Equal Pay for Equal Work Act Overview
During the 2019 legislative session, the Colorado legislature passed the Equal Pay for Equal Work Act (EPEWA), which became effective on January 1, 2021. EPEWA prohibits wage discrimination on the basis of sex—which is defined as an employee’s gender identity—and mandates strict requirements on job postings and equal pay transparency for every employer, public and private, with one or more employees in Colorado.
On November 10, 2020, the Colorado Department of Labor and Employment adopted Equal Pay Transparency (EPT) Rules and issued additional guidance on the specific EPEWA requirements, as summarized below:
Pay equity requirements
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EPEWA allows exceptions to the prohibition against a wage differential based on sex if the employer demonstrates that a wage differential is not based on wage rate history and is based upon one or more of the following factors, so long as the employer applies the factors reasonably and they account for the entire wage rate differential:
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A seniority system;
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A merit system;
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A system that measures earnings by quantity or quality of production;
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The geographic location where the work is performed;
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Education, training, or experience to the extent that they are reasonably related to the work in question; or
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Travel, if the travel is a regular and necessary condition of the work performed.
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EPEWA prohibits an employer from:
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Seeking the wage rate history of a prospective employee or requiring disclosure of wage rate as a condition of employment;
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Relying on a prior wage rate to determine a wage rate;
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Discriminating or retaliating against a prospective employee for failing to disclose the employee's wage rate history;
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Discharging or retaliating against an employee for actions by an employee asserting the rights established by EPEWA against an employer; or
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Discharging, disciplining, discriminating against, or otherwise interfering with an employee for inquiring about, disclosing, or discussing the employee's wage rate.
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Employers are also required to maintain records of job descriptions and wage rate history for each employee for two years after the employment ends.
Job posting and ETP requirements
EPEWA requires employers to announce employment advancement or promotional opportunities and job openings, including the pay range for the openings, to all employees. Specifically, employers must:
- Make reasonable efforts to announce, post, or otherwise make known, all opportunities for promotion to all current Colorado employees on the same day and prior to making a promotion decision; and
- For all job postings for jobs to be performed in Colorado or jobs that can be performed remotely from anywhere, including but not limited to promotions, employers must include the compensation range for the position and a general description of all benefits and other incentive compensation.
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➤ Postings regarding Promotional Opportunities
A “promotional opportunity” exists when an employer “has or anticipates a vacancy in an existing or new position that could be considered a promotion for one or more employees in terms of compensation, benefits, status, duties, or access to further advancement.” Unless an exception applies, whether employees are actually qualified for a job or promotional opportunity does not matter; the law provides that employers “may not limit notice to those employees deemed qualified for the position.” Employers are not required to post promotional opportunities where:
- the employer has yet to inform incumbent employees that they are being separated;
- promotions are automatic after a trial period that occur within one year of employees being hired with a written representation to that effect; and
- positions are temporary for up to six months and not expected to be permanent.
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Final thoughts
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Regularly conducting audits to uncover any illegal pay disparities may help protect a district from being subject to liquidated damages in the event of an alleged violation.
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District administrators should ensure adequate systems are in place for identifying future job openings—including internal promotional opportunities—and ensuring that notice of all such job openings contains the required wage and compensation information.
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Opportunities for internal promotion must be announced or otherwise posted internally to all employees on the same calendar day and in advance of promotion decisions.
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Open hiring and/or equal employment opportunity (EEO) policies should reflect that illegal pay disparities are not permitted.
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Hiring managers should be trained to not solicit or rely on wage rate histories when interviewing job applicants.
Districts are encouraged to work with their local counsel and HR administrators to ensure compliance with the EPEWA.
January 2021
©Colorado Association of School Boards
