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Companies Want Remote Workers in All States but 1

The Atlantic logo The Atlantic 7/28/2021 Saahil Desai
a screen shot of a television © The Atlantic

Some remote workers would do anything to burn their sweatpants and get back to cubicle life. Aaron Batilo is not one of them. The Denver-based software engineer is the Roger Federer of working from home: He’s gone commute-less for several years now, “way before it was the cool thing to do,” he told me.

The remote-work revolution was supposed to bring Colorado a lot more Aaron Batilos. If you’ve been aching to leave the West Coast, the state can sound like downright paradise: the best hiking you’ll find basically anywhere! An actual home—not some creepy underwater lot—for less than $1 million! And yes, legal weed! There’s just one problem. Squint at the fine print on remote-job listings lately and you might see something like this, for a senior sales manager at Samsung: “This role can be performed remotely anywhere in the United States with the exception of Colorado.” Or like this, for a job at Johnson & Johnson: “Work location is flexible if approved by the Company except that the position may not be performed remotely from Colorado.”

An obscure Colorado labor law that passed in 2019 and went into effect earlier this year requires that all companies in the state include salary details in job postings. The idea is that when would-be employees, especially women and people of color, know how much an employer can offer, they won’t lowball themselves when negotiating their salary. Sounds straightforward enough, but a chunk of companies are doing everything they possibly can to avoid the mandate. When Batilo got wind of what was going on, in late May, he did what any remote-work-loving tech nerd would do: He made a crowdsourced website with all the jobs shutting out Coloradans. Head over to coloradoexcluded.com and you’ll find more than 400 job listings with these Colorado carve-outs—from mega-companies such as Nike, Cigna, and Oracle; nonprofits such as PETA; and … whatever exactly Marsh McLennan is. The site isn’t exhaustive. I went on the job board Indeed and searched for all listings that included the phrase except Colorado. I got 700 hits.

[Read: What bosses really think of remote workers]

What was supposed to be a transformative step toward gender equality is running into corporate America’s very best evasion tactics. “Companies are absolutely scared of this law,” says Paige Ouimet, a finance professor at the University of North Carolina’s business school. Corporations that have no problem shelling out for consultants to teach their employees about microaggressions and intersectionality aren’t willing to take a step that’s been shown to actually narrow the gender pay gap: telling applicants what jobs pay.

When I first heard about what was going on in Colorado, I reached out to one of the bill’s sponsors, State Senator Jessie Danielson. Had she seen this coming? The Equal Pay for Equal Work Act was signed into law in May 2019—the good ol’ days before remote work blew up—so I expected the Denver-area Democrat to say what politicians usually say when a law isn’t working as planned: We need to make some changes. Not so! “This is simple and straightforward,” she told me. “What these companies are doing is shameful. These bad-actor companies are working very, very hard to continue to underpay women.” When we talked, she called the companies behind these job listings “bad actors” no fewer than six times.

Danielson was fuming for a reason. The bill she helped shepherd into law is one of the most sweeping and ambitious answers to the gender pay gap that’s been passed by any state. And that’s in Colorado, which is historically not quite known for being at the vanguard of progressivism. “I’ve been working on this issue for a long time, and the salary-range requirement is a real game changer,” says Kate Nielson, the senior director of public policy at the American Association of University Women. To get a sense of what making salary ranges public can achieve, take a look at the largest employer in the United States: The federal government has to disclose salaries to job applicants, and sure enough, women on staff earn 93 cents for every dollar earned by a man. For the rest of us private-sector schlubs, it’s a more troubling 84 cents for every dollar.

[Read: The Colorado paradox]

Most companies don’t seem to be sliding in Colorado carve-outs before blasting job openings into the world. Scott Moss, a lawyer at the Colorado Department of Labor, recently ran an analysis and found that just 1 percent of all remote-job listings are blackballing Coloradans. So far, the department he runs, the Division of Labor and Statistics, has let 24 companies know that they have violated the law, and all of them have tweaked their job listings. These businesses might not be doing something nefarious, but rather are just pumping the brakes while they figure out what the deal is with this new law. Or at least that would make sense for the smaller, Dunder Mifflin–type companies out there. “But for big firms? They can comply,” Ouimet told me. “They’re choosing not to.”

I reached out to 10 companies with Colorado carve-outs. Just three would comment. Drizly said it had “exceeded the requirements of the mandates” by releasing two versions of each remote job: one with salary ranges for Colorado workers, and one without them for everyone else. PETA could not explain how the language had ended up in its job listings. And Airbnb said that “the language was included in error,” and it’s been wiped from all job postings.

What exactly are these companies scared of? Let’s say Sophia in Boulder applies to a job at BigCorp that has wage info in the listing. Sophia nails her interview and gets the job. Since she already knows the salary range, she has a cheat code for negotiating her pay, ensuring that she won’t ask for the very bottom of—or even below—what BigCorp can pay. That’s great news for Sophia. But BigCorp has a problem. “This comes at a clear cost to firms: You can’t tell the men they need to take a 20 percent pay cut,” Ouimet said. “The only recourse is to raise women’s wages.”

[Read: One way to ensure equal pay for men and women]

Especially now that companies have to put some extra effort into finding and retaining workers, releasing pay information is an invitation to your competitors to poach your staff with more money, says Emily Hobbs, an employment lawyer with Michael Best in Denver. The Rocky Mountain Association of Recruiters, a trade group, sued to block the law, alleging that since salary ranges are “confidential” and “trade secret,” the regulation violates the First Amendment. The group did not respond to my requests for comment, but a judge struck down the case last month.

The delinquent companies can’t keep this up forever. At some point—maybe in the next few months, maybe later—they’ll realize that they don’t actually have a choice in whether to push forward with Colorado carve-outs. What happens if the holy grail of job candidates sneaks into the applicant pool but lives in Fort Collins? If a particularly essential remote worker in Texas needs to move to Colorado to care for an ailing parent, is the company going to just fire them outright? Earlier this month, Moss tried to clear things up by telling employers that if they have even a single worker in Colorado, these carve-outs are indeed illegal.

A weird side effect of the remote-work boom is that the state-led push for equal pay may soon rejigger corporate practices nationwide. You might be able to skirt the Colorado law, but watch out if you have workers in Rhode Island or Connecticut: Since June, both states have passed their own wage-transparency laws. New York is considering a similar bill. And if and when giant, liberal California joins the club, it’s game over for these companies. The same phenomenon has essentially played out with California and car-emissions standards: California’s rules have become the nation’s rules.

[Read: What gender-pay statistics aren’t capturing]

For now, though, all of the attempts to circumnavigate a trailblazing gender-parity law are a sign that maybe companies aren’t as progressive as they claim. “What we’re seeing is that younger workers are really demanding that their employers prioritize equity,” Ouimet said. Johnson & Johnson funds an award to boost the ranks of women in STEM. Nike has an ad that asks questions such as, “Can you be the generation that ends gender inequality?” (Seriously.) But what are they up to when their workers aren’t looking?

Maybe Nike’s next senior diversity recruiter can help with that—but, well, just don’t think about applying if you live in Colorado.

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