As discussed in a previous bog post [July 26, 2023], the Protecting Opportunities and Workers' Rights Act ("POWR") went into effect in August of 2023. The law contains several distinct provisions, including significantly changed the standards for harassment under Colorado law and limitation on non-disclosure agreements which limit an employee's ability to disclose unfair employment practices.
The law requires employers to keep a repository of discrimination and harassment complaints. For each complaint, the repository must include:
- The date of the complaint;
- The identity of the complaining party, if the complaint was not anonymous;
- The identity of the perpetrator who allegedly conducted the discrimination or harassment;
- The substance of the complaint.
This is required regardless of whether the complaint is written or oral. If the complaint is oral, the employer will have to create a document with the above information for the repository.
For each complaint, the employer must keep this record for at least 5 years from the later of (a) the date the employer received the complaint, or (b) the date of the personnel action about which the complaint pertains. For example, if the complaint was received but no action was taken on it, the 5-year period would begin on the date the complaint was received. If, however, the employer conducted an investigation, then disciplined the perpetrator, but took no further action, the 5-year period would begin on the date of the discipline.
For public entities that are subject to the Open Records Act, the law provides that a repository is not subject to public inspection or disclosure. However, records of complaints in a repository are likely to be subject to discovery in litigation. Employers should be careful to comply with the law and make sure all information in the repository is accurate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
