U.S. District Court Denies Injunction Of Colorado Equal Pay Law

• Published date: 12 June 2021
• Subject Matter: Employment and HR, Employee Benefits & Compensation
• Law Firm: Husch Blackwell LLP
• Author: Barbara Grandjean, Ashley W. Jordaan, Christopher Ottele, Sonia Ramirez Anderson and Owen Davis

Last week, in the case of Rocky Mountain Association of Recruiters v. Moss, Case No. 1:20-cv-03819 (U.S.D.C. Colo.), U.S. District Judge William J. Martinez denied a plaintiff's request for a preliminary injunction to block portions of Colorado's Equal Pay for Equal Work Act (EPEWA). The EPEWA, which went into effect beginning this year, aims to close the gender wage gap in Colorado by prohibiting employers from paying an employee of one sex less than the other sex for substantially similar work (Part 1) and by requiring employers to follow strict job posting and pay transparency rules (Part 2).

Plaintiff's constitutional challenge

The lawsuit noted above challenges the EPEWA's promotion and compensation posting requirements on constitutional grounds. Under the promotion posting requirement, employers must notify current employees of all promotion opportunities, with certain exceptions. The law's compensation posting requirement mandates that employers include in every job posting:

• the expected compensation or range for the position;
• a description of any bonuses, commissions or other forms of compensation being offered; and
• a description of all employee benefits available.

The plaintiff specifically asserts that these requirements violate the Dormant Commerce Clause and First Amendment protections of commercial speech. Based on these claims, plaintiff sued Scott Moss in his official capacity as the Director of the Division of Labor Standards and Statistics of the Colorado Department of Labor and Employment (Division) and requested a preliminary injunction prohibiting the Division from enforcing both provisions.

District Court denies plaintiff

In denying the request, Judge Martinez held that the plaintiff failed to offer sufficient evidence to show a "substantial likelihood of success on the merits" for either claim, a required showing when seeking a preliminary injunction.

Under the Dormant Commerce Clause, states are prohibited from enacting laws that discriminate against interstate commerce or unduly burden interstate commerce in relation to the state's local benefits. In asking for a preliminary injunction, the plaintiff alleged that the promotion and compensation posting requirements unduly burden interstate commerce in relation to the state's claimed public benefit of improving gender pay equity. Specifically, it argued there was no evidence...