First Regular Session
Seventy-fourth General Assembly
STATE OF COLORADO
REREVISED
This Version Includes All Amendments
Adopted 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 3rd Reading
May 1, 2023
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, Amabile, Bird, Brown, Hamrick, Jodeh, Lieder, Lindsay, Marshall,
Mauro, Michaelson Jenet, Sharbini, Story, Valdez
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 ; 9
(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; 18
(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 IS DEEMED TO BE26
AGAINST PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN EMPLOYEE27
053
-6- UNLESS THE PROVISION IS INTENDED TO PREVENT DISCLOSURE OF :1
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
2
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES3
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE4
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO5
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE6
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR7
SUCH FACTS AND CIRCUMSTANCES ;8
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
9
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT10
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR11
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE12
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS13
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK14
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING15
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO16
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;17
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
18
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY19
A CURRENT OR PROSPECTIVE CONTRACTOR , VENDOR, GRANTEE OR AS PART20
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE21
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; 22
(IV) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF23
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED24
OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE, OR25
CYBERSECURITY;26
(V) INFORMATION DERIVED FROM COMMUNICATIONS OF THE27
053
-7- EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR1
ADMINISTRATIVE ACTION;2
(VI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION3
AUTHORIZED BY SECTION 24-6-402; 4
(VII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE5
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER;6
(VIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE7
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF8
TITLE 24; OR9
(IX) TRADE SECRETS OWNED BY THE EMPLOYER .10
(2) (a) N
O SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES,11
PUBLIC SCHOOL, OR DEPARTMENT, INSTITUTION, OR AGENCY OF A SCHOOL12
DISTRICT, A BOARD OF COOPERATIVE SERVICES , OR A PUBLIC SCHOOL13
SHALL TAKE ANY MATERIALLY ADVERSE EMPLOYMENT -RELATED
ACTION,14
INCLUDING, WITHOUT LIMITATION, WITHDRAWAL OF AN OFFER OF 15
EMPLOYMENT, DISCHARGE, SUSPENSION, DEMOTION, DISCRIMINATION IN16
THE TERMS, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT , OR OTHER17
ADVERSE ACTION AGAINST AN EMPLOYEE ON THE GROUNDS THAT THE18
EMPLOYEE DOES NOT ENTER INTO A CONTRACT OR AGREEMENT DEEMED19
TO BE AGAINST PUBLIC POLICY AND UNENFORCEABLE UNDER SUBSECTION20
(1)(b)
OF THIS SECTION. THE TAKING OF SUCH A MATERIALLY ADVERSE
21
EMPLOYMENT-RELATED ACTION AFTER AN EMPLOYEE HAS REFUSED TO22
ENTER INTO SUCH A CONTRACT OR AGREEMENT IS PRIMA FACIE EVIDENCE23
OF RETALIATION.24
(b) A
NY
EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A25
PROVISION DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY AND26
UNENFORCEABLE PURSUANT TO SUBSECTION (1) OF THIS SECTION IS27
053
-8- LIABLE FOR THE EMPLOYEE'S REASONABLE ATTORNEY FEES AND COSTS IN1
DEFENDING AGAINST THE ACTION .2
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
3
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE4
EMPLOYEE IS PRIMARILY EMPLOYED .5
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS
6
A SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES , OR PUBLIC7
SCHOOL OR A DEPARTMENT , INSTITUTION, OR AGENCY OF A SCHOOL8
DISTRICT, A BOARD OF COOPERATIVE SERVICES, OR A PUBLIC SCHOOL AND9
AN EMPLOYEE OF THE EMPLOYER MUST BE SIGNED BY BOTH THE EMPLOYER10
AND THE EMPLOYEE.11
(4) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE12
RELEASE OF INFORMATION REQUIRED TO BE RELEASED UNDER THE13
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.14
(5) NOTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM15
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT16
WITH A THIRD PARTY IN THE EMPLOYEE'S OFFICIAL CAPACITY AND ON17
BEHALF OF THE EMPLOYER.18
(6) AS USED IN THIS SECTION:19
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN
20
EMPLOYMENT-RELATED POLICY , PRACTICE, REQUIREMENT , OR21
RESTRICTION DICTATED BY AN EMPLOYER THAT AN INDIVIDUAL MUST22
AGREE TO ABIDE BY IN ORDER TO BE HIRED BY OR RETAIN EMPLOYMENT23
WITH THE EMPLOYER.24
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
25
CURRENT OR PAST EMPLOYEE OF A SCHOOL DISTRICT , BOARD OF26
COOPERATIVE SERVICES, OR PUBLIC SCHOOL OR A DEPARTMENT ,27
053
-9- INSTITUTION, OR AGENCY OF A SCHOOL DISTRICT, BOARD OF COOPERATIVE1
SERVICES, OR PUBLIC SCHOOL.2
SECTION 3. In Colorado Revised Statutes, add 24-50.5-105.53
as follows:4
24-50.5-105.5. Nondisclosure agreements - protection of state5
employees - definitions. (1) (a) NEITHER THE STATE NOR ANY6
DEPARTMENT, INSTITUTION, OR AGENCY OF THE STATE SHALL MAKE IT A7
CONDITION OF EMPLOYMENT THAT AN EMPLOYEE EXECUTES A8
CONTRACT OR OTHER FORM OF AGREEMENT THAT PROHIBITS , PREVENTS,9
OR OTHERWISE RESTRICTS THE EMPLOYEE FROM DISCLOSING FACTUAL10
CIRCUMSTANCES CONCERNING THE EMPLOYEE 'S EMPLOYMENT WITH THE11
STATE OR ANY OF ITS DEPARTMENTS, INSTITUTIONS, OR AGENCIES UNLESS12
THE PROHIBITION OR RESTRICTION IN THE CONTRACT OR AGREEMENT IS13
NECESSARY TO PREVENT 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
-10- 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) N
ONPUBLIC AND CONFIDENTIAL LABOR RELATIONS POSITIONS
4
AND STRATEGIES;5
(IV) A
TTORNEY WORK PRODUCT ;
6
(V) V
ENDOR LISTS AND VENDOR PREFERENCES ;
7
(VI) S
TATE BUSINESS-RELATED INFORMATION RECEIVED FROM A
8
THIRD PARTY THAT THE THIRD PARTY HAS DESIGNATED CONFIDENTIAL ;9
(VII) INFORMATION AND MATTERS RELATED TO STATE ACTIVE10
DUTY ORDERS OF NATIONAL GUARD SOLDIERS AND AIRMEN AND11
PERSONNEL DISPUTES SUBJECT TO THE JURISDICTION OF THE UNITED12
STATES DEPARTMENT OF DEFENSE ;13
(VIII) TRADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE14
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY15
A CURRENT OR PROSPECTIVE CONTRACTOR , VENDOR, GRANTEE OR AS PART16
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE17
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; 18
(IX) INFORMATION BEARING ON THE SPECIALIZED DETAILS OF19
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED20
OFFICIALS OR OTHER INDIVIDUALS , PHYSICAL INFRASTRUCTURE, OR21
CYBERSECURITY;22
(X) INFORMATION DERIVED FROM COMMUNICATIONS OF THE23
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR24
ADMINISTRATIVE ACTION;25
(XI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION26
AUTHORIZED BY SECTION 24-6-402; 27
053
-11- (XII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE1
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER;2
(XIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE3
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF4
TITLE 24; OR5
(XIV) TRADE SECRETS OWNED BY THE EMPLOYER .6
(b) ANY PROVISION IN ANY CONTRACT OR AGREEMENT THAT7
VIOLATES SUBSECTION (1)(a) OF THIS SECTION IS DEEMED TO BE8
AGAINST PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN EMPLOYEE9
UNLESS THE PROVISION IS INTENDED TO PREVENT DISCLOSURE OF :10
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
11
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES12
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE13
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO14
