First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
REVISED
This Version Includes All Amendments Adopted
on Second Reading in the Second House
LLS NO. 23-0369.01 Jason Gelender x4330
SENATE BILL 23-053
Senate Committees House Committees
State, Veterans, & Military Affairs State, Civic, Military, & Veterans Affairs
A BILL FOR AN ACT
C
ONCERNING RESTRICTIONS ON NO NDISCLOSURE AGREEMENTS THAT101
AFFECT GOVERNMENT EMPLOYEES .102
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
The bill prohibits the state, counties, cities and counties,
municipalities, schools districts, and any of their departments, institutions,
or agencies from making it a condition of employment that an employee
or a prospective employee executes a contract or other form of agreement
that prohibits, prevents, or otherwise restricts the employee or prospective
employee from disclosing factual circumstances concerning the
HOUSE
Amended 2nd Reading
April 29, 2023
SENATE
3rd Reading Unamended
March 24, 2023
SENATE
Amended 2nd Reading
March 23, 2023
SENATE SPONSORSHIP
Kirkmeyer and Rodriguez, Baisley, Bridges, Buckner, Coleman, Gardner, Ginal,
Gonzales, Hansen, Kolker, Liston, Lundeen, Marchman, Mullica, Pelton B., Pelton R., Priola,
Roberts, Simpson, Smallwood, Van Winkle, Will, Winter F.
HOUSE SPONSORSHIP
Woodrow and Evans,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing law.
Dashes through the words or numbers indicate deletions from existing law. individual's employment with the government (nondisclosure agreement)
unless the nondisclosure agreement is necessary to prevent disclosure of:
! Factual circumstances relating to the employment that
reasonably implicate privacy interests held by the employee
who is a party to the agreement; or
! Matters required to be kept confidential by federal law or
rules, the state constitution, or state statute, or matters
bearing on the specialized details of security arrangements
or investigations.
The bill prohibits nondisclosure agreements that prohibit
employees of the state, counties, city and counties, municipalities, school
districts, or any of their departments, institutions, or agencies from
disclosing factual circumstances concerning their employment. To the
extent that an employer includes any such provision in any employment
contract or agreement, the provision is deemed to be against public policy
and unenforceable against a current or former employee who is a party to
the contract or agreement unless the provision is intended to prevent
disclosure of factual circumstances implicating the employee's privacy
interests, matters required to be kept confidential under federal law or
rules, the state constitution, or state statute, or matters bearing on the
specialized details of security arrangements or investigations.
The bill prohibits the state, counties, city and counties,
municipalities, or any of their departments, institutions, or agencies from
taking any retaliatory action against an individual on the grounds that the
individual does not enter into a contract or agreement deemed to be
against public policy and unenforceable under the bill. Any person who
enforces or attempts to enforce a provision deemed to be against public
policy and unenforceable under the bill is liable for the employee's
reasonable attorney fees and costs in defending against the action.
Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. Legislative declaration. (1) The general assembly2
finds and declares that:3
(a) (I) Government employees, including employees of the state,4
counties, cities and counties, municipalities, school districts, and any5
department, institution, or agency of any such government, are public6
servants who are hired to undertake their job duties and responsibilities7
to serve the public;8
053-2- (II) Government employees are paid with public money, and they1
and their employers are accountable to the public for the manner in which2
they carry out their public duties and responsibilities;3
(III) The public has a fundamental interest in transparency4
concerning the conduct of government, including state government,5
county government, city and county government, municipal government,6
and school district government. From the free speech provisions of its7
founding constitution to the enactment of laws requiring that meetings be8
conducted in an open manner and that public records be broadly9
disclosed, the state of Colorado has been at the forefront of efforts to10
ensure that the formation of public policy is public business that may not11
be conducted in secret. These constitutional and statutory requirements12
are intended to provide the public with as much knowledge as possible13
