In a significant legislative session, Colorado’s employment law landscape underwent some fairly drastic changes in 2023. The state legislature passed a series of laws that touch upon various aspects of the employment life cycle, from hiring practices to harassment and discrimination claims, paid leave, record-keeping obligations, non-disclosure agreements, and more. Below we will briefly review several changes to Colorado law that are impacting how employers and employees interact in the Centennial State.
The Sweeping POWR Act: Raising the Bar on Harassment Claims and Protecting Marital Status
Arguably the most far-reaching change of this legislative session, the Protecting Opportunities and Workers’ Rights (POWR) Act came into effect on August 7. Among its many provisions, two changes have gained significant attention.
First, the POWR Act redefines the standard for harassment claims in Colorado, representing a seismic shift in how employees can establish such claims. Unlike the previous “severe or pervasive” standard, which mirrored federal law, the new act articulates distinct criteria. Harassment is now defined as any conduct or communication 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.” Although the exact contours of this standard remain open to legal interpretation, it undeniably lowers the threshold for viable harassment claims under the Colorado Anti-Discrimination Act (CADA).
Secondly, the POWR Act takes a bold step in protecting “marital status” as a category in the employment context. While marital status was previously safeguarded in places of public accommodation, its inclusion in employment protection is worthy of note. Employers in Colorado are now prohibited from taking adverse actions based on an employee’s marital status.
The POWR Act’s significance extends further, imposing stringent non-disclosure requirements on agreements that limit discussions about discriminatory or unfair employment practices. Non-compliant agreements could lead to substantial monetary fines. Moreover, the act compels employers to retain all personnel or employment records for at least five years, creating a structured repository for complaints related to discriminatory or unfair employment practices.
Healthy Families & Workplaces Act: A Broader Horizon for Sick Pay Obligations
Another legislative active, which was effective as of August 7, is the expansion of sick pay entitlements under the Healthy Families & Workplaces Act (HFWA). Since 2021, the HFWA mandated Colorado employers to provide up to 48 hours of paid sick leave for various reasons, including personal illness and caring for family members. The amended law extends these reasons to include attending funerals, addressing unexpected events like inclement weather, and evacuations due to closures of family members’ schools or care facilities.
Conversely, the obligation to provide supplemental paid leave for COVID-19-related conditions, active since January 1, 2021, concluded on June 9, 2023, aligning with the expiration of public health emergency declarations related to the pandemic. However, a revival of this obligation is possible in the face of future public health emergencies.
Equal Pay for Equal Work Act: Navigating New Disclosure Obligations
The Equal Pay for Equal Work Act (EPEWA), which took effect in 2021, has undergone amendments slated for January 1, 2024. These amendments expand disclosure requirements in recruitment and post-hire stages. Employers are now required to notify Colorado employees of job opportunities within the organization, including compensation and benefits details, prior to selection decisions. However, promotions involving career progression – such as an employee moving from a junior associate to a senior associate role as they gain seniority – are exempt from these posting and disclosure obligations.
Additionally, employers must announce the name and job title changes of selected candidates within 30 days of their start date, ensuring transparency in the selection process. This move is accompanied by an extension of the time period during which employees can seek back pay for gender-based pay disparities, now stretched from three to six years.
Job Application Fairness Act: Countering Age Discrimination
Scheduled to take effect on July 1, 2024, the Job Application Fairness Act (JAFA) tackles age discrimination in the hiring process. To help prevent age related bias, the act prohibits employers from seeking certain age-related information during initial job applications. While employers can verify age compliance with legal requirements, they cannot inquire about dates of birth, attendance at educational institutions, or graduation dates. Notably, compliance verification for age-related requirements, such as employing minors or certain qualifications, remains permissible.
In Conclusion
Colorado’s 2023 legislative session delivered some significant changes for employment law in the state. With the implementation of the POWR Act’s modified harassment claims criteria and protections for marital status, the expansion of sick pay entitlements under the HFWA, the amendments to the EPEWA’s disclosure obligations, and the impending enactment of JAFA’s age-related inquiry restrictions, employers must navigate these changes carefully. As Colorado’s commitment to fostering equitable and inclusive workplaces takes center stage, employers and employees alike must adapt to this evolved legal landscape to ensure compliance.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://
