HOUSE BILL 22-1317
BY REPRESENTATIVE(S) Tipper, Bacon, Bernett, Duran, Exum,
Gonzales-Gutierrez, Jodeh, Lindsay, Lontine, Sirota, Weissman, Woodrow,
Garnett, Herod;
also SENATOR(S) Bridges, Hansen, Rodriguez.
C
ONCERNING RESTRICTIVE EMPLOYMENT AGREEMENTS .
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, amend 8-2-113 as
follows:
8-2-113. Unlawful to intimidate worker - agreement not to
compete - prohibition - exceptions - notice - definition. (1) Legislative
intent. T
HE GENERAL ASSEMBLY INTENDS TO PRESERVE EXISTING STATE AND
FEDERAL CASE LAW IN EFFECT BEFORE THE EFFECTIVE DATE OF THIS ACT
THAT
:
(a) D
EFINES WHAT COUNTS AS A COVENANT NOT TO COMPETE THAT
IS PROHIBITED BY THIS SECTION
; AND
(b) SPECIFIES THE EXTENT TO WHICH A COVENANT NOT TO COMPETE
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act. FOR THE PROTECTION OF TRADE SECRETS MUST BE TAILORED IN SCOPE IN
ORDER TO BE ENFORCEABLE UNDER THIS SECTION
.
(1)
(1.5) (a) It shall be IS unlawful to use force, threats, or other
means of intimidation to prevent any person from engaging in any lawful
occupation at any place he
THE PERSON sees fit.
(b) A
PERSON WHO VIOLATES THIS SUBSECTION (1.5) COMMITS A
CLASS
2 MISDEMEANOR, AS DEFINED IN SECTION 18-1.3-501.
(2) (a) E
XCEPT AS PROVIDED IN SUBSECTIONS (2)(b) AND (3) OF THIS
SECTION
, any covenant not to compete which
THAT restricts the right of any
person to receive compensation for performance of skilled or unskilled
labor for any employer shall be IS void. but this subsection (2) shall not
apply to:
(b) THIS SUBSECTION (2) DOES NOT APPLY TO A COVENANT NOT TO
COMPETE GOVERNING A PERSON WHO
, AT THE TIME THE COVENANT NOT TO
COMPETE IS ENTERED INTO AND AT THE TIME IT IS ENFORCED
, EARNS AN
AMOUNT OF ANNUALIZED CASH COMPENSATION EQUIVALENT TO OR GREATER
THAN THE THRESHOLD AMOUNT FOR HIGHLY COMPENSATED WORKERS
, IF
THE COVENANT NOT TO COMPETE IS FOR THE PROTECTION OF TRADE SECRETS
AND IS NO BROADER THAN IS REASONABLY NECESSARY TO PROTECT THE
EMPLOYER
'S LEGITIMATE INTEREST IN PROTECTING TRADE SECRETS .
(a) Any contract for the purchase and sale of a business or the assetsof a business;
(b) Any contract for the protection of trade secrets;
(c) AS USED IN THIS SUBSECTION (2):
(I) "A
NNUALIZED CASH COMPENSATION " MEANS:
(A) T
HE AMOUNT OF THE GROSS SALARY OR WAGE AMOUNT , THE FEE
AMOUNT
, OR THE OTHER COMPENSATION AMOUNT FOR THE FULL YEAR , IF
THE PERSON WAS EMPLOYED OR ENGAGED FOR A FULL YEAR
;
(B) T
HE COMPENSATION THAT THE PERSON WOULD HAVE EARNED ,
BASED ON THE WORKER'S GROSS SALARY OR WAGE AMOUNT , FEE, OR OTHER
PAGE 2-HOUSE BILL 22-1317 COMPENSATION IF THE WORKER WAS NOT EMPLOYED OR ENGAGED FOR A
FULL YEAR
.
(II) "T
HRESHOLD AMOUNT FOR HIGHLY COMPENSATED WORKERS "
MEANS THE GREATER OF THE THRESHOLD AMOUNT FOR HIGHLY
COMPENSATED WORKERS AS DETERMINED BY THE DIVISION OF LABOR
STANDARDS AND STATISTICS IN THE DEPARTMENT OF LABOR AND
EMPLOYMENT
:
(A) A
S OF THE EFFECTIVE DATE OF THIS SECTION, AS AMENDED; OR
(B) AT THE TIME THE COVENANT NOT TO COMPETE IS EXECUTED BY
THE PARTIES
.
