April 11, 2021

Volume XI, Number 101


April 09, 2021

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April 08, 2021

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Colorado Department of Labor and Employment Issues “INFO” Guidance on Promotional Opportunities and Job Postings

As anticipated, the Colorado Department of Labor and Employment (CDLE) issued an Interpretive & Formal Opinion (INFO) – “Transparency in Pay and Opportunities for Promotion and Advancement”.  While the INFO is helpful in some respects, CDLE continues to take a hardline on the definition of “promotional opportunity”.

We continue to digest the guidance but the highlights include clarifying that 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 employee(s) in terms of compensation, benefits, status, duties, or access to further advancement.”

Further to this point, the INFO states that:

  • A vacancy in a new position exists when an employer:

(1) adds a position; or

(2) gives an existing employee a new position, including by changing their title, and/or materially changing their authority, duties, or opportunities.

  • A vacancy in a new position includes a lateral job change, or a promotion along a fixed, in-line career trajectory, for which a current employee is eligible.

Based on the following CDLE example, it is difficult to imagine an instance not covered by the Rules:

An employer automatically advances every Apprentice 1 to an Apprentice 2 when the employee passes a competency test. An Apprentice 2 has more advanced duties, higher pay, and access to future promotions unavailable to an Apprentice 1. This advancement is a promotion to a new position because the employer is creating an Apprentice 2 position each time it advances an Apprentice 1. However, if the promotion is promised in writing upon hiring in conformity with EPT Rule 4.2.5(B) , it may be exempt from the duty to provide notice of the promotional opportunity to other employees.

The INFO further confirms that while multi-state employers need not include compensation or benefits in notices to Colorado employees for positions outside of Colorado, it must notify Colorado employees of such promotional opportunities.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 353



About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...