about how public business is being conducted while it is being conducted;14
(IV) Nondisclosure agreements imposed on applicants for15
government employment, government employees, and past government16
employees that effectively prohibit such applicants and employees from17
disclosing details about their prospective, current, or past government18
service obstruct these fundamental principles of government transparency19
and public accountability. The details of public business should not be20
hidden from public view by means of nondisclosure agreements imposed21
on such applicants or employees as a condition of their hiring or22
employment or in connection with their leaving government service or23
their past government service; and24
(V) In the absence of legitimate concerns about the protection of25
the privacy interests of applicants for government employment,26
government employees, and past government employees, or to protect27
053
-3- against disclosure matters that are truly confidential and sensitive to the1
public interest, neither the state nor any of its departments, institutions,2
or agencies should be permitted to silence such applicants and employees3
from being able to speak openly about their prospective, current, or past4
government service through the imposition of nondisclosure agreements.5
Such applicants and employees should ordinarily be permitted to speak6
openly about their prospective, current, or past government service.7
(b) By enacting this act, the general assembly intends to restrict8
the ability of a government, including the state, a county, a city and9
county, a municipality, or a school district, or any department, institution,10
or agency of a government, from requiring applicants for employment or11
employees to enter into nondisclosure agreements as a condition of their12
being hired. Nor may such a government, department, institution, or13
agency insist upon the enforcement of a nondisclosure agreement when14
or after an employee ends their employment with the government,15
department, institution, or agency. The general assembly intends that,16
absent the presence of very select circumstances, enforcement of such17
nondisclosure agreements be prohibited and that such nondisclosure18
agreements be deemed void as against public policy and of no legal force19
and effect. The general assembly further intends that this act be liberally20
construed to further the fundamental principle that state government be21
conducted in public to the greatest extent possible; and22
(c) Transparency concerning the conduct of government is a23
matter of statewide concern and, therefore, the provisions of this act apply24
to all counties, cities and counties, municipalities, and school districts25
including home rule counties, cities and counties, and municipalities.26
SECTION 2. In Colorado Revised Statutes, add 22-1-135.5 as27
053
-4- follows:1
22-1-135.5. Nondisclosure agreements - protection of school2
district, board of cooperative services, and public school employees3
- definition. (1) (a) NO SCHOOL DISTRICT, BOARD OF COOPERATIVE4
SERVICES, PUBLIC SCHOOL, OR ANY DEPARTMENT , INSTITUTION, OR5
AGENCY OF A SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES , OR6
PUBLIC SCHOOL SHALL MAKE IT A CONDITION OF EMPLOYMENT THAT AN7
EMPLOYEE EXECUTES A CONTRACT OR OTHER FORM OF AGREEMENT8
THAT PROHIBITS, PREVENTS, OR OTHERWISE RESTRICTS THE EMPLOYEE 9
FROM DISCLOSING FACTUAL CIRCUMSTANCES CONCERNING THE10
EMPLOYEE'S EMPLOYMENT WITH THE SCHOOL DISTRICT , BOARD OF11
COOPERATIVE SERVICES, OR PUBLIC SCHOOL OR ANY OF ITS DEPARTMENTS,12
INSTITUTIONS, OR AGENCIES UNLESS THE PROHIBITION OR RESTRICTION IN13
THE CONTRACT OR AGREEMENT IS NECESSARY TO PREVENT DISCLOSURE14
OF:15
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
16
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES17
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE18
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO19
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE20
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR21
SUCH FACTS AND CIRCUMSTANCES ;22
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
23
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT24
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR25
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE26
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS27
053
-5- ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK1
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING2
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO3
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;4
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
5
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY6
