In an ongoing effort to address workplace harassment and promote transparency, the state of Colorado has implemented new rules regarding harassment and nondisclosure agreements (NDAs). These rules aim to protect employees’ rights and provide a safer work environment for everyone.
The law introduces several significant modifications, including revised criteria for harassment claims, strict new conditions for nondisclosure provisions, the addition of marital status as a protected characteristic, and new rules regarding the maintenance of personnel records.
According to our partners at Littler, the law is not retroactive—it applies to “employment practices occurring on or after the effective date of the law, which is 90 days after the adjournment of the Colorado General Assembly.” This means the official effective date of the law is August 7, 2023.
In this post, we will explore the key aspects of Colorado’s regulations and their potential impact on businesses and employees.
1. Impact on businesses
These new rules have significant implications for employers in Colorado. Organizations must review their current policies, procedures, and employment agreements to ensure compliance with the updated regulations. NDAs in the employment context must be revised to ensure compliance with the state’s new requirements.
Furthermore, companies should invest in comprehensive harassment prevention training to educate employees about their rights and responsibilities. Proactive measures can help create a culture that rejects harassment and promotes a respectful workplace.
Through training, an employer can communicate the existence and details of its prevention program to employees, as required. It also helps show that an employee’s failure to take advantage of the program, for example by reporting harassment, is unreasonable under the circumstances. And, it helps ensure that it is able to take prompt action to investigate and address misconduct, as well as to remedy situations when appropriate.
2. Restricting the use of nondisclosure agreements
Colorado’s new rules significantly limit the scope of nondisclosure agreements in cases involving discriminatory or unfair employment practices Employers have long used NDAs to protect their business interests and keep employees from discussing sensitive information relating to a range of topics, including discrimination and sexual harassment claims. However, the state now has adopted strict rules about including confidentiality clauses in these employment agreements.
Once these changes go into effect, employers who present or otherwise try to use noncompliant nondisclosure agreements with employees risk legal consequences, including statutory penalties, damages, costs, and attorneys’ fees. Colorado employers should consult with legal counsel before using nondisclosure agreements with their employees in the future.
3. Whistleblower protections
The new legislation also strengthens protections for whistleblowers who report workplace harassment. Employers are now prohibited from taking retaliatory action against employees who disclose information about harassment, even if they have signed an NDA. This provision encourages individuals to come forward without fear of reprisal and helps create a safer and more supportive work environment.
4. Expanded definition of harassment
Colorado has expanded its definition of harassment to include unwelcome conduct based on several protected categories, such as race, color, religion, sex, age, national origin, disability, and sexual orientation. This broadened definition ensures that employees are protected from all forms of harassment and discrimination, fostering a more inclusive and respectful work environment.
