The Colorado state legislature enacted a crop of new laws affecting employers in 2023, including the following:

• The POWR Act (Protecting Opportunities and Workers’ Rights Act)
• Revisions to existing job/promotional opportunity posting and disclosure requirements
• Expansion of reasons for taking HFWA/paid sick leave
• Age-related questions in job applications
• Penalties related to wrongful refusals to allow use of service animals by disabled individuals
• State actions to recover reimbursement of overdue wage payments
• Expansion of military leave.

The remainder of this blog post summarizes some of the features of these new developments.

• POWR Act (Protecting Opportunities and Workers’ Rights Act) will take effect August 7, 2023: The Colorado legislature summarized this wide-ranging law, as follows:

• Directs the Colorado civil rights division (division) to include “harassment” as a basis or description of discrimination on any charge form or charge intake mechanism;
• Adds a new definition of “harass” or “harassment” and repeals the current definition of “harass” that requires creation of a hostile work environment;
• Adds protections from discriminatory or unfair employment practices for individuals based on their “marital status”;
• Specifies that in harassment claims, the alleged conduct need not be severe or pervasive to constitute a discriminatory or unfair employment practice;
• For purposes of the exception to otherwise discriminatory practices for an employer that is unable to accommodate an individual with a disability who is otherwise qualified for the job, eliminates the ability for the employer to assert that the individual’s disability has a significant impact on the job as a rationale for the employment practice;
• Specifies the requirements for an employer to assert an affirmative defense to an employee’s proven claim of unlawful harassment by a supervisor; and
• Specifies the requirements that must be satisfied for a nondisclosure provision in an agreement between an employer and an employee or a prospective employee to be enforceable; and
• Requires an employer to maintain personnel and employment records for at least 5 years and, with regard to complaints of discriminatory or unfair employment practices, to maintain those records in a designated repository.

When reviewing the legislature’s summary of its new POWR Act, Colorado employers may wish to note the following fleshouts on some of those points:

• In revising the definition of prohibited “harassment,” the legislature has deleted the longstanding threshold requirement that harassment be “severe or pervasive.” In doing so the legislature noted that some threshold still needed to be met, in that “petty slights, minor annoyances, and lack of good manners” will generally not suffice. Future litigation will need to analyze how this new standard requiring more than “petty slights, minor annoyance, and lack of good manners” is different than the longstanding “severe or pervasive” standard. Further complicating future litigation will be the legislature’s observation in the POWR Act that this new standard will, like the prior standard, require an analysis of “the totality of the circumstances.”
• Additionally, in revising the definition of “harassment,” the legislature has revised the longstanding Ellerth-Faragher defense, in cases of prohibited harassment by supervisors, for employers who train against and take prompt and effective remedial steps to eliminate prohibited harassment. Now, Colorado law will require an employer, when sued for sexual harassment by a supervisor, in order to qualify for this affirmative defense, to prove that they had a “program” in place that is “reasonably designed” to “prevent” unlawful harassment and to “deter” unlawful harassment and to protect” employees from unlawful harassment, additionally, that they actually do take “prompt, reasonable action to investigate or address” complaints and incidents, and further that they actually do take “prompt, reasonable remedial actions, when warranted,” and also that they have “communicated the existence and details of the program.”
• Marital status itself will be a protected class.
  • The POWR Act does not define whether “marital status” means the status of being married, or whether it would include the status of being not married, being in a partnership relationship, being in a dating relationship, etc.
• The changes that apply to a “nondisclosure provision” are multi-faceted and warrant immediate review of any agreement that includes confidentiality language, whether an employment agreement, an NDA (non-disclosure agreement), a non-compete or non-solicit, etc., if “entered into or renewed on or after” August 7, 2023.
  • While employers will still be able to require confidentiality language that protects trade secrets, any “nondisclosure provision” will be void if it goes farther than that and “limits the ability of the employee or prospective employee to disclose, either orally or in writing, any alleged discriminatory or unfair employment practice.”
  • The legislature provided one exception for “nondisclosure provisions” that:
    • Applies “equally to all parties to the agreement,” apparently in other words, meaning confidentiality may be required if there is mutuality as to “all parties to the agreement,”
    • Expressly states
      • that it does not restrain the employee or prospective employee from disclosing
        • the underlying facts of any alleged discriminatory or unfair employment practice,” apparently, to anyone,
        • “the existence and terms of a settlement agreement” to
          • “the employee’s or prospective employee’s immediate family members, religious advisor, medical or mental health provider, mental or behavioral health therapeutic support group, legal counsel, financial advisor, or tax preparer,”
          • “any local, state, or federal government agency for any reason, including disclosing the existence and terms of a settlement agreement, without first notifying the employer,”
          • anyone “in response to legal process, such as a subpoena to testify at a deposition or in a court, including disclosing the existence and terms of a settlement agreement, without first notifying the employer,” or
          • anyone “for all other purposes as required by law,”
      • that, as for agreements that also contain a nondisparagement provision,
        • “disclosure of the underlying facts of any alleged discriminator or unfair employment practice within the parameters specified (above) does not constitute disparagement,”
        • if “the employer disparages the employee or prospective employee to a third party, the employer may not seek to enforce the nondisparagement or nondisclosure provisions of the agreement or seek damages against the employee or any other party to the agreement for violating those provisions, but all other remaining terms of the agreement remain enforceable,”
    • As for agreements that also contain a liquidated damages provision, the liquidated damages provision’s amount must be
      • “reasonable and proportionate in light of the anticipated actual economic loss that a breach of the agreement would cause,”
      • “varied based on the nature or severity of the breach,” and
      • not “punitive,”
    • Additionally, an “addendum” to the agreement must
      • be signed by all parties to the agreement
      • wherein each party must “attest to compliance with” new Colorado Revised Statute section 24-34-407(1)(a) (summarized above).
  • Not only does the failure to comply with this new law invalidate the non-disclosure (and non-disparagement) language (and related language like any related liquidated damages clause), but merely providing it to an employee or prospective employee also subjects an employer to claims by the employee, prospective employee, as well as the CDLE for damages, costs, attorney fees, penalties including a $5,000 penalty, which penalty may be reduced including to $0.00 if the employer proves “good faith.”
• The “repository” of complaints that will now be required to be maintained for at least 5 years must contain all written and oral complaints, the identity of each complainant (if known, in other words, if not anonymous), the identity of the alleged wrongdoer, and the substance of the complaint.
  • This repository must be kept separate from personnel records.
  • This repository is not open to public inspection.
  • However, employers should anticipate that all federal, state and local EEO agencies will demand to see it (as will litigants through discovery), though it is not clear if it must be made available to any agency other than the CDLE.