A CURRENT OR PROSPECTIVE CONTRACTOR, VENDOR, GRANTEE OR AS PART7
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE8
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; OR9
(IV) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF10
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING SECURITY11
ARRANGEMENTS FOR OR INVESTIGATIONS INTO ELECTED OFFICIALS OR12
OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE, OR CYBERSECURITY;13
(V) INFORMATION DERIVED FROM COMMUNICATIONS OF THE14
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR15
ADMINISTRATIVE ACTION;16
(VI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION17
AUTHORIZED BY SECTION 24-6-402; OR18
(VII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE19
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER .20
(VIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE21
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF22
TITLE 24; OR23
(IX) TRADE SECRETS OWNED BY THE EMPLOYER .24
(b) ANY PROVISION IN ANY CONTRACT OR AGREEMENT THAT25
VIOLATES SUBSECTION (1)(a) OF THIS SECTION OF THIS SECTION IS DEEMED26
TO BE AGAINST PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN27
053
-6- EMPLOYEE UNLESS THE PROVISION IS INTENDED TO PREVENT DISCLOSURE1
OF:2
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
3
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES4
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE5
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO6
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE7
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR8
SUCH FACTS AND CIRCUMSTANCES ;9
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
10
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT11
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR12
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE13
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS14
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK15
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING16
LEGAL OR ADMINISTRATIVE ACTION , OR AS MATERIALS RELATED TO17
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;18
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
19
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY20
A CURRENT OR PROSPECTIVE CONTRACTOR , VENDOR, GRANTEE OR AS PART21
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE22
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; OR23
(IV) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF24
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED25
OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE, OR26
CYBERSECURITY;27
053
-7- (V) INFORMATION DERIVED FROM COMMUNICATIONS OF THE1
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR2
ADMINISTRATIVE ACTION;3
(VI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION4
AUTHORIZED BY SECTION 24-6-402; OR5
(VII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE6
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER .7
(VIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE8
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF9
TITLE 24; OR10
(IX) TRADE SECRETS OWNED BY THE EMPLOYER .11
(2) (a) N
O SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES,12
PUBLIC SCHOOL, OR DEPARTMENT, INSTITUTION, OR AGENCY OF A SCHOOL13
DISTRICT, A BOARD OF COOPERATIVE SERVICES , OR A PUBLIC SCHOOL14
SHALL TAKE ANY MATERIALLY ADVERSE EMPLOYMENT -RELATED
ACTION,15
INCLUDING, WITHOUT LIMITATION , WITHDRAWAL OF AN OFFER OF 16
EMPLOYMENT, DISCHARGE, SUSPENSION, DEMOTION, DISCRIMINATION IN17
THE TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT , OR OTHER18
ADVERSE ACTION AGAINST AN EMPLOYEE ON THE GROUNDS THAT THE19
EMPLOYEE DOES NOT ENTER INTO A CONTRACT OR AGREEMENT DEEMED20
TO BE AGAINST PUBLIC POLICY AND UNENFORCEABLE UNDER SUBSECTION21
(1)(b)
OF THIS SECTION. THE TAKING OF SUCH A MATERIALLY ADVERSE
22
EMPLOYMENT-RELATED ACTION AFTER AN EMPLOYEE HAS REFUSED TO23
ENTER INTO SUCH A CONTRACT OR AGREEMENT IS PRIMA FACIE EVIDENCE24
OF RETALIATION.25
(b) A
NY
EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A26
PROVISION DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY AND27
053
-8- UNENFORCEABLE PURSUANT TO SUBSECTION (1) OF THIS SECTION IS1
LIABLE FOR THE EMPLOYEE'S REASONABLE ATTORNEY FEES AND COSTS IN2
DEFENDING AGAINST THE ACTION .3
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
4
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE5
EMPLOYEE IS PRIMARILY EMPLOYED .6
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS
7
A SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES , OR PUBLIC8
SCHOOL OR A DEPARTMENT , INSTITUTION, OR AGENCY OF A SCHOOL9
