Protecting Opportunities and Workers’ Rights (POWR) Act (SB23-172)

Arguably the most consequential bill, POWR Act resurfaced this year and is now on the Governor’s desk for signature. In addition to adding marital status as a protected class, establishing that a “reasonable accommodation” is one that would allow the individual to satisfy the essential functions of the job, and placing conditions on non-disclosure/confidentiality and non-disparagement agreements, POWR also addresses unlawful harassment.

First, POWR eliminates the “severe and pervasive” standard of proof for harassment claims when: (1) submission to conduct or communication is explicitly or implicitly a term or condition of employment; (2) submission to, objection to, or rejection of the conduct or communication is used as a basis for employment decisions; or (3) the conduct or communication has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.

If one of those three circumstances are present, the bill states that conduct or communication can be unlawful if it 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. POWR further clarifies that the nature of the work or the frequency with which harassment in the workplace occurred in the past is no longer relevant.

Second, POWR denotes that petty slights, minor annoyances, and lack of good manners can meet the new standard for unlawful harassment depending on the totality of circumstances, which factors are enumerated in the bill and include (but are not limited to):

• the frequency of the conduct or communication, recognizing that a single incident may rise to the level of harassment,
• the number of individuals engaged in the conduct or communication, and
• whether any power differential exists between the individual alleged to have engaged in harassment and the individual alleging the harassment.

Third, POWR codifies a common affirmative defense against claims of harassment if, among other requirements, an employer can show that it had a program in place to prevent, deter, and protect from harassment; the program was communicated to employees; and the employee(s) claiming harassment unreasonably failed to take advantage of the program.

Takeaway: POWR, if signed by the Governor (as some expect he will), may present significant problems for employers when addressing interpersonal workplace issues. It will be critical moving forward that employers establish anti-harassment policies and programs, to the extent not in place already, and ensure strict compliance with POWR’s requirements. Moreover, it remains uncertain how courts will interpret and apply POWR in conjunction with the current body of case law.

Ensure Equal Pay for Equal Work (SB23-105)

This bill expands the previous iteration and requires employers to:

• Make reasonable efforts to announce or post “job opportunities” rather than just “promotional opportunities”
• Make reasonable efforts to announce or post, within 30 days after a candidate begins work, the following information to employees with whom the candidate will work with regularly: (a) name of the candidate, (b) the candidate’s former job title (if an internal hire), (c) the new job title, and (d) information on how employees may demonstrate interest in similar job opportunities in the future, including identifying individuals or departments to whom the employees can express interest in similar job opportunities.
• And for positions with career progression, disclose and make available to all eligible employees the requirements for career progression, in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement.

Takeaway: While not a drastic departure from the current Equal Pay for Equal Work Act, this bill does impose more obligations on employers. If signed into law, employers should review and revise their job posting processes to comply.

Additional Uses of Paid Sick Leave (SB23-017)

While the Public Health Emergency Leave provided under the Colorado Healthy Families and Workplaces Act (HFWA) is set to expire on June 8, 2023, the Governor may be adding to what qualifies for use of regular paid sick leave under the law. Specifically, employees will be entitled to use paid sick leave (if available) to: (1) grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member; and (2) care for a family member whose school or place of care has been closed—or to evacuate the place of residence–due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in closure or the need to evacuate.

Takeaway: In anticipation of this bill being signed into law, employers are encouraged to review and revise their current HFWA-compliant policy to include the additional usages for paid sick leave.