the employer to have a posting — only that if it makes a posting, it must disclose the compensation.”

If an employer wishes to promote an employee and the position for which s/he would be promoted would constitute a “promotional opportunity” for others, the employer may specify as much in a compliant posting. For example, “J. Doe is recommended for promotion to senior accountant. Salary $50,000-70,000; health insurance; 401k. Employees interested in this or a similar opportunity, email interest@OurCompanyHr.com.”

The confidentiality exception may allow limited advance disclosure in certain circumstances. For example:

A CEO decides to terminate the accounting director (“AD”). Before the AD is told of the termination and escorted out, the decision is known to only: (A) the CEO and their executive assistant; (B) HR staff preparing to execute the termination and start the hiring process for a new AD; and (C) Pat, one of the company’s many accountants, who is told they will be acting AD until a permanent AD is hired in 2-3 months. Other employees are told of the AD opening only after the termination and Pat’s acting AD appointment and are permitted to apply for the permanent position at that time. The employer is compliant: until the termination, the employer can keep the upcoming opening confidential, as long as “employees are told of the opportunity,” which is after termination, because “the opportunity” requiring notice is only the permanent AD job, not the acting role.

The posting and notice requirements of the Act are sometimes difficult to apply. Broad definitions, the realities of remote work, and multi-jurisdictional workplaces converge to create unique circumstances when compliance may be counterintuitive. With penalties for posting violations ranging from $500-$10,000 per violation, plus other remedies available under the law, employers are well advised to confer with experienced employment counsel to better understand the mandates of the Act.