DISTRICT, A BOARD OF COOPERATIVE SERVICES, OR A PUBLIC SCHOOL AND10
AN EMPLOYEE OF THE EMPLOYER MUST BE SIGNED BY BOTH THE EMPLOYER11
AND THE EMPLOYEE.12
(4) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE13
RELEASE OF INFORMATION REQUIRED TO BE RELEASED UNDER THE14
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.15
(5) NOTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM16
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT17
WITH A THIRD PARTY IN THE EMPLOYEE 'S OFFICIAL CAPACITY AND ON18
BEHALF OF THE EMPLOYER.19
(6) AS USED IN THIS SECTION:20
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN
21
EMPLOYMENT-RELATED POLICY , PRACTICE, REQUIREMENT , OR22
RESTRICTION DICTATED BY AN EMPLOYER THAT AN INDIVIDUAL MUST23
AGREE TO ABIDE BY IN ORDER TO BE HIRED BY OR RETAIN EMPLOYMENT24
WITH THE EMPLOYER.25
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
26
CURRENT OR PAST EMPLOYEE OF A SCHOOL DISTRICT , BOARD OF27
053
-9- COOPERATIVE SERVICES, OR PUBLIC SCHOOL OR A DEPARTMENT ,1
INSTITUTION, OR AGENCY OF A SCHOOL DISTRICT, BOARD OF COOPERATIVE2
SERVICES, OR PUBLIC SCHOOL.3
SECTION 3. In Colorado Revised Statutes, add 24-50.5-105.54
as follows:5
24-50.5-105.5. Nondisclosure agreements - protection of state6
employees - definitions. (1) (a) NEITHER THE STATE NOR ANY7
DEPARTMENT, INSTITUTION, OR AGENCY OF THE STATE SHALL MAKE IT A8
CONDITION OF EMPLOYMENT THAT AN EMPLOYEE EXECUTES A9
CONTRACT OR OTHER FORM OF AGREEMENT THAT PROHIBITS , PREVENTS,10
OR OTHERWISE RESTRICTS THE EMPLOYEE FROM DISCLOSING FACTUAL11
CIRCUMSTANCES CONCERNING THE EMPLOYEE 'S EMPLOYMENT WITH THE12
STATE OR ANY OF ITS DEPARTMENTS, INSTITUTIONS, OR AGENCIES UNLESS13
THE PROHIBITION OR RESTRICTION IN THE CONTRACT OR AGREEMENT IS14
NECESSARY TO PREVENT DISCLOSURE OF :15
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
16
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES17
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE18
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO19
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE20
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR21
SUCH FACTS AND CIRCUMSTANCES ;22
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
23
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT24
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR25
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE26
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS27
053
-10- ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK1
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING2
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO3
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;4
(III) N
ONPUBLIC AND CONFIDENTIAL LABOR RELATIONS POSITIONS
5
AND STRATEGIES;6
(IV) A
TTORNEY WORK PRODUCT ;
7
(V) V
ENDOR LISTS AND VENDOR PREFERENCES ;
8
(VI) S
TATE BUSINESS-RELATED INFORMATION RECEIVED FROM A
9
THIRD PARTY THAT THE THIRD PARTY HAS DESIGNATED CONFIDENTIAL ;10
(VII) INFORMATION AND MATTERS RELATED TO STATE ACTIVE11
DUTY ORDERS OF NATIONAL GUARD SOLDIERS AND AIRMEN AND12
PERSONNEL DISPUTES SUBJECT TO THE JURISDICTION OF THE UNITED13
STATES DEPARTMENT OF DEFENSE ;14
(VIII) TRADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE15
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY16
A CURRENT OR PROSPECTIVE CONTRACTOR, VENDOR, GRANTEE OR AS PART17
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE18
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; OR19
(IX) INFORMATION BEARING ON THE SPECIALIZED DETAILS OF20
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED21
OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE, OR22
CYBERSECURITY;23
(X) INFORMATION DERIVED FROM COMMUNICATIONS OF THE24
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR25
ADMINISTRATIVE ACTION;26
(XI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION27
053
-11- AUTHORIZED BY SECTION 24-6-402; OR1
(XII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE2
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER .3
(XIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE4
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF5
TITLE 24; OR6
(XIV) TRADE SECRETS OWNED BY THE EMPLOYER .7
(b) ANY PROVISION IN ANY CONTRACT OR AGREEMENT THAT8
VIOLATES SUBSECTION (1)(a) OF THIS SECTION OF THIS SECTION IS DEEMED9
TO BE AGAINST PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN10
EMPLOYEE UNLESS THE PROVISION IS INTENDED TO PREVENT DISCLOSURE11
OF:12
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
13
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES14
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE15
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO16
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE17