• Job/Promotional Posting Requirements: The Colorado legislature also amended its relatively recent job opening and promotional opportunity posting requirements, including, effective January 1, 2024:
  • As for “job opportunity” postings, employers have been required to post pay ranges, including benefits, now they will be required to post, in addition, the anticipated window when applications  will close.
    • A “job opportunity” is defined to be “a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts.”
    • A “vacancy” is defined to be “an open position, whether as a result of a newly created position or a vacated position.”
    • After filling a job opportunity, employers must disclose the following,
      • The name of the individual selected,
      • Their new job title,
        • And, if they were an internal hire, their former job title,
      • Information on how to apply for similar positions in the future.
      • Such notice must be given at least to the employees with whom that individual will work regularly
      • Such notice is not required if it would violate the selected individual’s privacy rights, health or safety.
  • No notice will be required for “career progressions,” which phrase is defined as
    • “a regular or automatic movement from one position to another,”
    • which is “based on time in a specific role or other objective metrics,”
    • so long as the employer has already disclosed to “all eligible employees the requirements for career progression, in addition to each position’s terms or compensation, benefits, full-time or part-time status, duties, and access to further advancement.”
  • Out-of-state employers will be partially and temporarily exempted from job posting requirements until July 1, 2029, so long as the company
    • has no physical location in Colorado,
    • has fewer than 15 workers in Colorado,
      • “all of whom work only remotely,”
    • and posts any “remote job opportunities.”

• HFWA/paid sick leave: In addition to existing HFWA paid sick leave requirements, Colorado workers will, effective August 7, 2023, be able to take HFWA paid sick leave for the following additional reasons:
  • grieving, funerals and memorials, financial and legal matters after the death of a family member,
  • caring for a family member whose school or place of care has been closed due to inclement weather, loss of power, heat, water, or other unexpected events,
  • evacuations of the worker’s residence due to inclement weather, loss of power, heat, etc.

• Job applications: Effective July 1, 2024, job applications in Colorado may not include questions related to age, date of birth, dates of attendance at education programs or graduation from them, unless required by federal, state or local law. (For readers who may have seen discussion of this new law, SB 23-058, in other resources, it has been colloquially referred to as the “Don’t Ask Applicants’ Age” law).

• Penalties related to service animals: HB 23-1032 revised the remedies for refusing to allow use of a service animal by disabled individuals to now include actual damages or a fine of $3,500 per violation.

• State actions to recover reimbursement of overdue wage payments: SB 23-231 allows the CDLE, through a t0-be-established wage theft enforcement fund, to pay employees overdue wages, if overdue by at least six months, then recover reimbursement from employers.

• Military leave: HB 23-1045 allows Colorado workers in the Colorado National Guard or U.S. reserves to take up to three workweeks (instead of Colorado law’s prior 15 days) of military leave for military training and, at their discretion, to take, as they do, available paid leave.