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE15
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR16
SUCH FACTS AND CIRCUMSTANCES ;17
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
18
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT19
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR20
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE21
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS22
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK23
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING24
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO25
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;26
(III) N
ONPUBLIC AND CONFIDENTIAL LABOR RELATIONS POSITIONS
27
053
-12- AND STRATEGIES;1
(IV) A
TTORNEY WORK PRODUCT ;
2
(V) V
ENDOR LISTS AND VENDOR PREFERENCES ;
3
(VI) S
TATE BUSINESS-RELATED INFORMATION RECEIVED FROM A
4
THIRD PARTY THAT THE THIRD PARTY HAS DESIGNATED CONFIDENTIAL ;5
(VII) INFORMATION AND MATTERS RELATED TO STATE ACTIVE6
DUTY ORDERS OF NATIONAL GUARD SOLDIERS AND AIRMEN AND7
PERSONNEL DISPUTES SUBJECT TO THE JURISDICTION OF THE UNITED8
STATES DEPARTMENT OF DEFENSE ;9
(VIII) TRADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE10
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY11
A CURRENT OR PROSPECTIVE CONTRACTOR, VENDOR, GRANTEE OR AS PART12
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE13
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; 14
(IX) INFORMATION BEARING ON THE SPECIALIZED DETAILS OF15
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED16
OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE, OR17
CYBERSECURITY;18
(X) INFORMATION DERIVED FROM COMMUNICATIONS OF THE19
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR20
ADMINISTRATIVE ACTION;21
(XI) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION22
AUTHORIZED BY SECTION 24-6-402; 23
(XII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE24
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER;25
(XIII) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE26
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF27
053
-13- TITLE 24; OR1
(XIV) TRADE SECRETS OWNED BY THE EMPLOYER .2
(2) (a) N
EITHER THE STATE NOR ANY OF ITS DEPARTMENTS ,3
INSTITUTIONS, OR AGENCIES SHALL TAKE ANY MATERIALLY ADVERSE
4
EMPLOYMENT-RELATED ACTION, INCLUDING, WITHOUT LIMITATION ,5
WITHDRAWAL OF AN OFFER OF EMPLOYMENT , DISCHARGE, SUSPENSION,6
DEMOTION, DISCRIMINATION IN THE TERMS, CONDITIONS, OR PRIVILEGES7
OF EMPLOYMENT, OR OTHER ADVERSE ACTION AGAINST AN EMPLOYEE ON8
THE GROUNDS THAT THE EMPLOYEE DOES NOT ENTER INTO A CONTRACT9
OR AGREEMENT DEEMED TO BE AGAINST PUBLIC POLICY AND10
UNENFORCEABLE UNDER SUBSECTION (1)(b) OF THIS SECTION. THE TAKING11
OF SUCH A MATERIALLY ADVERSE EMPLOYMENT -RELATED ACTION AFTER12
AN EMPLOYEE HAS REFUSED TO ENTER INTO SUCH A CONTRACT OR13
AGREEMENT IS PRIMA FACIE EVIDENCE OF RETALIATION .14
(b) A
NY
EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A15
PROVISION DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY AND16
UNENFORCEABLE PURSUANT TO SUBSECTION (1) OF THIS SECTION IS17
LIABLE FOR THE EMPLOYEE'S REASONABLE ATTORNEY FEES AND COSTS IN18
DEFENDING AGAINST THE ACTION .19
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
20
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE21
EMPLOYEE IS PRIMARILY EMPLOYED .22
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS
23
THE STATE OR A DEPARTMENT , INSTITUTION, OR AGENCY OF THE STATE24
AND AN EMPLOYEE OF THE STATE OR THE DEPARTMENT , INSTITUTION, OR25
AGENCY OF THE STATE MUST BE SIGNED BY BOTH THE EMPLOYER AND THE26
EMPLOYEE.27
053
-14- (4) A NONDISCLOSURE AGREEMENT MUST STATE THAT STATE1
EMPLOYEES ARE PROTECTED FROM RETALIATION FOR DISCLOSURE OF2
INFORMATION ABOUT STATE AGENCIES THAT ARE WORKING OUTSIDE THE3
PUBLIC INTEREST IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 50.54
OF TITLE 24.5
(5) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE6
RELEASE OF INFORMATION REQUIRED TO BE RELEASED UNDER THE7
