Colorado salary history ban: C.R.S. 8-5-102 for recruiters

Colorado bars every employer with someone working in the state from asking job candidates about their pay history and from relying on it to set pay. The rule is in the Equal Pay for Equal Work Act at C.R.S. 8-5-102(2), and it is short: no size threshold, no carve-out for a number the candidate volunteers, and a definition of "wage rate" that includes every form of compensation and benefits. For a recruiter that makes Colorado one of the simplest states to work in. Do not ask, do not use, and talk about the range.

The statute

The official text of Colorado's statutes is published through the Colorado General Assembly's contracted publisher; CDLE posts the full text of the Act as a PDF of C.R.S. 8-5-101 et seq., which is the version quoted here. Section 8-5-102(2) says an employer shall not:

• "(a) Seek the wage rate history of a prospective employee or rely on the wage rate history of a prospective employee to determine a wage rate;"
• "(b) Discriminate or retaliate against a prospective employee for failing to disclose the prospective employee's wage rate history;"
• or retaliate against an employee for invoking the section or helping enforce it.

The same section also says an employer defending a pay gap must show "that prior wage rate history was not relied on to justify a disparity in current wage rates" (8-5-102(1)(d)). So pay history fails twice in Colorado: it cannot be used at hiring, and it cannot explain a gap later.

What "wage rate history" covers

Section 8-5-101(9) defines "wage rate" broadly. For an hourly employee it is the hourly pay "plus the value per hour of all other compensation and benefits"; for a salaried employee it is "the total of all compensation and benefits." In other words, asking about last year's bonus, the candidate's equity grant, or the value of their health plan is asking about wage rate history.

Who is covered

• Every employer with a worker in Colorado. "Employer" means the state and its subdivisions "and every other person employing a person in the state" (8-5-101(5)). There is no minimum headcount.
• Recruiters and staffing agencies. The statute does not use the words "agent" or "employment agency." A staffing firm that employs people in Colorado is an employer in its own right. A third-party recruiter asking on a client's behalf is, in practical terms, the client seeking the history. We read the ban as reaching that question, but the Act does not say so expressly, so treat this as our reading rather than settled law.
• Prospective employees. The ban protects applicants. The Act does not address internal candidates separately.

What is banned and what is allowed

Unlike California, New York or Washington, Colorado's statute contains no clause allowing an employer to consider or confirm a volunteered figure, and no post-offer verification window. We did not find CDLE guidance creating one. If a candidate tells you their salary, the cautious approach is to treat it as if it had not been said.

How it works with Colorado's posting rules

Part 2 of the same Act requires postings for Colorado roles, and remote roles a Colorado-based person could fill, to include the pay rate or range, a general description of benefits and other compensation, and the application deadline, with no size threshold. Our Colorado pay transparency guide covers those rules, the internal notice duty and the post-selection disclosure. The history ban and the posting rules are two halves of the same design: the candidate sees the employer's number before applying, and the employer never asks for the candidate's.

Enforcement and penalties

• CDLE complaint. The Division of Labor Standards and Statistics accepts complaints about Part 1 of the Act, which it calls "Unequal Pay" and which includes the pay history rules, through its Equal Pay for Equal Work Act page. Section 8-5-103 directs the director to accept and investigate complaints and order compliance and relief.
• Lawsuit. A person aggrieved by a violation of 8-5-102 may sue in district court within two years of the violation (8-5-103(2)), and any party may demand a jury.
• Remedies. An employer that violates any provision of 8-5-102 is liable for legal and equitable relief, which may include employment, reinstatement, promotion, a pay increase, lost wages and liquidated damages, plus the employee's reasonable costs, including attorney fees (8-5-104(2)).

The fines of $500 to $10,000 per violation that Colorado employers hear about come from section 8-5-203 and apply to the posting and notice rules in Part 2, not to the pay history ban.

Remote candidates and out-of-state employers

The Act defines an employer by whether it employs a person in Colorado, and it protects "prospective" employees. It does not spell out how the history ban applies when a company with no Colorado staff interviews a Colorado-based candidate for a remote role. CDLE's published compliance letter on remote jobs addresses the Part 2 posting rules, not the history ban. The practical answer for a recruiting desk is not to rely on that gap: a candidate based in Colorado who would work from Colorado will be a Colorado employee on day one, and the offer you help set will be a Colorado wage rate. Apply the ban whenever the candidate or the work is in Colorado.

Why a number you never use can still hurt

Section 8-5-102(1)(d) makes the employer prove, when defending a pay gap between employees of different sexes doing substantially similar work, that prior wage rate history was not relied on to justify it. A volunteered salary that sits in the submittal, the ATS or an email to the hiring manager is exactly the evidence that undermines that proof, even if nobody consciously used it. Back pay in these claims can reach six years under 8-5-103(3). If your client is reviewing its ranges, a pay equity audit before posting ranges is the place to catch gaps that started at hiring.

The "what do you make now?" moment: a script

Instead of asking

"The posting has the range: $28 to $33 an hour, plus health coverage and paid time off (example figures). What rate are you looking for?"

When the candidate volunteers it

"Thanks, but you don't need to tell me that. Colorado doesn't let employers use pay history, so I'll leave it out. What rate would make this move worth it for you?"

When the candidate asks if they have to answer a client's question about pay

"No, you don't, and you can't be penalized for declining. If anyone asks, tell me and I'll handle it with the client."

When the client asks

"Colorado bars using pay history, even if a candidate offers it, so I don't collect it. His expectation is $31 an hour, which is inside your range."

A Colorado checklist

1. Remove every current-pay, past-bonus and benefits-value question from forms used for Colorado or Colorado-eligible remote roles.
2. Share the posted range first, then ask for expectations. Wording is in salary expectation questions, and answers to the questions candidates ask back are in how recruiters answer candidate salary questions.
3. Do not record a volunteered figure; record the expectation.
4. Keep pay out of reference calls and background checks.
5. Set offers from the range, skills and internal equity, and write down the reasons.

For states that do allow a volunteered figure, and how they differ, see salary history ban states.