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR18
SUCH FACTS AND CIRCUMSTANCES ;19
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
20
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT21
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR22
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE23
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS24
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK25
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING26
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO27
053
-12- PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;1
(III) N
ONPUBLIC AND CONFIDENTIAL LABOR RELATIONS POSITIONS
2
AND STRATEGIES;3
(IV) A
TTORNEY WORK PRODUCT ;
4
(V) V
ENDOR LISTS AND VENDOR PREFERENCES ;
5
(VI) S
TATE BUSINESS-RELATED INFORMATION RECEIVED FROM A
6
THIRD PARTY THAT THE THIRD PARTY HAS DESIGNATED CONFIDENTIAL ;7
(VII) INFORMATION AND MATTERS RELATED TO STATE ACTIVE8
DUTY ORDERS OF NATIONAL GUARD SOLDIERS AND AIRMEN AND9
PERSONNEL DISPUTES SUBJECT TO THE JURISDICTION OF THE UNITED10
STATES DEPARTMENT OF DEFENSE ;11
(VIII) TRADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE12
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY13
A CURRENT OR PROSPECTIVE CONTRACTOR , VENDOR, GRANTEE OR AS PART14
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE15
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; OR16
(IX) INFORMATION BEARING ON THE SPECIALIZED DETAILS OF17
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED18
OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE, OR19
CYBERSECURITY;20
(X) INFORMATION DERIVED FROM COMMUNICATIONS OF THE21
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR22
ADMINISTRATIVE ACTION;23
(XI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION24
AUTHORIZED BY SECTION 24-6-402; OR25
(XII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE26
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER .27
053
-13- (XIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE1
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF2
TITLE 24; OR3
(XIV) TRADE SECRETS OWNED BY THE EMPLOYER .4
(2) (a) N
EITHER THE STATE NOR ANY OF ITS DEPARTMENTS ,5
INSTITUTIONS, OR AGENCIES SHALL TAKE ANY MATERIALLY ADVERSE
6
EMPLOYMENT-RELATED ACTION, INCLUDING, WITHOUT LIMITATION ,7
WITHDRAWAL OF AN OFFER OF EMPLOYMENT , DISCHARGE, SUSPENSION,8
DEMOTION, DISCRIMINATION IN THE TERMS, CONDITIONS, OR PRIVILEGES9
OF EMPLOYMENT, OR OTHER ADVERSE ACTION AGAINST AN EMPLOYEE ON10
THE GROUNDS THAT THE EMPLOYEE DOES NOT ENTER INTO A CONTRACT11
OR AGREEMENT DEEMED TO BE AGAINST PUBLIC POLICY AND12
UNENFORCEABLE UNDER SUBSECTION (1)(b) OF THIS SECTION. THE TAKING13
OF SUCH A MATERIALLY ADVERSE EMPLOYMENT -RELATED ACTION AFTER14
AN EMPLOYEE HAS REFUSED TO ENTER INTO SUCH A CONTRACT OR15
AGREEMENT IS PRIMA FACIE EVIDENCE OF RETALIATION .16
(b) A
NY
EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A17
PROVISION DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY AND18
UNENFORCEABLE PURSUANT TO SUBSECTION (1) OF THIS SECTION IS19
LIABLE FOR THE EMPLOYEE'S REASONABLE ATTORNEY FEES AND COSTS IN20
DEFENDING AGAINST THE ACTION .21
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
22
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE23
EMPLOYEE IS PRIMARILY EMPLOYED .24
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS
25
THE STATE OR A DEPARTMENT , INSTITUTION, OR AGENCY OF THE STATE26
AND AN EMPLOYEE OF THE STATE OR THE DEPARTMENT , INSTITUTION, OR27
053
-14- AGENCY OF THE STATE MUST BE SIGNED BY BOTH THE EMPLOYER AND THE1
EMPLOYEE.2
(4) A NONDISCLOSURE AGREEMENT MUST STATE THAT STATE3
EMPLOYEES ARE PROTECTED FROM RETALIATION FOR DISCLOSURE OF4
INFORMATION ABOUT STATE AGENCIES THAT ARE WORKING OUTSIDE THE5
PUBLIC INTEREST IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 50.56
OF TITLE 24.7
(5) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE8
RELEASE OF INFORMATION REQUIRED TO BE RELEASED UNDER THE9
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.10
(6) NOTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM11
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT12
WITH A THIRD PARTY IN THE EMPLOYEE'S OFFICIAL CAPACITY AND ON13
BEHALF OF THE EMPLOYER.14
(7) AS USED IN THIS SECTION:15
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN EMPLOYMENT -
16
RELATED POLICY, PRACTICE, REQUIREMENT, OR RESTRICTION DICTATED BY17
AN EMPLOYER THAT AN INDIVIDUAL MUST AGREE TO ABIDE BY IN ORDER18
TO BE HIRED BY OR RETAIN EMPLOYMENT WITH THE EMPLOYER . 19
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
20
CURRENT OR PAST EMPLOYEE OF THE STATE OR A DEPARTMENT ,21
INSTITUTION, OR AGENCY OF THE STATE.22
(c) "T
