Equal pay advocates who worked on Colorado's 2019 equal pay law, which prompted some national companies to state that Coloradans "need not apply" for remote work, say the law could help them if there are opportunities they still want to pursue.
Under Senate Bill 19-085, companies must list salary ranges along with the job posting. But according to a June 17 Wall Street Journal story, some out-of-state companies that hire remote workers aren't willing to comply with the law and as a result are telling Coloradans not to apply for those jobs.
Attorney Sarah Parady, who testified on behalf of the Colorado Women’s Bar Association when Senate Bill 19-085 was being debated, and speaking on her own behalf Wednesday, told Colorado Politics that the law includes a retaliation clause, so hypothetically, if a particular applicant chose to apply for a position that was posted as excluding Coloradans, and in doing so asked for the salary range and was not hired, the retaliation protections in the law might come into play.
“I encourage workers not to be deterred from applying just because of these provisions,” she said.
The companies’ postings also say a lot about what they think about pay transparency, Parady said, as well as sending a message that they would cut off talented workers in Colorado because they don’t want to obey the law. It was a common sense law, Parady added, especially for women who she says have been disempowered in other ways.
Opponents brought up the issue
Those who testified against the bill in 2019 said they saw this coming.
Loren Furman of the Colorado Chamber of Commerce said Friday that the backlash shouldn't come as a surprise. When the bill was moving through the process, she said the pay range provision was cited as one of the problems.
"We had major concerns about this legislation and tried to work with the sponsors," Furman told Colorado Politics. Amendments were adopted, "but the language in the bill was kind of vague, so we weren't sure how it would be implemented" by the Colorado Department of Labor and Employment through the rulemaking process, she explained.
"It shouldn't have been a surprise to the sponsors that this is how companies will handle the law. The department is doing what they can, but I don't think they can do more than what they're doing right now." The law made Colorado unique, she said, so that now means that for companies that operate in multiple states they have to treat Colorado differently.
"I don't fault them for having to adjust to a new law when other states are handling this differently," Furman said. She also pointed out that there have been a lot of employment laws passed in the last five years, which is making it more difficult for companies to figure out how to comply, especially when some laws conflict with others. It's frustrating, she added.
Jenifer Waller of the Colorado Bankers Association said that while they support equal pay and anything that helps the economy and get people back to work, they did raise the concern when the bill was going through the process that it would make Colorado an outlier, since no other state has that provision.
"We also felt it would be burdensome to post a position and disclose salary," information disclosed to people who are not qualified to apply for the position. That could be a morale problem, she explained.
Nobody envisioned remote work becoming so prevalent, Waller said. "It's a shame that a Colorado law is making it hard to hire individuals in Colorado for that work."
Waller said she doesn't see a way around the problem by adjusting the rules. The law's intent was that it apply to any job in Colorado, including those from out-of-state employers, so amending the rule or even Attorney General action isn't likely, and a change would require legislative action.
That's not quite how Rep. Serena Gonzales-Gutierrez, a Denver Democrat who was one of the bill's co-sponsors, sees it. She believes rulemaking could find a workaround, but she isn't at the point of discussing changes to the law with the bill's other co-sponsors.
She also pointed out that the law applies to Coloradans who already hold remote work positions from out-of-state companies. If those companies, for example, are posting promotional job opportunities, that has to include salaries, she told Colorado Politics.
Years of effort
SB 85 was part of the first-year agenda of Senate Democrats who had just taken control of the state Senate, and was the culmination of years of effort in the women’s advocacy community to address long-standing gender disparities in pay, according to Chaer Roberts, legislative director for the Colorado Center on Law and Policy. At the time, women were making 86 cents to every dollar earned by a man for the same type of work, they testified.
According to NBC, however, the situation has only gotten worse with the pandemic, with women dropping out of the labor market at historic rates. They found that in 2021, white women earn 82 cents on the dollar; for women of color, it's 63 cents.
Before 2019, what passed was what Roberts called “toothless ‘ain’t it awful’ Equal Pay Day resolutions” that she said decried the situation and did little more than hand out statistics on the gender pay gap.
The move to create the equal pay law changed when lawmakers passed the Colorado Wage Transparency Act in 2017, a bill backed by 9 to 5 Colorado, one of the leading advocates in the gender pay issue, Roberts said. The law prevented people from getting fired for disclosing their pay to other employees. Until then, only managers or employees who worked in human resources had access to information on wage disparities.
The news from the legal community that Colorado required pay ranges as part of job postings gained more attention after an April employment blog written by attorneys with the international law firm Hogan Lovells, which has an office in Denver. One Colorado man has even started a website tracking the companies that won't take applications from Coloradans. Almost 100 companies and 193 job postings are now listed, as of June 24.
Parady said that the reaction from those companies was not one that they anticipated.
“Salary clarity and reviewing salary is a key component of the success of the law,” she said.
Colorado is no longer alone in its equal pay laws, according to Kim Sporrer, executive director of the Colorado Women’s Bar Association.
Maryland updated its equal pay law last year to include a pay range amendment, which under the law would be provided to prospective employees upon request, which is different from the Colorado mandate. According to the website JDSupra, 17 states, including Colorado, have implemented pay transparency laws and others are considering it.
“We believe that wage transparency is integral to closing the general and racial wage gap and this is one more step for people to make sound economic decisions with full knowledge, said Jenn Rivera, communications director for 9 to 5 Colorado, one of the major driving forces behind SB 19-085.
“To see companies twist it instead of using the law as an opportunity to follow best practices, and to say this is keeping them from hiring folks in Colorado, is doing Coloradans a disservice,” Rivera said.
Remote working on the rise
The law, which went into effect in January, comes at a time when such remote positions in a post-pandemic economy have become attractive to job seekers, especially women, proponents say.
Rivera noted that the pandemic has had a devastating impact on working families, with one result inconsistent work. This is an opportunity for companies to do better by working families and working women, she said, and to update best practices rather than seeing them as a detriment.
Women have definitely suffered the worst of the job losses, with an even bigger gap for women of color, Rivera explained. One of the lessons of the pandemic around work is that people have multi-faceted lives, and it’s not just about going to work every day; it’s also about taking care of loved ones. Remote work, she said, provides that work-family flexibility.
9 to 5 Colorado sees wage transparency as a way to create a more equitable workforce and workplace.
“We still think it was a good decision and disappointed that huge companies are trying to avoid the law, which deprives them of good workers,” she added.
Debra Brown of Good Business Colorado said that the law was incredibly well thought out with a lot of stakeholder engagement. The implementation was reviewed in order to ensure it would not be a burden on businesses of any size.
Brown called it a “sham” that large corporations are using the exclusion language as an excuse not to follow the law, when they could instead use those postings as an opportunity to position themselves as leaders in equity initiatives. Brown said it would be simple for them to address the law, such as including compensation ranges specific to Colorado in their job postings.
“What we hope to see from this is a major backlash from consumers and true industry leaders who will bring in real accountability,” Brown said. “It’s ridiculous and unacceptable, and [to the companies] you’re standing in the way of closing the wage equity gap.”
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Equal pay dodge unfair to Colorado workers, say those who worked on Colorado's law - coloradopolitics.com
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