(c) Any contractual provision providing for recovery of the expense
of educating and training an employee who has served an employer for a
period of less than two years;
(d) Executive and management personnel and officers and
employees who constitute professional staff to executive and management
personnel.
(III) IN DETERMINING WHETHER A WORKER 'S CASH COMPENSATION
EXCEEDS THE THRESHOLD AMOUNT
, WHERE THE WORKER HAS BEEN
EMPLOYED FOR LESS THAN A CALENDAR YEAR
, THE WORKER'S CASH
COMPENSATION EXCEEDS THE THRESHOLD AMOUNT IF THE WORKER WOULD
REASONABLY EXPECT TO EARN MORE THAN THE THRESHOLD AMOUNT
DURING A CALENDAR YEAR OF EMPLOYMENT
.
(d) T
HIS SUBSECTION (2) DOES NOT APPLY TO A COVENANT NOT TO
SOLICIT CUSTOMERS GOVERNING A PERSON WHO
, AT THE TIME THE
COVENANT IS ENTERED INTO AND AT THE TIME IT IS ENFORCED
, EARNS AN
AMOUNT OF ANNUALIZED CASH COMPENSATION EQUIVALENT TO OR GREATER
THAN SIXTY PERCENT OF THE THRESHOLD AMOUNT FOR HIGHLY
COMPENSATED WORKERS IF THE NONSOLICITATION COVENANT IS NO
BROADER THAN REASONABLY NECESSARY TO PROTECT THE EMPLOYER
'S
LEGITIMATE INTEREST IN PROTECTING TRADE SECRETS
.
(3) T
HE FOLLOWING COVENANTS ARE NOT PROHIBITED BY
SUBSECTION
(2) OF THIS SECTION:
PAGE 3-HOUSE BILL 22-1317 (a) A PROVISION PROVIDING FOR AN EMPLOYER 'S RECOVERY OF THE
EXPENSE OF EDUCATING AND TRAINING A WORKER WHERE THE TRAINING IS
DISTINCT FROM NORMAL
, ON-THE-JOB TRAINING, THE EMPLOYER'S RECOVERY
IS LIMITED TO THE REASONABLE COSTS OF THE TRAINING AND DECREASES
OVER THE COURSE OF THE TWO YEARS SUBSEQUENT TO THE TRAINING
PROPORTIONATELY BASED ON THE NUMBER OF MONTHS THAT HAVE PASSED
SINCE THE COMPLETION OF THE TRAINING
, AND THE EMPLOYER RECOVERING
FOR THE COSTS OF THE TRAINING WOULD NOT VIOLATE THE
"FAIR LABOR
STANDARDS ACT OF 1938", 29 U.S.C. SEC. 201 ET SEQ., OR ARTICLE 4 OF
TITLE
8;
(b) A
REASONABLE CONFIDENTIALITY PROVISION RELEVANT TO THE
EMPLOYER
'S BUSINESS THAT DOES NOT PROHIBIT DISCLOSURE OF
INFORMATION THAT ARISES FROM THE WORKER
'S GENERAL TRAINING,
KNOWLEDGE, SKILL, OR EXPERIENCE, WHETHER GAINED ON THE JOB OR
OTHERWISE
, INFORMATION THAT IS READILY ASCERTAINABLE TO THE PUBLIC ,
OR INFORMATION THAT A WORKER OTHERWISE HAS A RIGHT TO DISCLOSE AS
LEGALLY PROTECTED CONDUCT
;
(c) A
COVENANT FOR THE PURCHASE AND SALE OF A BUSINESS OR
THE ASSETS OF A BUSINESS
; OR
(d) A PROVISION REQUIRING THE REPAYMENT OF A SCHOLARSHIP
PROVIDED TO AN INDIVIDUAL WORKING IN AN APPRENTICESHIP IF THE
INDIVIDUAL FAILS TO COMPLY WITH THE CONDITIONS OF THE SCHOLARSHIP
AGREEMENT
.
