Coloradans Need Not Apply
A law seeking to help the state's workers seems to be having the opposite effect.
Axios has “re-reported” and thus drawn my attention to a WSJ report that a wave of companies are advertising for open positions but actively discouraging people from Colorado from applying. While my first thought was the state’s liberal marijuana laws, the actuality is more sinister.
At issue is a new Colorado law that requires companies with even a few employees in the state to disclose the expected salary or pay range for each open role they advertise, including remote positions. The rule’s aim is to narrow gender wage gaps and provide greater pay transparency for employees. To avoid having to disclose that information, though, some employers seeking remote workers nationwide are saying that those living in Colorado need not apply.
After listing several job announcements doing just that, they go on to explain:
Businesses have argued, in part, that Colorado’s rules are overly burdensome administratively for employers. The Rocky Mountain Association of Recruiters, a trade group, sought an injunction against the pay transparency rules earlier this year. Last month, a federal judge denied that request, allowing the rules to stand.
While I’m open to persuasion, given by lack of experience running a major business, I’m highly skeptical that having to disclose how much a job pays is “burdensome administratively.” Certainly, the federal government manages to do so. But I’m also skeptical that Colorado has a right to legislate the behavior of companies not located in Colorado, even if people from Colorado wind up applying for the job. More on that later.
While labor and legal experts say there is nothing technically stopping Coloradans from still applying and being eligible for such jobs, the disclaimers are likely to discourage people wanting to work remotely from the state from pursuing such opportunities.
“You can’t stop the internet essentially at a state line. Anyone can apply for anything,” said Laura A. Mitchell, a Denver based principal at the law firm Jackson Lewis P.C. “The question comes down to whether or not an employer would actually consider that candidate for the role.”
I would imagine the companies in question would be happy to have and consider applicants from Colorado and are simply hoping that the language keeps them out of the law’s purview.
The job-posting language is also drawing scrutiny from Colorado officials. The state’s Department of Labor and Employment recently opened an investigation into a complaint about at least one company’s remote job posting excluding Colorado residents, said Scott Moss, director of the department’s division of labor standards and statistics, who declined to name the company or who filed the complaint.
I am far from an expert on labor law but would be surprised, indeed, if it were legal for a company to openly refuse to hire Coloradans. Granting that state residency isn’t a protected class under federal law, it certainly violates the spirit of the Commerce Clause.
A number of states, including California, have enacted legislation in recent years that ban employers from asking for an applicant’s salary history or added requirements for employers to disclose pay ranges upon request. One difference in Colorado’s Equal Pay for Equal Work Act—which went into effect in January—is its provision that employers publicly disclose compensation and benefits for each job posting in the state.
Okay . . . so that may indeed be burdensome. I absolutely support greater salary transparency as a public policy goal but it seems unreasonable to require the disclosure of that much information in every job announcement. But I’m only going by what’s in the news report and there may be cheap, easy ways (such as posting on the company website) for companies to meet the burden. And, indeed, that seems to be the case.
In the remote-work era where jobs can conceivably be done anywhere, that has led to some confusion, state officials say. Colorado has told employers they don’t need to disclose compensation for roles to be performed entirely outside of the state. Nor do the pay-disclosure requirements apply to remote jobs posted by a company that doesn’t have any Colorado employees. But if an employer does have a presence in Colorado, it would need to post salary information—even for a remote job—Mr. Moss said.
Again, it strikes me as unreasonable for states to be able to impose restrictions on companies who don’t have facilities in the state if they’re merely doing business there via mail-order/online retail or the like. And, certainly, having remote workers who happen to live in the state seems inadequate.
Many companies now do include pay information specific to Colorado on remote job postings. A listing for a software development engineer on a “work-from-anywhere” team at Amazon.com Inc., for instance, notes that the range for the position in Colorado is $116,400 to $160,000 a year, but overall compensation could vary. Amazon’s listing cites Colorado’s Equal Pay for Equal Work Act as its reason for including the compensation information.
Again, I only know what’s in the report here but if including a very large salary range and huge caveat meets the intent of the law, it’s not obvious that it’s 1) particularly burdensome for employers or 2) all that helpful for would-be workers.