Amendments to the Colorado Equal Pay for Equal Work Act (“EPEWA”) will go into effect on January 1, 2024. The EPEWA, which went into effect in January of 2021, prohibits Colorado employers who might discriminate against employees based on sex by paying less for substantially similar work, i.e., skill, effort, or responsibility. To that end, the EPEWA, which since its inception has required external or internal job postings to include salary or wage range, compensation and benefits, and the application deadline for job opportunities and promotions, will now add additional burdens on Colorado employers. Namely (1) requiring internal notifications regarding all job opportunities, not only promotions, and (2) mandating certain notifications after an applicant has been selected for an opportunity. Colorado employers were already grappling with how to comply with the EPEWA’s requirements, and these new rules may have made it harder.

Fortunately, the Colorado Department of Labor and Employment (“CDLE”) has recently revised the Equal Pay Transparency Rules (“EPT”) to provide some guidance on how the EPEWA will be enforced. Specifically, the CDLE has issued the Interpretive Notice and Formal Opinion (“INFO”) #9A, that while not legally binding, will provide employers seeking to comply with the EPEWA with valuable insight on complying generally and when one of the exceptions of the EPEWA might be applicable.

For example, under the EPEWA, if a promotion qualified as a “career progression,” the EPEWA and EPT would not consider it a job opportunity requiring separate notice. However, Colorado employers were unclear on what kind of promotion would be considered a career progression and furthermore, whether any subjectivity in a decision to promote would qualify as a career progression. INFO #9A answers this question clearly, “no!” A promotion based on subjective factors is not a career progression. In the CDLE’s view, a career progression is an advancement based on objective criteria, i.e., time in a role, passing standardized examinations and so on. If subjectiveness is a part of the decision the CDLE considers it a promotion which requires internal and external notice.

INFO #9A also gives employer insight on other requirements and exceptions to the EPEWA, such as:

• qualifying for the career development exception;
• qualifying for the acting, interim, or temporary (“AINT”) exception;
• post – selection notice; and
• details regarding compensation disclosures.