(4) (a) A
NY COVENANT NOT TO COMPETE THAT IS OTHERWISE
PERMISSIBLE UNDER SUBSECTION
(2) OR (3) OF THIS SECTION IS VOID UNLESS
NOTICE OF THE COVENANT NOT TO COMPETE AND THE TERMS OF THE
COVENANT NOT TO COMPETE ARE PROVIDED TO
:
(I) A
PROSPECTIVE WORKER BEFORE THE WORKER ACCEPTS THE
EMPLOYER
'S OFFER OF EMPLOYMENT; OR
(II) A CURRENT WORKER AT LEAST FOURTEEN DAYS BEFORE THE
EARLIER OF
:
(A) T
HE EFFECTIVE DATE OF THE COVENANT ; OR
PAGE 4-HOUSE BILL 22-1317 (B) THE EFFECTIVE DATE OF ANY ADDITIONAL COMPENSATION OR
CHANGE IN THE TERMS OR CONDITIONS OF EMPLOYMENT THAT PROVIDES
CONSIDERATION FOR THE COVENANT
.
(b) A
N EMPLOYER SHALL PROVIDE THE NOTICE REQUIRED IN
SUBSECTION
(4)(a) OF THIS SECTION IN A SEPARATE DOCUMENT FROM ANY
OTHER COVENANTS BETWEEN THE WORKER AND EMPLOYER AND IN CLEAR
AND CONSPICUOUS TERMS IN THE LANGUAGE IN WHICH THE WORKER AND
EMPLOYER COMMUNICATE ABOUT THE WORKER
'S PERFORMANCE. THE
NOTICE MUST BE SIGNED BY THE WORKER
.
(c) (I) A
WORKER MAY REQUEST AN ADDITIONAL COPY OF THE
COVENANT NOT TO COMPETE REQUIRED BY THIS SUBSECTION
(4) ONCE EACH
CALENDAR YEAR
.
(II) A
N EMPLOYER IS NOT REQUIRED UNDER THIS SUBSECTION (4) TO
PROVIDE THE WORKER WITH AN ADDITIONAL COPY OF THE COVENANT NOT
TO COMPETE MORE THAN ONCE DURING A CALENDAR YEAR
.
(d) A
N EMPLOYER SATISFIES THE NOTICE REQUIREMENT OF THIS
SUBSECTION
(4) WHEN THE NOTICE:
(I) I
S PROVIDED WITH A COPY OF THE AGREEMENT CONTAINING THE
COVENANT NOT TO COMPETE
;
(II) I
DENTIFIES THE AGREEMENT BY NAME AND STATES THAT THE
AGREEMENT CONTAINS A COVENANT NOT TO COMP ETE THAT COULD
RESTRICT THE WORKERS
' OPTIONS FOR SUBSEQUENT EMPLOYMENT
FOLLOWING THEIR SEPARATION FROM THE EMPLOYER
; AND
(III) DIRECTS THE WORKER TO THE SPECIFIC SECTIONS OR
PARAGRAPHS OF THE AGREEMENT THAT CONTAIN THE COVENANT NOT TO
COMPETE
.
(3) (a)
(5) (a) Any covenant not to compete provision of an
employment, partnership, or corporate agreement between physicians that
restricts the right of a physician to practice medicine, as defined in section
12-240-107, upon termination of the agreement, is void; except that all
other provisions of the agreement enforceable at law, including provisions
that require the payment of damages in an amount that is reasonably related
PAGE 5-HOUSE BILL 22-1317 to the injury suffered by reason of termination of the agreement, are
enforceable. Provisions of a covenant not to compete that require the
payment of damages upon termination of the agreement may include
damages related to competition.
(b) Notwithstanding subsection (3)(a)
SUBSECTION (5)(a) of this
section, after termination of an agreement described in subsection (3)(a)
SUBSECTION (5)(a) of this section, a physician may disclose his or her
continuing practice of medicine and new professional contact information
to any patient with a rare disorder, as defined in accordance with criteria
developed by the National Organization for Rare Disorders, Inc., or a
successor organization, to whom the physician was providing consultation
or treatment before termination of the agreement. Neither the physician nor
the physician's employer, if any, is liable to any party to the prior agreement
for damages alleged to have resulted from the disclosure or from the
physician's treatment of the patient after termination of the prior agreement.
(4) A person who violates this section commits a class 2
misdemeanor.
