POWR Act (SB23-172) – New Legislation for Colorado Employers Effective Aug. 7, 2023

Posted by: Karen Booher on July 3rd, 2023

During the 2023 legislative session, Colorado enacted more protections for employees in the workplace. One new law, Protecting Opportunities and Workers’ Rights (POWR) Act, Senate Bill 23-172, substantially expands Colorado’s anti-harassment law and restricts confidentiality agreements.

Attorneys J. Kohler and M. Wiletsky of Holland & Hart LLP summarize the key changes of this new law as follows:

Nondisclosure/Confidentiality Provisions

Agreements, including separation and settlement agreements, that limit current or prospective employees from discussing discriminatory or unfair employment practices are void unless:

1. The provision applies equally to the employer;
2. The provision expressly states that it does not restrain the employee from disclosing the underlying facts of any alleged discriminatory or unfair employment practice (including disclosure to immediate family members, health providers, or religious advisors, among others) and that such disclosure does not constitute disparagement;
3. The agreement states that an employer cannot enforce a nondisparagement or nondisclosure provision (or seek damages under the same) if the employer disparages an employee or prospective employee;
4. If the agreement includes a liquidated damages provision, such liquidated damages meet requirements listed in the statute: the damages must be reasonable and proportionate in light of the anticipated economic loss, not punitive, and varied based on the nature of the severity of the breach; and
5. The agreement includes an addendum attesting to compliance with the law signed by all parties.

Workplace Harassment

Federal law has long required employees to establish that harassment based on race, sex, or other protected characteristics was either severe or pervasive. In other words, an offhand comment or comments that are offensive may not be enough to establish a hostile work environment. The POWR Act eliminates that requirement.

If 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, then an employee no longer needs to show that the conduct or communication was severe or pervasive. Therefore, one comment or a single, non-severe incident may give rise to a claim.

The POWR Act further clarifies that the nature of the work or the frequency with which harassment in the workplace occurred in the past is no longer relevant. Petty slights, minor annoyances, and lack of good manners can meet the new standard for unlawful harassment depending on the totality of circumstances, with various factors listed in the statute.

Finally, the law codifies a common affirmative defense against claims of harassment by supervisors only if certain conditions are met. Among other requirements, an employer must show:

• it had a program in place to prevent, deter, and protect from harassment;
• the program was communicated to employees;
• and the employee(s) claiming harassment unreasonably failed to take advantage of the program.

Recordkeeping

The POWR Act also requires personnel and employment records (requests for accommodation, employee complaints, applications for employment, etc.) to be retained for five years after the record is received or created.

This blog does not constitute legal advice. It is recommended to consult with legal counsel regarding your company’s anti-harassment policies and confidentiality/nondisclosure agreements.

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Source:

ASA Staffing Today, 6/20/2023. “Shifting Landscape: New Laws Significantly Impact Colorado Employers”, JDSUPRA, by Joshua Kohler and Mark Wiletswky, Holland & Hart LLP, June 8, 2023.