After several attempts, POWR (the Protection for Opportunities and Workers’ Rights Act) became effective in Colorado in 2023. POWR implements some notable changes to Colorado discrimination law and non-disclosure/confidentiality clauses between employers and employees.
POWR adds marital status as a protected class under the Colorado Anti-Discrimination Act (CADA), and removes the “severe and pervasive” standard for hostile work environment that has caused continual confusion and litigation.
POWR also includes a number of new requirements for employers and employees who enter into confidentiality/non-disclosure and non-disparagement agreements. If an agreement includes a confidentiality or NDA clause, POWR requires that the clause 1) be mutual, 2) allows the employee to discuss the facts underlying any unfair employment practices — including the existence of the settlement agreement — with specific individuals and entities without being in violation of the agreement, and 3) is referenced by an addendum to the agreement signed by both the employer and employee . POWR also requires that any liquidated damages provision reflect actual anticipated economic loss to the employer, and that any non-disparagement clause contain a condition that if an employer disparages an employee then the employer is prohibited from enforcing the agreement’s non-disparagement or non-disclosure clauses against the employee.
To enforce these requirements, POWR creates a $5,000 penalty for employers who present agreements that violate POWR’s requirements to employees, and creates a new right of action for employees under which employees may recover actual damages, reasonable costs, and attorney’s fees as well.
Finally, POWR introduces new record keeping requirements for employers. Employers are required to maintain, for 5 years, “personnel or employment records” that include requests for accommodation, employee complaints (either oral or written) of discrimination or unfair employment practices, employment applications, records relating to hiring, promotion, transfer, layoff, termination, rates of pay, and other compensation, selection for training or apprenticeship, and training records. Employers should note that these same personnel or employment records are required to be provided to an employee upon request under the pre-existing C.R.S. 8-2-129.
If you have questions about how POWR or any of Colorado’s other employment laws apply to you, we would be happy to discuss these changes with you.