HE STATE" INCLUDES WITHOUT
LIMITATION EACH OF THE23
STATE OFFICERS LISTED IN SECTION 1 OF ARTICLE IV OF THE STATE24
CONSTITUTION AS WELL AS THE EXECUTIVE , LEGISLATIVE, AND JUDICIAL25
DEPARTMENTS OF THE GOVERNMENT OF THE STATE .26
SECTION 4. In Colorado Revised Statutes, add part 16 to article27
053
-15- 1 of title 29 as follows:1
PART 162
LOCAL GOVERNMENT NONDISCLOSURE AGREEMENTS3
29-1-1601. Nondisclosure agreements - protection of local4
government employees - definitions. (1) (a) NEITHER A LOCAL5
GOVERNMENT NOR A DEPARTMENT , INSTITUTION, OR AGENCY OF A LOCAL6
GOVERNMENT SHALL MAKE IT A CONDITION OF EMPLOYMENT THAT AN7
EMPLOYEE EXECUTES A CONTRACT OR OTHER FORM OF AGREEMENT8
THAT PROHIBITS, PREVENTS, OR OTHERWISE RESTRICTS THE EMPLOYEE 9
FROM DISCLOSING FACTUAL CIRCUMSTANCES CONCERNING THE10
EMPLOYEE'S EMPLOYMENT WITH THE LOCAL GOVERNMENT OR ANY OF ITS11
DEPARTMENTS, INSTITUTIONS, OR AGENCIES UNLESS THE PROHIBITION OR12
RESTRICTION IN THE CONTRACT OR AGREEMENT IS NECESSARY TO PREVENT13
DISCLOSURE OF:14
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
15
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES16
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE17
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO18
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE19
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR20
SUCH FACTS AND CIRCUMSTANCES ;21
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
22
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT23
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR24
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE25
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS26
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK27
053
-16- PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING1
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO2
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;3
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
4
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY5
A CURRENT OR PROSPECTIVE CONTRACTOR, VENDOR, GRANTEE OR AS PART6
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE7
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; OR8
(IV) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
9
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY10
AN EMPLOYER'S CURRENT OR PROSPECTIVE CUSTOMER , CONTRACTOR,11
LESSEE, LESSOR, BUSINESS PARTNER, OR AFFILIATE;12
(V) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
13
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY14
A PURCHASER OR SELLER OF PROPERTY THAT IS ENGAGED IN15
NEGOTIATIONS OR UNDER CONTRACT WITH THE EMPLOYER ; OR16
(VI) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF17
SECURITY ARRANGEMENTS OR CRIMINAL INVESTIGATIONS INCLUDING FOR18
ELECTED OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE,19
OR CYBERSECURITY;20
(VII) INFORMATION DERIVED FROM COMMUNICATIONS OF THE21
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR22
ADMINISTRATIVE ACTION;23
(VIII) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION24
AUTHORIZED BY SECTION 24-6-402; OR25
(IX) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE26
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER .27
053
-17- (X) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE1
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF2
TITLE 24; OR3
(XI) TRADE SECRETS OWNED BY THE EMPLOYER .4
(b) ANY PROVISION IN ANY CONTRACT OR AGREEMENT THAT5
VIOLATES SUBSECTION (1)(a) OF THIS SECTION OF THIS SECTION IS DEEMED6
TO BE AGAINST PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN7
EMPLOYEE UNLESS THE PROVISION IS INTENDED TO PREVENT DISCLOSURE8
OF:9
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
10
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES11
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE12
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO13
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE14
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR15
SUCH FACTS AND CIRCUMSTANCES ;16
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
17
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT18
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR19
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE20
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS21
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK22
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING23
LEGAL OR ADMINISTRATIVE ACTION , OR AS MATERIALS RELATED TO24
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;25
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
26
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY27
053
