As a result of the pandemic, companies have been posting more jobs for remote work that may be performed in any state throughout the country. But a recent decision concerning the law in Colorado may cause employers to rethink this approach.
Effective January 1, 2021, the Colorado Department of Labor and Employment issued Equal Pay Transparency Rules. The Rules require employers to include the compensation range and a general description of benefits in any postings for jobs to be performed in Colorado, or for jobs that may be performed remotely from anywhere. C.R.S. § 8-5-201(2) (requiring employers to disclose the “hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant”).
The Equal Pay and Transparency Rules have an expansive reach because they cover all public and private employers that employ at least one person in Colorado.
The Rules have generated some confusion with the increased number of companies around the country posting jobs for remote work. Colorado recently provided some clarification. Employers do not need to disclose compensation and benefits information for jobs to be performed completely outside Colorado. The disclosure requirements also do not apply to employers with no Colorado employees.
Companies have also argued that the Rules create an administrative burden. But a federal judge recently declined to enjoin the Equal Pay Transparency Rules and allowed the Rules to stand. Rocky Mtn. Assoc. of Recruiters v. Moss, — F. Supp. 3d –, 2021 WL 2156228 (D. Colo. May 27, 2021).
Employers that choose to post jobs on the internet must provide certain information depending on where the work is performed:
|Job Location||Posting Must Contain Compensation/Benefit Information|
|Performed in Colorado||Yes|
|Remote and may be performed in Colorado||Yes|
|Performed solely outside Colorado||No|
While Colorado’s Equal Pay Transparency Rules were intended to close gender wage gaps and offer greater pay transparency for employees, many companies have begun excluding Colorado workers from job postings. To avoid disclosing compensation and benefits information, several employers posting remote jobs have excluded Colorado workers, indicating that the jobs may be performed anywhere except Colorado.
Not all companies have excluded Colorado workers from job postings. Some have included pay information specific to Colorado on postings for remote jobs. For example, a posting may note the compensation range for the job in Colorado and note that the overall compensation could vary.
With the Equal Pay Transparency Rules in place, it will be important for employers to consider the scope of any postings for remote work to ensure compliance with Colorado’s pay disclosure requirements.
Reach out to a Larson • King attorney if you have any questions about the information above.