POWR Act Checklist: A Guide to Colorado's Anti-Discrimination Act

POWR Act Checklist: A Guide to Colorado’s Anti-Discrimination Act

Colorado’s Promoting Opportunities and Workers’ Rights (POWR) Act introduces significant changes to the state’s anti-discrimination laws, impacting how employers manage workplace fairness and employee rights. POWR takes progressive steps to promote workplace equality.

Here’s what HR professionals need to know about implementing the POWR Act and how Mosey can help with business compliance.

What Is Colorado’s POWR Act?

The POWR Act expands federal protections against discrimination and harassment in the workplace. POWR runs concurrently with all federally required anti-discrimination laws, taking them several steps further to address common concerns and build a balanced workforce for all people.

The POWR Act takes a much stronger stance on workplace harassment, disability accommodation, and classes of people who would be considered members of a protected class under the law.

The POWR Act also mandates specific requirements for employers regarding reasonable accommodations and anti-harassment measures. POWR is designed to promote workplace fairness, equality, and employee well-being across Colorado.

When Does the POWR Act Go Into Effect?

The POWR Act went into effect on August 7th, 2023. Since then, Colorado employers have been required to comply with its provisions regarding anti-discrimination practices and eliminating a hostile work environment.

What Are Workplace Discrimination Laws?

Workplace discrimination laws prohibit employers from treating employees or job applicants unfavorably based on protected characteristics such as race, color, religion, gender, national origin, age, disability, or genetic information. Anti-discrimination laws ensure fair treatment in hiring, promotion, compensation, and other employment practices.

How Does the POWR Act Compare to Federal Anti-Discrimination Laws?

While federal laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) provide fundamental protections against discrimination, the POWR Act expands upon these protections in several ways.

Expanded Protected Classes

The POWR Act is designed to protect people from harassment based on more than just their status as a protected class. Employees are shielded from harassment or discrimination based on their sexual orientation, gender identity, and marital status, providing broader protections than federal law.

Reasonable Accommodations

The POWR Act requires employers to provide reasonable accommodations to employees and job applicants with temporary disabilities or permanent ones. Federal laws also mandate reasonable accommodations, but the scope of these accommodations is limited to certain types of disabilities or accommodations required by workers’ compensation.

How Has the POWR Act Expanded the Definition of Harassment?

The POWR Act helps protect employees from a hostile work environment. The traditional definition of workplace harassment requires a higher threshold to prove that actions constitute harassment. POWR significantly lowers that threshold.

Any conduct that would be perceived to be reasonably offensive or hostile towards another employee can constitute harassment. Unwelcome conduct relating to someone’s status as a member of a protected class (or perceived member of such class) can be considered harassment.

Additionally, any conduct meant to threaten, intimidate, or interfere with someone’s ability to do their job is considered harassment.

HR managers have an enhanced responsibility to prevent a hostile work environment and protect employees who have been subjected to hostile conduct in the workplace. Organizations may consider strengthening employee disciplinary policies and plans to deter hostile conduct and protect employees from harassment.

Sensitivity, diversity, and harassment training can help set clear expectations for employee behavior under the enhanced harassment protections. Update your employee handbook to reflect inclusive policies and your employee code of conduct.

What Limits Does The POWR Act Place on Non Disclosure Agreements?

In many states, it’s common for employers to utilize nondisclosure agreements (NDAs) to protect trade secrets or sensitive company information. Colorado significantly limited acceptable use cases for NDAs in the past, and the POWR Act has all but eliminated them.

Now, NDAs can only be entered into by high-salary employees (making an annual salary of at least $123,750) and can only be used to protect trade secrets. This means that most employees cannot be asked to sign nondisclosure agreements.

There’s also a wider window for the enforcement of NDA agreements. Employees now need at least 14 days’ notice before an NDA officially takes effect.

