2023 saw Colorado’s legislature pass a series of new employment laws that have continued to shore up employee-friendly laws across the state. These include changes to the Colorado Equal Pay for Equal Work Act (CEPEWA), the Colorado Anti-Discrimination Act, the Colorado Healthy Families and Workplace Act (CHFWA), and the Colorado Paid Family and Medical Leave Insurance (FAMLI) Act. As a result of these changes, Colorado employers should take a look at their employment policies, agreements, handbooks, and other employment-related documents to ensure compliance with new laws and regulations. While we will not cover all of the changes here, we will review a couple of key changes. For additional questions or guidance, please reach out to employment attorneys Amanda Milgrom and Jason Fisher at Milgrom & Daskam.
The POWR Act (Protecting Opportunities and Workers Rights Act) was signed into law on June 6, 2023, and goes into effect August 7, 2023. It imposes a broader definition of harassment to include any unwelcome physical or verbal conduct and replaces the previous requirement of demonstrating a hostile work environment. Critically, the POWR Act adds new limitations to nondisclosure agreements by amending the Colorado Anti-Discrimination Act. It voids any nondisclosure agreement that limits an employee’s ability to discuss or disclose alleged discriminatory or unfair employment practices unless a series of conditions are included, including that it must expressly state that the nondisparagement does not limit the employee from disclosing the underlying facts of the alleged discrimination or unfair employment practice, including in a settlement agreement, to certain individuals such as family members and attorneys, governing agencies, in response to a subpoena, or otherwise required by law. And the penalties for violating this section of the POWR Act are not light – if an employer violates the restrictions of a nondisclosure agreement, employees may sue and recover a penalty of $5,000 for each violation, in addition to actual damages, reasonable costs, and attorney’s fees.
CHFWA has been updated to include new qualifying reasons for employees to use sick leave, including grieving, attending a funeral/memorial service, or handling financial and/or legal matters arising from the death of a family member; when caring for a family member whose school or place of care is closed due to weather, loss of power, loss of heating, loss of water, or other unexpected events resulting in closure; and when an employee must evacuate their place of residence due to weather, loss of power, loss of heating, loss of water, or other unexpected events resulting in evacuation.
CEPEWA, signed into law on June 5, 2023, was amended by Senate Bill 23-105 (Ensure Equal Pay for Equal Work Act) and will take effect on January 1, 2024. It expands the investigatory powers of the Colorado Department of Labor. Individuals making sex-based discrimination wage claims can now seek back pay for up to 6 years, doubling the previous time limit. It also modifies job posting disclosure requirements for employers. Employers with no physical presence in Colorado and fewer than 15 remote employees in Colorado are exempt from the detailed salary and benefit disclosures until July 1, 2029. Finally, it adds new disclosure requirements for job opportunities, including the inclusion of the anticipated closing date of the application window.