-18- A CURRENT OR PROSPECTIVE CONTRACTOR, VENDOR, GRANTEE OR AS PART1
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE2
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; OR3
(IV) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
4
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY5
AN EMPLOYER'S CURRENT OR PROSPECTIVE CUSTOMER , CONTRACTOR,6
LESSEE, LESSOR, BUSINESS PARTNER, OR AFFILIATE;7
(V) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
8
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY9
A PURCHASER OR SELLER OF PROPERTY THAT IS ENGAGED IN10
NEGOTIATIONS OR UNDER CONTRACT WITH THE EMPLOYER ; OR11
(VI) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF12
SECURITY ARRANGEMENTS OR CRIMINAL INVESTIGATIONS INCLUDING FOR13
ELECTED OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE,14
OR CYBERSECURITY;15
(VII) INFORMATION DERIVED FROM COMMUNICATIONS OF THE16
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR17
ADMINISTRATIVE ACTION;18
(VIII) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION19
AUTHORIZED BY SECTION 24-6-402; OR20
(IX) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE21
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER .22
(X) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE23
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF24
TITLE 24; OR25
(XI) TRADE SECRETS OWNED BY THE EMPLOYER .26
(2) (a) N
EITHER A LOCAL GOVERNMENT NOR A DEPARTMENT , AN27
053
-19- INSTITUTION, OR AN AGENCY OF A LOCAL GOVERNMENT SHALL TAKE ANY1
MATERIALLY ADVERSE EMPLOYMENT -RELATED ACTION, INCLUDING,2
WITHOUT LIMITATION, WITHDRAWAL OF AN OFFER OF EMPLOYMENT ,3
DISCHARGE, SUSPENSION, DEMOTION, DISCRIMINATION IN THE TERMS ,4
CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, OR OTHER ADVERSE ACTION5
AGAINST AN EMPLOYEE ON THE GROUNDS THAT THE EMPLOYEE DOES NOT6
ENTER INTO A CONTRACT OR AGREEMENT DEEMED TO BE AGAINST PUBLIC7
POLICY AND UNENFORCEABLE UNDER SUBSECTION (1)(b) OF THIS SECTION.8
T
HE TAKING OF SUCH A MATERIALLY ADVERSE EMPLOYMENT -RELATED
9
ACTION AFTER AN EMPLOYEE HAS REFUSED TO ENTER INTO SUCH A10
CONTRACT OR AGREEMENT IS PRIMA FACIE EVIDENCE OF RETALIATION .11
(b) A
NY
EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A12
PROVISION DEEMED BY A COURT AGAINST PUBLIC POLICY AND13
UNENFORCEABLE PURSUANT TO SUBSECTION (1) OF THIS SECTION IS14
LIABLE FOR THE EMPLOYEE'S REASONABLE ATTORNEY FEES AND COSTS IN15
DEFENDING AGAINST THE ACTION .16
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
17
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE18
EMPLOYEE IS PRIMARILY EMPLOYED .19
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS
20
A LOCAL GOVERNMENT OR A DEPARTMENT , INSTITUTION, OR AGENCY OF21
A LOCAL GOVERNMENT AND AN EMPLOYEE OF THE LOCAL GOVERNMENT22
OR THE DEPARTMENT , INSTITUTION, OR AGENCY OF THE LOCAL23
GOVERNMENT MUST BE SIGNED BY BOTH THE EMPLOYER AND THE24
EMPLOYEE.25
(4) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE26
RELEASE OF INFORMATION REQUIRED TO BE RELEASED UNDER THE27
053
-20- "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.1
(5) NOTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM2
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT3
WITH A THIRD PARTY IN THE EMPLOYEE 'S OFFICIAL CAPACITY AND ON4
BEHALF OF THE EMPLOYER.5
(6) AS USED IN THIS SECTION:6
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN
7
EMPLOYMENT-RELATED POLICY , PRACTICE, REQUIREMENT , OR8
RESTRICTION DICTATED BY AN EMPLOYER THAT AN INDIVIDUAL MUST9
AGREE TO ABIDE BY IN ORDER TO BE HIRED BY OR RETAIN EMPLOYMENT10
WITH THE EMPLOYER.11
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
12
CURRENT OR PAST EMPLOYEE OF A LOCAL GOVERNMENT OR A13
DEPARTMENT, INSTITUTION, OR AGENCY OF A LOCAL GOVERNMENT .14
(c) "L
OCAL GOVERNMENT" MEANS A
STATUTORY OR HOME RULE15
COUNTY, A CITY AND COUNTY , OR A STATUTORY OR HOME RULE16
MUNICIPALITY.17
SECTION 5. Act subject to petition - effective date -18
applicability. (1) This act takes effect at 12:01 a.m. on the day following19
the expiration of the ninety-day period after final adjournment of the20
general assembly; except that, if a referendum petition is filed pursuant21
to section 1 (3) of article V of the state constitution against this act or an22
item, section, or part of this act within such period, then the act, item,23
section, or part will not take effect unless approved by the people at the24
general election to be held in November 2024 and, in such case, will take25
effect on the date of the official declaration of the vote thereon by the26
governor.27
053
-21- (2) This act applies to contracts and agreements entered into,1
renewed, modified, or amended on or after the applicable effective date2
of this act.3
053
-22-