Some employees are still allowed to sign non solicitation agreements that prevent them from using trade secrets or sensitive information to solicit (or poach) customers. However, only well-compensated employees (making $74,250 or more per year) can be asked to enter non solicitation agreements.

How To Comply With Colorado’s POWR Act

To ensure HR compliance with Colorado’s POWR Act, you should review your current policies and practices. This is especially important for multi-state employers based outside of Colorado who may currently use policies or practices that don’t meet the POWR Act’s standards.

Review and Update Policies

POWR touches on two important areas: discrimination and accommodations. Review your existing policies and make updates where necessary.

For example, if your company traditionally uses nondisclosure or non solicitation agreements, you may want to change your approach to information sharing to protect sensitive info while remaining compliant with the POWR Act.

Anti-Discrimination Policy

Develop or update your anti-discrimination policy to include all protected classes under the POWR Act. Ensure policies are clear, accessible, and communicated to all employees. Many organizations have proactively updated policies to be more inclusive.

If your company already uses progressive anti-discrimination practices, double-check to verify they’re compatible with Colorado’s expanded definition of protected classes.

Reasonable Accommodations

Establish procedures for evaluating and responding to requests for reasonable accommodations. The POWR Act clearly states that a disability shouldn’t exclude someone from a job offer or cause them to be transferred to a different position if it’s possible to accommodate their needs and they’re qualified for their position.

Nondisclosure and Non-Solicitation Agreements

Most of your employees cannot legally sign nondisclosure agreements, and many won’t be able to sign non-solicitation contracts, either. Make sure that employees asked to sign agreements meet the salary thresholds for the type of agreement they’re being asked to sign.

Additionally, ascertain that the agreements they’re given are enforceable under the law. Have your legal team review agreements before they’re provided to employees.

If you have trade information you’d like to keep secret, but the POWR Act prohibits you from using agreements, you may want to re-evaluate how information is shared in your workplace and how access to specific documents can be granted.

However, your inability to use NDAs and nonsolicitation agreements does not forbid you from withholding sensitive information from lower-level employees who cannot enter into these contracts.

Train Employees and Managers

Employees and managers should be trained to follow POWR guidelines, which may or may not be compatible with your company’s current diversity, anti-discrimination, and workplace harassment training. You may need to update your training materials or create new ones that reflect POWR’s expanded protections.

Managers and supervisors should also be trained in handling complaints and accommodation requests under the POWR Act.

Implement Anti-Retaliation Measures

Create or update policies prohibiting retaliation against employees who report discrimination, harassment, or request accommodations. All employees are protected from retaliation for exercising their rights under state and federal laws.

Establish clear procedures for reporting discrimination complaints or retaliation concerns. Complaints must remain confidential to protect the individual who experienced discrimination or retaliation in the workplace.

Monitor and Evaluate Compliance

POWR might change how your organization is accustomed to doing things, especially if you’re a multi-state business moving into Colorado. Periodically audit compliance by checking pay rates and evaluating workplace diversity.

Store Your Documents

Colorado employers are required to keep all employment files and formal complaints on record for at least five years. These documents can be used to audit an organization’s compliance with the POWR Act.

What Happens if Employers Violate the POWR Act?

The State of Colorado penalizes POWR Act violations with a fine of $5,000 per individual violation. Employees are also entitled to actual damages (such as the difference in pay disparity they’re owed), legal fees, and other reasonable costs (like reimbursement for purchasing their own workplace accommodations).

Stay Compliant with Mosey

Mosey’s compliance management platform allows employers to track state compliance across payroll, HR, tax, and registration. Our compliance automation streamlines issues into an organized and informational list that allows you to track important information that impacts how you create policies and run your business.

We’ll provide you with a detailed list of requirements and an easy way to monitor your compliance status. This is especially helpful for multi-state employers who may need to navigate multiple sets of state requirements. Schedule a demo with Mosey to learn how we can simplify compliance tracking for your Colorado business.

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