Colorado’s New Employee Protections Law: POWR

Colorado recently enacted a law with broad new protections for employees.

Among other items, the Protecting Opportunities and Workers’ Rights Act (POWR) addresses:

• Workplace harassment claims
• Nondisclosure agreements
• Employees and applicants with disabilities
• Recordkeeping requirements

Colorado Gov. Jared Polis signed the bill June 6, 2023, and its provisions went into effect about a month later, Aug. 7, 2023.

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Colorado’s New Employee Protections Law

The POWR Act beefs up Colorado’s anti-discrimination laws in a number of ways.

Workplace Harassment Claims

To begin, Colorado’s new law lowers the standard for workplace harassment claims, moving on from a severe or pervasive standard.

Instead, unwelcome conduct is defined as that which is “subjectively offensive to the individual alleging harassment and objectively offensive to members of the same protected class as the individual alleging harassment, and which conduct need not be severe or pervasive to constitute a discriminatory or an unfair employment practice.”

Meanwhile, to prove workplace harassment, the law outlines the general conditions for workplace harassment:

• Submission to the conduct or communication is explicitly or implicitly made a term or condition of the person’s employment
• Subjection to or objection to the conduct or communication is used as a basis for the employment decision affecting the employee
• The conduct or communication has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile or offensive working environment

Also, the new Colorado law specifies the requirements for an employer to assert a defense to an employee’s proven claim of unlawful harassment by a supervisor. Employers must establish that there was a program in place to prevent harassment and the employee bringing the claim failed to utilize the program.

Nondisclosure Agreements

For nondisclosure agreements, Colorado’s law specifies the requirements that must be satisfied for the agreement to be enforceable.

Nondisclosure agreements would be void unless they meet several requirements, including:

• The provisions apply equally to all parties
• The agreement expressly states that it does not block the individual from disclosing the underlying facts of an alleged discriminatory or unfair employment practice

Employees and Applicants with Disabilities

Next, Colorado’s POWR Act addresses disability discrimination.

The new Colorado law says it is not a discriminatory or unfair employment practice to take adverse action against an individual with a disability if there is “no reasonable accommodation that the employer can make with regard to the disability that would allow the individual to satisfy the essential functions of the job.”

The law also adds protections from discriminatory or unfair employment practices for individuals based on their marital status.

Recordkeeping Requirements

Finally, the law also adds recordkeeping requirements.

It requires employers to maintain personnel and employment records for at least five years and, with regard to complaints of discriminatory or unfair employment practices, to maintain those records in a designated repository.

Employment Law Compliance Resources

Employment Law Compliance

The passage of Colorado’s new employee protections law illustrates the compliance challenges for large employers operating in jurisdictions across the U.S. (Look to the new Edgewater, Colo., minimum wage law for a local example.)

Legislation continues to grow and evolve. It’s not simply labor law posters, minimum wage rates and paid leave laws anymore.

From hair discrimination laws to protections for recreational marijuana use, large employers have plenty to consider. That spans hiring laws such as ban the box to payout of unused vacation time upon separation.

Meanwhile, existing laws continue to be updated, whether through tweaks to language of statutes or government officials handing down additional guidance.

Lastly, there has also been a rise of class-action lawsuits in employment law, and the current presidential administration has been aggressive in investigating employers suspected of violations.

The complexities of employment law compliance have never been more challenging for employers.

Conclusion

Employers with locations in Colorado should review their practices and procedures to align with the state’s new employment protections.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.