Democratic state lawmakers behind a law requiring companies to include a salary range in any job posting are eyeing changes to the policy following reports that out-of-state employers are refusing to hire Coloradans to work for them remotely because of the provision.
But the lawmakers and other proponents of the 2019 legislation aren’t interested in backing off the requirement. Instead they are looking at how to double down and prevent employers from boxing out Colorado workers.
“I would want to protect our Coloradans and make sure they’re not being singled out,” said Rep. Serena Gonzales-Guitierrez, a Denver Democrat and prime sponsor of the 2019 law, called the Equal Pay Act. “I just don’t think that’s right.”
The Wall Street Journal last week reported that big national employers — like Johnson & Johnson, McKesson Corporation and Cardinal Health — all have posted remote-work jobs with a disclaimer that the job cannot be done from Colorado. The newspaper’s headline was “Many Companies Want Remote Workers — Except From Colorado,” stoking criticism from opponents of the measure who say burdensome government regulation is costing Coloradans jobs.
The legislation, aimed at ensuring women are paid equally to men, was a priority for Democrats three years ago. It was a first-in-the-nation policy that also requires that companies post internal advancement opportunities, and it creates a mechanism for people to file complaints with the state if they believe they are being underpaid because of their gender.
The law went into effect on Jan. 1.
A lot of the companies snubbing Coloradans were exposed thanks to Aaron Batilo, a software engineer in Commerce City, who heard about the issue and spent a day creating ColoradoExcluded.com to track employers excluding applicants from the Centennial State.
As of Thursday, there are 98 companies that exclude Coloradans. Those companies had 193 job listings with language like this one from alcohol delivery service Drizly, whose job post for a remote engineer says it can be performed anywhere in the U.S. “with the exception of Colorado.”
Batilo feels it’s important for companies to be transparent about pay. Employers may interview dozens or hundreds of candidates, get pay expectations from a variety of people from different backgrounds and then offer a salary that isn’t always fair.
“I would like to see it become more widespread, but unfortunately it’s still considered a very taboo subject to talk about your income. I think that if companies all had to be transparent, the employees would all benefit in the long term,” Batilo said. “You’d know which companies were willing to genuinely pay for your skill set, and what your skill set is worth. Right now, recruiters will throw around terms like ‘market rate’ or ‘competitive pay’ only to find out that they’re completely low-balling you.”
The lawmakers behind the bill agree with Batilo’s take.
“It’s pretty disheartening to see this happening,” Gonzales-Gutierrez said of the job postings cutting out Coloradans. “We’re kind of being blackballed.”
Sen. Jessie Danielson, a Wheat Ridge Democrat who also was a prime sponsor of the 2019 law, said that companies blocking Coloradans from applying for remote jobs is proof the policy is needed. She said those employers are “bad actors” and that they represent “extreme cases.”
“Most companies have welcomed the change and are in compliance and find it useful,” she said. “Pay transparency, it doesn’t just benefit the employee. It also benefits the employer.”
Danielson said she, too, is open to changing the 2019 to protect Colorado workers from being singled out and blocked by companies.
Ashley Panelli with 9to5, a national organization that advocates for women’s labor issues and supported the Colorado law, said proponents “need to sit down and think through this pushback and come up with some thoughtful solutions … to make sure that the integrity and the intent of the law remains, which is to increase economic stability for working women.”
“To deny wage transparency is to deny equity for people who are impacted by wage-based discrimination, and those people are largely women of color,” she said. “If corporations are implementing fair and just workplace policies, they shouldn’t have anything to hide.”
But if companies don’t want to comply with the wage transparency requirements in the law, “it’s probably because there’s something to hide,” she said, “… that there is a pay differential in gender and race.”
It’s not clear what changes may be in the works for the 2022 legislative session, which begins in January. One idea on the table: Seeing if Colorado’s congressional delegation can help since the problem is national — just as state Democrats did in 2019 to ensure federal net neutrality. If big internet providers wanted to receive state dollars to expand broadband in rural areas, they needed to comply with Senate Bill 78.
Republicans, who fought against the 2019 Equal Pay law, think the situation shows that a heavy-handed government is not the right solution. More regulation, they say, is not a remedy.
