Fight Wage Discrimination in Colorado

Colorado became the first state in the U.S. to require employers to disclose compensation in their public job postings after Senate Bill 19-085 took effect at the beginning of 2021. The state law, known as the Equal Pay for Equal Work Act, or EPEWA, is intended to combat gender-based wage discrimination by ensuring that people are paid equally for substantially similar work.

Employers can face steep consequences for violating the EPEWA. In this article, you will learn about your employee rights under the Equal Pay for Equal Work Act, as well as the available damages if your employer violates the law.

Talk to a Wage Discrimination Attorney

If a court finds that your employer violated the Equal Pay for Equal Work Act, you may be entitled to up to three years of back pay and double damages. The wage discrimination attorneys at Robinson & Henry will fight to recover every cent you’re owed. However, we can only help if you file a claim within two years of the alleged wage discrimination. Don’t wait — call 303-688-0944 today to begin your case assessment.

A Look at Colorado’s Equal Pay Laws

What the Equal Pay for Equal Work Act Aims to Accomplish

The EPEWA applies to any public or private entity employing at least one person in Colorado. The Act is designed to prevent pay disparities among men and women. It also prohibits companies from relying on wage history to set salaries for prospective employees.

First and foremost, the EPEWA prohibits employers from paying one employee a wage rate less than the rate paid to an employee of a different sex, or sex plus another protected status, for substantially similar work. Other protected statuses include:

• race
• religion
• national origin
• pregnancy
• age
• sexual orientation (including transgender status)
• physical or mental disability

The wage rate is defined in Colorado Revised Statute § 8-5-102 as all compensation, including hourly wages, salaries, and all other compensation, such as bonuses or commissions.

The Wage Act Permits Some Exceptions

The EPEWA allows wage disparities between men and women only in certain circumstances. An employer must be able to prove that the wage differential is based on one of the following conditions:

• a seniority system
• a merit system
• a system that measures earnings by quantity or quality of production
• the geographic location where the work is performed
• education, training, or experience reasonably related to the work
• travel that is a regular and necessary condition of the job

Additional Rules Employers Must Follow

Talking About How Much You Make

Under the EPEWA, your employer cannot prevent you from discussing your own compensation information with your coworkers. They also cannot require you to sign a waiver preventing you from discussing your compensation.

A Prospective Employee’s Previous Wage

Employers are prohibited from asking about a job candidate’s wage history during an interview. They also cannot rely on that history to determine a wage rate.

Additionally, your prospective employer cannot discriminate or retaliate against you for failing to disclose your wage history.

Job-Posting Notices

The EPEWA requires employers to make reasonable efforts to announce or post promotional opportunities or job vacancies to all employees, with certain limited exceptions. We’ll discuss job postings further in this article.

What is a promotional opportunity?

A promotional opportunity exists “when an employer has or anticipates having a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties, or access to further advancement.” CDLE Equal Pay Transparency Rules

What is a vacancy?

The Colorado Department of Labor and Employment, or CDLE, clarified that a vacancy exists where a position the employer intends to fill is open or is held by a departing employee, such as when an employee submits a resignation notice.

A vacancy also exists where the employer:

• adds a new position
• gives an existing employee a new position, including a title change and/or a change in authority, duties, or opportunities

Job Posting Requirements in Colorado

These Details Must be Included in a Job Listing

When a Colorado employer posts a job on platforms such as LinkedIn or the employer’s website, it must include the following information:

1. the hourly rate or salary, or a pay range. Employers should note that the range must include both the lowest and highest pay the employer genuinely believes it might pay for the job. Ranges cannot be left open-ended on job postings. For example, an employer cannot post “$70,000 and up” or “up to $70,000.”
2. a description of benefits such as health insurance, retirement benefits, and paid time off
3. a description of all other compensation, such as bonuses and commissions
4. how to apply for the position

How Employees Must be Informed About Possible Advancement

Employers must notify all employees for whom a vacant position would be a promotion. Your employer may not limit notice to employees it deems qualified for the position. However, employers may state that applications are open to only employees with certain qualifications. They may screen or reject candidates based on those qualifications. C.R.S. § 1103-13:4.2.4

Notice of a promotional opportunity must be made:

• in writing,
• by any method reaching all employees,
• to all employees for whom it may be a promotion, on the same calendar day, and
• with enough time for employees receiving notice to apply.

