Governor Polis Signs Multiple Laws Further Changing the Colorado Employment Law Landscape
Rob Thomas, Of Counsel
In recent months, The Rocky Mountain Employer has covered multiple pending bills before the General Assembly which had the potential to further change and expand employer obligations in Colorado. Many of these bills have now been signed into law, and employers should take note.
Protecting Opportunities and Workers’ Rights Act (POWR Act), Effective August 7, 2023
Years after it was first introduced, the POWR Act (SB 23-172) was signed into law on June 6, 2023, and will be effective as of August 7, 2023. As previously discussed in the Rocky Mountain Employer,[1] among other things, this law dramatically lessens the burden of proof that employees must meet in order to state viable workplace harassment claims under Colorado law, while including “unwelcome” physical or verbal conduct within the definition of harassment. Most significantly, the POWR Act no longer requires employees to show a hostile work environment characterized by severe or pervasive harassing conduct (although this showing is still required under federal law) in order to state a viable harassment claim. Whether conduct is harassing also includes subjective and objective considerations, including whether the conduct was subjectively offensive to the individual alleging harassment as well as objectively offensive to a reasonable individual who is a member of the individual’s protected class.
Employer affirmative defenses to harassment are also curtailed under the POWR Act unless the employer can establish that it maintains a program designed to prevent and deter harassment and to prevent employees from being harassed, and that the aggrieved employee “unreasonably” failed to take advantage of the employer’s program. The POWR Act also adds “marital status” as a protected class to Colorado’s anti-discrimination laws, and significantly limits nondisclosure and confidentiality agreements that employers may utilize when such agreements purport to limit an individual’s ability to disclose or discuss alleged discrimination or unfair employment practices.
Equal Pay for Equal Work Act Amendments Effective January 1, 2024
Starting in 2024, employers grappling with Colorado’s Equal Pay for Equal Work Act requirements regarding job postings and promotional opportunities will need to contend with additional amendments to the Act, as set forth in SB23-105[2] and which were also signed into law by Governor Polis on June 5. In relevant part, the amendments will no longer require employers to post and disclose every promotional opportunity based on in-line promotions made pursuant to objective benchmarks (such as when an employee is set to move from Sales Associate I to Sales Associate II on a specifically-defined path), but employers must disclose requirements for “career progression” opportunities (i.e. how employees may progress from Sales Associate I to Sales Associate II and beyond), including compensation, benefits, duties, and access to further advancement.
The amendments also further define job posting and promotional opportunity disclosure requirements in the context of remote employees and employers, and also require employers to provide information about employees selected for a job opportunity to other employees who will regularly work with the selected employee (name, job title, former job title, etc.), unless doing so would jeopardize the selected employee’s health or safety, or applicable privacy rights.
Bereavement Leave Permissible as HFWA Leave as of August 7, 2023
Also signed into law and effective August 7, 2023, SB23-017[3] adds additional qualifying reasons for paid sick leave required by the Healthy Families and Workplaces Act (“HFWA”). Most notably, bereavement leave to grieve the loss of a family member, or to attend funeral services or make other financial or legal arrangements for the deceased family member, is now considered qualifying leave under the HFWA. Employees may also use HFWA leave when they need to evacuate their place of residence due to inclement weather, or care for family members whose school or place of care has been shut down due to inclement weather.
Age-Related Inquiries in Job Applications Prohibited Starting July 1, 2024
Last, starting July 1, 2024, under SB23-058 (signed into law on June 2), employers will not be permitted to ask for the age-related information of job applicants, including birthdates or other age-identifying information such as school graduation dates.[4] However, such information may be requested when age is a bona fide occupational qualification based on public or occupational safety, or when otherwise required by law. Employers should audit their hard-copy and online application materials to ensure that their applications comply with SB23-058 ahead of the July 1, 2024 effective date.
Moving Forward
The first half of 2023 has continued Colorado’s trend of sweeping changes to the employment landscape for employers, which shows few signs of slowing down. Campbell Litigation will continue to monitor new and amended legislation affecting Colorado employers and is available to assist employers with navigating these new laws and requirements.
[1] https://www.rockymountainemployersblog.com/blog/2023/4/13/colorado-seeks-to-redefine-harassment-in-employment-discrimination-cases.
[2] https://www.rockymountainemployersblog.com/blog/2023/5/4/colorado-is-poised-to-enact-stronger-enforcement-measures-and-job-opportunity-posting-requirements-under-the-equal-pay-for-equal-work-act.
[3] https://leg.colorado.gov/bills/sb23-017.
[4] https://www.rockymountainemployersblog.com/blog/2023/5/18/employment-law-legislation-update.