On June 5, 2023, Colorado Governor Jared Polis signed the Ensure Equal Pay for Equal Work Act (the “Amended Act”) amending the Equal Pay for Equal Work Act.

The Equal Pay for Equal Work Act, which took effect on January 1, 2021, requires employers to make reasonable efforts to provide covered employees with certain notice prior to making a hiring or promotional decision. The Amended Act clarifies and updates these obligations, with changes taking effect on January 1, 2024.

Narrowed Notice Requirement for Out of State Employers

Of significance to employers who do not have a physical place of operations in Colorado, the Amended Act provides that, through July 1, 2029, employers whose physical locations are all based outside the state of Colorado and that have fewer than 15 remote employees working in Colorado need only provide such employees notice of “remote job opportunities” (with the term “job opportunities” as defined below).

Notice No Longer Required Before “Career Progression” or “Career Development” Promotions

The Amended Act provides that “a[n] employer shall make reasonable efforts to announce, post or otherwise make known each job opportunity to all employees on the same calendar day and prior to the date on which the employer makes a selection decision.” This departs from the existing statute’s language which requires notice for all “opportunities for promotion.” Under the Amended Act, a “job opportunity” is defined as “a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts.”

Further, the Amended Act clarifies that position changes due to “career progression” and “career development” are not “job opportunities” subject to notice requirements.  “Career Progression” is defined as “a regular or automatic movement from one position to another based on time in a specific role or other objective metrics. “Career Development” is defined as a “change to an employee’s terms of compensation, benefits, full-time or part-time status duties, or access to further advancement in order to update the employee’s job title or compensate the employee to reflect work performed or contributions already made by the employee.” Thus, under the Amended Act, employers will no longer need to post or otherwise provide notice of in-line promotions meeting the above definitions before they take effect.

However, for positions eligible for “career progression” as defined by the statute, employers will be required to disclose to all eligible employees the “requirements for career progression, ”in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement.”

Required Notice of End of Application Window

For “job opportunities” subject to notice requirements under the Amended Act, employers will be required to in good faith disclose not only the hourly or salary compensation and a general description of the benefits or other compensation applicable to the job opportunity, but also the date the application window is anticipated to close.

New Obligation to Notify Employees of Selected Candidates

The Amended Act imposes an new requirement that employers make reasonable efforts to announce, post, or otherwise make known the identity of the selected candidate for covered job opportunities within 30 calendar days of the selected candidate’s start date in that role. The notice must be provided, at minimum, to the employees with whom the selected candidate is intended to work and it must provide the following information:

  • The name of the selected candidate;
  • The selected candidate’s former title, if the selection as internal;
  • The selected candidate’s new job title; and
  • Information on how employees may demonstrate interest in similar job opportunities in the future, including identifying individuals or departments to whom the employees can express interest in similar job opportunities.

Expanded Recovery for Back Wages

Employees aggrieved by a violation of the Amended Act can recover back wages for violations going back up to six years, rather than the three-year limitation provided in the current statute.

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The Amended Act requires the Colorado Division of Labor Standards and Statistics to promulgate rules to enforce the provisions of the law on or before July 1, 2024.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Theresa Madonna Theresa Madonna

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide…

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide range of employment matters, including employment discrimination litigation and client-counseling. She has assisted in representing employers in litigation and investigations related to claims of workplace harassment, discrimination, retaliation and wrongful discharge. In addition to her litigation practice, Theresa counsels clients regarding employee policies, handbooks, offer-letters and noncompetition and independent contractor agreements. She has gained experience across a wide variety of industries including health care institutions, education, real estate, media and entertainment, financial services and sports. As part of her pro bono practice, Theresa represents individuals in immigration matters and provides employment counseling to non-profit organizations.

Theresa earned her J.D. summa cum laude from Boston University School of Law, where she was a member of the Boston University Law Review and a Legal Research and Writing Fellow. During law school, she was a clinical student attorney and represented clients in employment, housing, and family law matters. Additionally, she interned for the Honorable Juan R. Torruella of the United States Court of Appeals for the First Circuit. Theresa also received Boston University School of Law’s William L. and Lillian Berger Achievement Prize for exemplary scholastic achievement.

Prior to law school, Theresa was an in-house paralegal at a Boston-based technology company.