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Labor and Employment Law Updates

Colorado's “Equal Pay for Equal Work” Bill Moves Forward

A bill that would (1) prohibit Colorado employers from considering a job applicant’s past salary history when determining her pay rate, (2) require employers to post jobs openings (and the wage rate for such job openings) to all employees, and (3) allow employees to recover up to three years of back pay for unequal pay, plus liquidated damages and attorneys’ fees, is moving forward in the Colorado Senate.

The state Senate Bill is designed to end Colorado’s gender-based wage gap, and is far broader in scope than the federal Equal Pay Act (“EPA”), which prohibits employers from paying women less than men for substantially similar work.FN2 Unlike the EPA, the state Senate Bill prohibits employers from discussing past salary with prospective employees and from considering past salary for new employees when setting pay rates; and further requires employers to post job openings and the wage rates for such jobs to all employees. Although the state Senate Bill allows employers to justify pay differences based on seniority, merit, and quality or quantity of work, it does not contain the EPA’s crucial allowance for different pay based on a bona fide and job-related “factor other than sex.”

We expect that the Colorado General Assembly and Governor will pass some version of this bill that will create significant obligations and restrictions on workplaces that currently do not exist. We will keep you posted of developments to permit you ample time to take steps to comply with the law.

Footnotes:

FN1:   Colorado Senate Bill 19-085 is found at https://leg.colorado.gov/sites/default/files/documents/2019A/bills/2019a_085_01.pdf. On February 20, 2019, Senate Bill 19-058 passed a Senate Judiciary Committee vote. See Ed Sealover, Equal-Pay Measure Advances at Colorado Capitol Despite Significant Business Concerns, Denver Business Journal (Feb. 21, 2019), https://www.bizjournals.com/denver/news/2019/02/21/colorado-equal-pay-measure-advances-committee.html.

FN2:   29 U.S.C. § 206(d).