Colorado Takes A Stand With New Harassment And Nondisclosure Agreement Rules
On June 7th, 2023, Governor Jared Polis signed the Protecting Opportunities and Workers’ Rights (POWR) Act into law, bringing significant changes to Colorado’s employment discrimination legal landscape. The POWR Act expands the Colorado Anti-Discrimination Act (CADA), aiming to enhance protections for work and create a more inclusive and equitable work environment. Let’s explore the key provisions of the POWR Act and discuss its potential impact on Colorado employers and employees.
Broadening The Definition Of Harassment
One of the central changes introduced by the POWR Act is expanding the definition of harassment. The act replaces the previous definition, which required the creation of a hostile work environment based on specific protected characteristics, such as race, national origin, sex, sexual orientation, gender identity, gender expression, disability, age, or religion. The new definition established a lower threshold of proof, making it easier for employees to bring harassment claims.
By broadening the definition of harassment, the POWR Act recognizes the importance of addressing all forms of workplace harassment, regardless of the specific protected characteristics involved. This change provides employees with greater legal recourse and promotes a safer and more respectful work environment.
Changes To Affirmative Defenses
The POWR Act also imposes higher evidentiary standards on employers for affirmative defenses. Affirmative defenses are legal arguments that employers can raise to defend against certain discrimination claims. The act raises the bar for employers by requiring them to meet a more rigorous evidentiary standard when using these defenses. This change aims to ensure that legitimate claims of discrimination are not dismissed or undermined due to technicalities or weak defenses.
Expanded Protections And Nondisclosure Agreements
In addition to broadening the definition of harassment and strengthening affirmative defenses, the POWR Act introduces new protections and requirements. It adds “marital status” as a protected characteristic under the CADA, recognizing the importance of preventing discrimination based on marital status.
The Colorado Civil Rights Commission has the authority to take legal action against employers who present employees with agreements that do not comply with the act’s requirements. In such cases, employees or prospective employees have the right to seek compensation for actual damages, along with reimbursement for costs and attorney’s fees incurred during the legal proceedings. Any employer found to have violated this provision is subject to liability for both actual damages and a penalty of $5,000 per violation. However, the penalty amount may be reduced if the employer can demonstrate good faith in their actions. On the other hand, if multiple agreements are found to violate the nondisclosure provisions, such evidence can be used to support an award of punitive damages. This provision aims to deter employers from repeatedly violating the act’s requirements and underscores the seriousness of nondisclosure agreement violations.
Recordkeeping Obligations And Funding
The POWR Act imposes an additional recordkeeping obligation on employers to promote accountability and transparency. This requirement aims to enhance the monitoring and reporting of discrimination incidents and provide accurate data to identify trends and areas of concern.
To support the implementation of the POWR Act, the legislation appropriates approximately $1.2 million from the general fund for the fiscal year 2023-24. This funding will be crucial in ensuring that the necessary resources and infrastructure are in place to enforce the new provisions effectively.
Implications For Employers
The signing of the POWR Act places a greater responsibility on employers to ensure their workplaces are free from discrimination and bias. Employers will need to review and revise their policies and practices to align with the expanded protections and requirements under the legislation. Training programs and initiatives promoting diversity and inclusion will become even more crucial to foster a respectful and equitable work environment.
It’s essential for employers to familiarize themselves with the provisions of the POWR Act to ensure compliance and avoid legal consequences. Seeking legal counsel or consulting human resources professionals can provide guidance on necessary adjustments and best practices for promoting equality and diversity within the workplace.
Is Partnering With A PEO The Right Solution?
Implementing the changes brought about by the POWR Act can be a complex task, especially for small business owners in Colorado who may have limited resources and expertise in employment law. In such cases, partnering with a professional employer organization (PEO) can be a game-changer. A PEO like GMS offers a comprehensive suite of HR services, including legal compliance support, policy development, training programs, and recordkeeping assistance.
By leveraging the expertise of a PEO, small business owners can navigate the intricacies of the POWR Act with confidence, ensuring that their employment practices align with the expanded protected classes, harassment definitions, and affirmative defense requirements. We act as your knowledgeable guide, helping business owners stay updated on legislative changes, providing tailored solutions, and ultimately fostering a workplace environment that promotes diversity, equity, and inclusion. With the support of GMS, small businesses in Colorado can effectively implement the changes mandated by the POWR Act while focusing on their core operations and fostering a culture of fairness and respect. Contact our HR experts today to learn more.