In my column in a June issue of the Business Times, I reviewed the basics of Colorado’s new Equal Pay for Equal Work Act (EPEW). 

EPEW is split into two parts. The first part prohibits employers from paying different wages on the basis of sex or sex plus another protected status to employees who perform “substantially similar” work. The second part imposes new requirements on employers to promote pay transparency, including posting and promotion requirements. 

Soon after my column was published, news stories appeared in Colorado and national publications reporting the trend of employers to post remote jobs welcoming applicants from any location except Colorado.  

State legislators who supported EPEW responded with resistance. According to a Denver Post story, State. Sen. Jessie Danielson, an EPEW sponsor, described efforts to avoid the requirement to post compensation ranges as “shameful.”  

Software engineer Aaron Batilo developed a website located at www.coloradoexcluded.com to expose national employers attempting to bypass Colorado job posting requirements.

How prevalent is the problem? In a webinar offered by the Colorado Division of Labor Standards and Statistics (CDLSS) in July, the CDLSS stated only one investigation was open, and its own audit of more than 200 Indeed postings showed only one excluded Colorado applicants.  

But when the Wall Street Journal interviewed Batilo in June, his website showed 46 employers excluding Coloradans from applying for jobs. That number increased by June 26 to a total of 193 job listings for remote work positions from 98 companies. On Aug, 4, the number jumped to 445 total job listings from 146 employers.

In the July webinar, the Colorado Department of Labor and Employment, of which the CDLSS is a part, stated its enforcement position on the job posting requirements of the EPEW and its regulations.  

Several highlights stood out. First, the CDLSS stated that whether a company placing a job add has at least one employee in Colorado or no Colorado employees, the employer isn’t required to post compensation information if the job is “tied to a location outside of Colorado.”  

But “omitting compensation by posting that a remote job is for anyone, anywhere, except for Coloradans” is “not compliant with the act.” The CDLSS pointed out that EPEW regulations can’t add exceptions to the statute itself.  However, the CDLSS stated the EPEW allows one “implied exception” — a job that “truly must be done out of state” is “arguably” beyond the reach of the act.  

Unfortunately, this implied exception is narrower than CDLSS regulations. Rule 4.3 (B) states: “The compensation posting requirements (section 201(2)) do not apply to either (1) jobs to be performed entirely outside Colorado, or (2) postings entirely outside Colorado.” By the plain language of the rule, the compensation requirements don’t apply to jobs that will be performed outside Colorado, not to a job that cannot be performed in Colorado. 

But as the golden rule states: He who has the gold makes the rules. So, any employer wishing to exclude Colorado applicants from remote jobs must understand the division that makes the rules also enforces the rules and will take enforcement action in the future.

No one disagrees an employer with no Colorado employees at the time of the job posting is beyond the reach of the EPEW.  And an employer with any employees physically in Colorado must post compensation information for jobs to be performed physically in Colorado or remote jobs that can be performed in Colorado.

Here are other highlights from the July webinar:

Employers aren’t required to post external job opportunities. But if an employer chooses to do so, the job listing must include the salary or salary range as well as a summary of benefits, including health coverage, retirement, paid leave and any other benefits that must be reported as income for federal income tax purposes. 

Employers may satisfy the requirement to include a benefits summary by including a hyperlink or URL to the benefits summary. But this provision applies only to online postings, not print advertisements.

Employers must post all promotional opportunities to all employees on the same day.  The employer may post promotional methods by any method so long as employees can access the opportunity at their regular workplace, either online or in hard copy and are informed where to find required postings or announcements, If a method reaches some but not all employees, the employer must use an alternative method to reach those employees.

The CDLE continues to focus on obtaining compliance from employers who violate Part 2 of the EPEW on pay transparency requirements. The CDLE waives fines for employers who come into compliance after the first violation.  But employers can expect this forbearance to end should employers not voluntarily comply.

The CDLE includes several guidance documents on the EPEW pay transparency requirements on its website.