Accessibility of Notice

An employer must ensure the promotional opportunity notice is accessible to all covered employees within their regular workplace.

For example, let’s say your employer physically posted a job opening on the office bulletin board. However, some employees work remotely and won’t see the notice. Your employer should also post the notice via email or an online job board. This way, both remote and in-office workers have the same access — provided all employees have Internet access. If they do not, the employer must use an alternate method.

Duration of the Notice

An employer must leave job postings up long enough for employees to reasonably access them. The EPEWA does not specify what constitutes a reasonable amount of time.

Job-Posting Exceptions

The Equal Pay for Equal Work Act allows for a few exceptions to the posting requirements:

• The employer has a compelling need to keep a particular opening confidential. This could apply when the promotional opportunity is to replace an incumbent employee who is unaware of their impending separation.
• Employers do not have to provide notice of a promotion when consideration for the promotion automatically follows a trial period of less than one year. This agreement must be in writing, such as through an offer letter, contract, or employee handbook.
• No notice is required for temporary positions lasting less than six months.

Out-of-State Jobs Wages are Excluded

Employers do not need to disclose compensation for jobs to be performed entirely outside Colorado — even if the job posting is in, or reaches, Colorado. This applies to out-of-state jobs that may include modest travel to Colorado. CDLE Interpretive Notice & Formal Opinion #9

Moreover, multi-state employers are not required to notify non-Colorado employees of promotional opportunities in Colorado or elsewhere.

Remote Jobs Must be Included

Remote jobs for a covered employer (i.e., an employer with any Colorado employees) are not out-of-state jobs. Therefore, they are not excluded from posting requirements.

New Recordkeeping Rules for Colorado Employers

Finally, the EPEWA imposes new recordkeeping requirements designed to preserve evidence for any wage discrimination lawsuits.

Employers are required to keep records of job descriptions and wage rate histories for the duration of each employee’s employment, and for two years thereafter. This is meant to help determine if the employer has a pattern of wage discrepancy.

If an employer doesn’t keep the records and is sued for alleged wage discrimination, a judge may provide an adverse inference instruction to the jury. Essentially, this means that the jury may assume the missing records would have been favorable to the plaintiff employee’s lawsuit.

Any missing records may also be used as evidence that the employer’s pay violations were not in good faith, which affects available damages.

Consequences of Violating Colorado’s Equal Pay Act

Employees Can Recover Lost Wages and More

The EPEWA allows employees to sue directly for up to three years of backpay for unlawful pay disparities. The law separately allows employees to sue for an equal amount in liquidated damages. Liquidated damages are a specific amount that the parties agree upon in advance as the remedy when one party breaches a contract.

You can also sue your employer for your attorneys’ fees, reinstatement, promotion, pay increases, and other legal and equitable relief.

The Colorado Department of Labor and Employment will enforce the law, investigate complaints, and establish a voluntary mediation service. Workers may file a complaint with the CDLE within one year after learning of the violation.

Penalties for EPEWA Violations

Employers that violate the requirements face fines ranging from $500 to $10,000 per violation. However, employers can limit liability for damages by showing the act or omission causing the pay violation was made in good faith.

Meet With a Wage Discrimination Attorney 

Your employer has a legal and ethical responsibility to pay you fairly. If you feel your employer has violated the EPEWA, call 303-688-0944 today to begin your case assessment. Whether you’re filing a claim with the CDLE or filing a civil action, the wage discrimination attorneys at Robinson & Henry PC can help you recover the money you are lawfully owed.