On November 2, 2020, the Colorado Department of Labor and Employments’ Division of Labor Standards and Statistics held a public hearing to solicit comments about Colorado’s proposed Equal Pay Transparency Rules.  The proposed rules will implement Colorado’s New Equal Pay for Equal Work law that goes into effect January 1, 2021.  The hearing focused on the rules concerning pay information in job postings and announcements of promotional opportunities.  The Division is continuing to collect written comments and will publish final rules on or before November 10^th.

The comments presented during the hearing were focused on the following primary themes:

• Providing clarity around the term “promotional opportunity.”  Specifically, that the rules should clarify that such an opportunity should only include competitive promotions and not “in line” or experience-based progressions.

• The rules regarding required postings are impractical in that they do not contemplate the need for confidential job searches or use of executive search firms.

• The rules could put Colorado-based companies at a competitive disadvantage as compared to non-Colorado companies, and will require disclosures of proprietary compensation strategies to competitors who may not be under same rules.

• The rules could lead to national employers shifting work away from Colorado and/or restricting remote work so that employees could work anywhere, but Colorado.

• The proposed requiring compensation and benefit information on job postings outside of the state and/or for jobs that will be performed outside the state exceed the Department of Labor and Employment’s authority and the rules should be limited to jobs located in Colorado.

There was also a discussion of the potential legal challenges being contemplated by employers, including potential violations of the U.S. Commerce Clause based on conflicting state laws.

The Division has received a lot feedback on these proposed rules (verbal and written).  We will be watching closely for the final rules to be published on or around November 10.