There is a POWR Shift Happening in Colorado’s Employment Landscape

Designed as a sweeping reform to the Colorado Anti-Discrimination (CADA) Act, the Protecting Opportunities and Workers’ Rights (POWR) Act was signed into law in June of 2023. The POWR Act, which is active as of August 7, 2023, provides more practical protections to workers who are facing discrimination, places the burden of innocence on employers, and outlines strict rules around non-disclosure agreements within the workplace.

Giving more protection to employees is always a good thing, but it requires many process changes for employers in Colorado. We’ll touch on some of the biggest changes set in motion by this law and address internal adjustments that will need to take place in order to maintain alignment with its requirements.

Worker Harassment Protections

For decades, workers who are filing workplace harassment suits have been placed with the burden of proving a “severe or pervasive” standard of proof. The POWR Act removes that point, lowering the standard and making it easier for workers to prove harassment. Instead, the heavier burden shifts to the employer to defend against the allegations made by workers.

Now, the term “harassment” is defined as, “unwelcome conduct that is subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class.” The conduct must also meet one of the three requirements to be considered illegal harassment:

1. Must be made explicitly or implicitly a term of employment for that particular individual.
2. An employment decision was made based on the conduct or communication in question.
3. The conduct interferes with the individual’s performance in the workplace, therefore creating an intimidating or hostile working environment.

If an employer chooses to assert affirmative defenses when harassment claims are made, they must be able to prove that there was an active program in place designed to prevent workplace harassment. This program must have been communicated clearly to employees and the employee making the claim must have failed to take advantage of the program. There must also be proof of an investigation or remediation into the harassment or employment practice that is central to the allegations.

Discrimination Modifications

The POWR Act adjusts some of the language used in the framework for disability discrimination. First, it adds marital status as a protected category to ensure that no employee faces discrimination because of who they are or are not married to. One example of this is members of the LGBTQIA+ community; if an employer discriminates against an employee because they do not agree with their relationship choices, that is now illegal, further protecting workers and providing equal employment opportunities for all.

Further, the POWR Act changes the framework surrounding disability discrimination. Before this law, it was not considered discriminatory or unfair to take action against employees with disabilities if there is no reasonable accommodation that can be made to allow the employee to successfully fulfill the job requirements. This new adjustment ensures alignment with the federal Americans with Disabilities Act requirements.

NDA Regulations

It’s not uncommon for employees to sign non-disclosure agreements prior to starting their employment contract. As of August 7, 2023, employers are much more limited with how and why they can enact or renew nondisclosure agreements. If any provisions within an NDA interfere with an employee’s ability to disclose or discuss discriminatory or unfair employment practices, the contract is now void. In order to maintain a valid status, NDAs must:

• Apply equally to the employer and the employee.
• Expressly state that the agreement does not apply to employees disclosing facts or figures around discriminatory or unfair practices to their immediate family members, government officials, or legal powers.
• Declare limits around any liquidated damages provision in the agreement and must include a reasonable amount that is proportionate.

In the past, NDAs have been exploited by employers in workplace discrimination or harassment cases, preventing employees from seeking help and getting the protections they need. With this law in place, employees are insulated from unfair treatment in the workplace and are protected if they need to escalate the situation to the proper authorities.

Record-Keeping Requirements

Under the POWR Act, employers must keep personnel records for at least five years. Personnel records can be anything related to requests for accommodation, employee complaints, employment applications, or any records related to hiring, promotion, demotion, transfer, or other job changes.

There must also be a designated repository of written and oral complaints of discrimination or employment practices that are being called into question. These records must include the date of the complaint, the parties involved, and the details alleged.

Preparation Suggestions for Employers

Employers in Colorado have their administrative work cut out for them with this law in place. Keep in mind that worker protection infrastructure is a win for everyone, employers included. If you lead an organization in the state, consider prioritizing the following:

• Review and adjust internal documents that define workplace harassment or unfair practices to ensure alignment with new definitions in the POWR Act.
• Develop a training plan for all HR professionals and people managers to clarify expectations and process changes.
• Update record-keeping processes to maintain a running 5-year repository of all employment-related documents and files.
• Update your accommodation processes and protect workers with disabilities by creating a policy of zero-tolerance when it comes to managers failing to accommodate workers with disabilities.

Failure to Act

If you are found out of compliance with the POWR Act, there is a variety of consequences depending on your violation. For instance, if you violate non-disclosure requirements, your organization is liable for actual damages AND a penalty of $5,000 per violation. Take the time now to align internal processes and structures with the POWR Act to avoid headaches down the line.

For HR leaders, changing legal requirements can add a lot to the to-do list, but it’s important that we continue to see ourselves as partners with our employees and stay committed to creating the safest work environment possible.