(6) A COVENANT NOT TO COMPETE THAT APPLIES TO A WORKER WHO ,
AT THE TIME OF TERMINATION OF EMPLOYMENT PRIMARILY RESIDED OR
WORKED IN
COLORADO, MAY NOT REQUIRE THE WORKER TO ADJUDICATE
THE ENFORCEABILITY OF THE COVENANT OUTSIDE OF
COLORADO.
N
OTWITHSTANDING ANY CONTRACTUAL PROVISION TO THE CONTRARY ,
C
OLORADO LAW GOVERNS THE ENFORCEABILITY OF A COVENANT NOT TO
COMPETE FOR A WORKER WHO AT THE TIME OF TERMINATION OF
EMPLOYMENT PRIMARILY RESIDED AND WORKED IN
COLORADO.
(7) A
WORKER WHO IS A PARTY TO A COVENANT NOT TO COMPETE ,
OR A SUBSEQUENT EMPLOYER THAT HAS HIRED OR IS CONSIDERING HIRING
THE WORKER
, MAY SEEK A DECLARATORY JUDGMENT FROM A COURT OF
COMPETENT JURISDICTION OR AN ARBITR ATOR THAT THE COVENANT NOT TO
COMPETE IS UNENFORCEABLE
.
(8) (a) A
N EMPLOYER SHALL NOT ENTER INTO , PRESENT TO A
WORKER OR PROSPECTIVE WORKER AS A TERM OF EMPLOYMENT
, OR
ATTEMPT TO ENFORCE ANY COVENANT NOT TO COMPETE THAT IS VOID
UNDER THIS SECTION
.
PAGE 6-HOUSE BILL 22-1317 (b) AN EMPLOYER THAT VIOLATES SUBSECTION (8)(a) OF THIS
SECTION IS LIABLE FOR ACTUAL DAMAGES AND A PENALTY OF FIVE
THOUSAND DOLLARS PER WORKER OR PROSPECTIVE WORKER HARMED BY
THE CONDUCT
. THE ATTORNEY GENERAL AND ANY WORKER OR PROSPECTIVE
WORKER HARMED BY AN EMPLOYER
'S CONDUCT MAY BRING AN ACTION FOR
INJUNCTIVE RELIEF AND TO RECOVER PENALTIES
. IN ADDITION TO
INJUNCTIVE RELIEF AND THE PENALTY ALLOWED IN THIS SUBSECTION
(8)(b),
A WORKER OR PROSPECTIVE WORKER MAY RECOVER ACTUAL DAMAGES ,
REASONABLE COSTS, AND ATTORNEY FEES IN ANY PRIVATE ACTION BROUGHT
UNDER THIS SECTION
.
(c) I
N ANY ACTION BROUGHT UNDER THIS SUBSECTION (8), IF THE
EMPLOYER SHOWS THAT THE ACT OR OMISSION GIVING RISE TO SUCH ACTION
WAS IN GOOD FAITH AND THAT THE EMPLOYER HAD REASONABLE GROUNDS
FOR BELIEVING THAT THE EMPLOYER
'S ACT OR OMISSION WAS NOT A
VIOLATION OF THIS SECTION
, THE COURT MAY, IN ITS SOUND DISCRETION,
AWARD THE WORKER OR WORKERS NO PENALTY OR AWARD A PENALTY OF
ANY AMOUNT NOT TO EXCEED THE AMOUNT SPECIFIED IN SUBSECTION
(8)(b)
OF THIS SECTION.
SECTION 2. Act subject to petition - effective date -
applicability. (1) This act takes effect at 12:01 a.m. on the day following
the expiration of the ninety-day period after final adjournment of the
general assembly; except that, if a referendum petition is filed pursuant to
section 1 (3) of article V of the state constitution against this act or an item,
section, or part of this act within such period, then the act, item, section, or
part will not take effect unless approved by the people at the general
election to be held in November 2022 and, in such case, will take effect on
the date of the official declaration of the vote thereon by the governor.
PAGE 7-HOUSE BILL 22-1317 (2) This act applies to covenants not to compete entered into or
renewed on or after the applicable effective date of this act.
____________________________ ____________________________
Alec Garnett Steve Fenberg
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Robin Jones Cindi L. Markwell
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 8-HOUSE BILL 22-1317