“When politicians start micromanaging in the affairs of business, the effects tend to be more red tape, more regulation,” said Rep. Kevin Van Winkle, a Highlands Ranch Republican. “We’re competing nationwide for jobs right now, and people are moving with their feet to low-tax states, low-regulation states.”
Many employers advertising remote positions, including companies that are based in Colorado or have a large operation in the state, are looking elsewhere for new employees.
Commercial real estate firm CBRE, which has offices all over the Front Range, needs a remote fund controller but the position, according to its job ad, “may be performed remotely anywhere within the United States except the State of Colorado.”
Lime, the San Francisco-based transportation company recently awarded a five-year contract with the City of Denver to provide electric scooters and bicycles, also prefers to stay away from Colorado. Applicants for several remote jobs are being told that their work “cannot be performed within Colorado.”
Both companies declined to comment to The Colorado Sun on their Colorado exclusions.
Others said they’re reviewing their own policies. Galvanize, the Denver-based tech-educator and coworking space company, had a job at its Boston location and was accepting applicants from “any state except Colorado.”
“The posting verbiage in question was in error,” said a Galvanize spokesperson in an email. “The job is actually a Boston-based role, and therefore the candidate would need to be physically in the office. In terms of the CO guidelines to include salary ranges with job postings, our policy is currently under review.”
Tech companies have especially struggled with lack of equity and diversity within their technical workforce. Back in 2014, Google, Facebook and other tech firms reported very low rates of women on their staff. By publicizing their own lack of diversity, the companies aimed to improve, though there’s still criticism that little had changed five years later.
The new Colorado law came as a bit of a surprise to technology companies. Travis Good, who runs cybersecurity company Haekka near Steamboat Springs, said that in discussions with fellow tech entrepreneurs, there’s “near-universal agreement in tech that there are problems with equity when it comes to compensation,” he said.
But the pushback was similar to data privacy laws U.S. companies faced when Europe passed its data privacy law that added new requirements for small businesses in America.
“Companies I’ve talked to are avoiding this law not because they disagree with the goals of the law, but because they fear repercussions for noncompliance,” he said. “More clarity on what companies need to do to meet the requirements of this new law would help. Ideally, those requirements are easy to meet.”
Colorado’s Equal Pay for Equal Work Act passed in 2019 and went into effect Jan. 1. It requires job postings to include the hourly wage or pay range, plus bonuses and benefits. Employers can, however, pay more if the published wage was in “good faith” at the time, according to the rules set by the Colorado Department of Labor and Employment. Fines are between $500 and $10,000 per violation. (The state accepts complaints.)
The industry has been more mindful about the inequity, said Frannie Matthews, CEO of the Colorado Technology Association. But the new Colorado regulations are challenging and she would welcome a meeting with state legislators and policy makers to discuss changes.
“We can all agree that hiring practices should be fair and equitable in our state and that we should have a regulatory environment that puts Colorado talent in a competitive position for employment,” Matthews said in an email. “If current regulations have created unintended consequences, we should be making a strong effort to right the issue to ensure Coloradans have every opportunity for employment and are not explicitly excluded.”
Joe Barela, executive director of the Colorado Department of Labor said there are still thousands of remote jobs being advertised to Coloradans. On the state’s official job board at ConnectingColorado.com, more than 30,000 listed on the site were for remote work.
Of those, 336 are Colorado employers while 30,048 are not or don’t say where they are based. By comparison, the few dozen companies that exclude Colordans are “a relatively small number,” Barela said during a labor department news conference Friday.
“But we want to make sure any employer that has a job for a Colorado worker is aware of the Equal Pay Equal Work Act and we’re doing everything to outreach to them to make sure that they know how they can comply with that and continue to post those jobs in Colorado,” he said.
Rachel Ellis, a Colorado employment attorney who advocated in support of the law, thinks the Colorado Department of Labor and Employment could address the matter by making it clear with a new rule: employers that operate in Colorado and post a job that could be performed in the state must comply with the transparency requirements.
Employers’ attempts to skirt the law are “not the result of unintended consequences,” she said, calling the behavior predictable.
“There will always be companies that choose the least honorable path,” Ellis said, “and here we are.”