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.8
(6) NOTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM9
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT10
WITH A THIRD PARTY IN THE EMPLOYEE 'S OFFICIAL CAPACITY AND ON11
BEHALF OF THE EMPLOYER.12
(7) AS USED IN THIS SECTION:13
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN EMPLOYMENT -
14
RELATED POLICY, PRACTICE, REQUIREMENT, OR RESTRICTION DICTATED BY15
AN EMPLOYER THAT AN INDIVIDUAL MUST AGREE TO ABIDE BY IN ORDER16
TO BE HIRED BY OR RETAIN EMPLOYMENT WITH THE EMPLOYER . 17
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
18
CURRENT OR PAST EMPLOYEE OF THE STATE OR A DEPARTMENT ,19
INSTITUTION, OR AGENCY OF THE STATE.20
(c) "T
HE STATE" INCLUDES WITHOUT
LIMITATION EACH OF THE21
STATE OFFICERS LISTED IN SECTION 1 OF ARTICLE IV OF THE STATE22
CONSTITUTION AS WELL AS THE EXECUTIVE , LEGISLATIVE, AND JUDICIAL23
DEPARTMENTS OF THE GOVERNMENT OF THE STATE .24
SECTION 4. In Colorado Revised Statutes, add part 16 to article25
1 of title 29 as follows:26
PART 1627
053
-15- LOCAL GOVERNMENT NONDISCLOSURE AGREEMENTS1
29-1-1601. Nondisclosure agreements - protection of local2
government employees - definitions. (1) (a) NEITHER A LOCAL3
GOVERNMENT NOR A DEPARTMENT , INSTITUTION, OR AGENCY OF A LOCAL4
GOVERNMENT SHALL MAKE IT A CONDITION OF EMPLOYMENT THAT AN5
EMPLOYEE EXECUTES A CONTRACT OR OTHER FORM OF AGREEMENT6
THAT PROHIBITS, PREVENTS, OR OTHERWISE RESTRICTS THE EMPLOYEE 7
FROM DISCLOSING FACTUAL CIRCUMSTANCES CONCERNING THE8
EMPLOYEE'S EMPLOYMENT WITH THE LOCAL GOVERNMENT OR ANY OF ITS9
DEPARTMENTS, INSTITUTIONS, OR AGENCIES UNLESS THE PROHIBITION OR10
RESTRICTION IN THE CONTRACT OR AGREEMENT IS NECESSARY TO PREVENT11
DISCLOSURE 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
-16- PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;1
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
2
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY3
A CURRENT OR PROSPECTIVE CONTRACTOR , VENDOR, GRANTEE OR AS PART4
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE5
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; 6
(IV) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
7
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY8
AN EMPLOYER'S CURRENT OR PROSPECTIVE CUSTOMER , CONTRACTOR,9
LESSEE, LESSOR, BUSINESS PARTNER, OR AFFILIATE;10
(V) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
11
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY12
A PURCHASER OR SELLER OF PROPERTY THAT IS ENGAGED IN13
NEGOTIATIONS OR UNDER CONTRACT WITH THE EMPLOYER ; 14
(VI) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF15
SECURITY ARRANGEMENTS OR CRIMINAL INVESTIGATIONS INCLUDING FOR16
ELECTED OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE,17
OR CYBERSECURITY;18
(VII) INFORMATION DERIVED FROM COMMUNICATIONS OF THE19
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR20
ADMINISTRATIVE ACTION;21
(VIII) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION22
AUTHORIZED BY SECTION 24-6-402; 23
(IX) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE24
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER;25
(X) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE26
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF27
053
-17- TITLE 24; OR1
(XI) TRADE SECRETS OWNED BY THE EMPLOYER .2
(b) ANY PROVISION IN ANY CONTRACT OR AGREEMENT THAT3
VIOLATES SUBSECTION (1)(a) OF THIS SECTION IS DEEMED TO BE4
AGAINST PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN EMPLOYEE5
UNLESS THE PROVISION IS INTENDED TO PREVENT DISCLOSURE OF :6
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
7
DISCOVERY OF THE EMPLOYEE'S IDENTITY, OR FACTUAL CIRCUMSTANCES8
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE9
LEGITIMATE PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO10
THE AGREEMENT IF THE EMPLOYEE ELECTS IN THE EMPLOYEE 'S SOLE11
DISCRETION TO RESTRICT DISCLOSURE OF THE EMPLOYEE 'S IDENTITY OR12
SUCH FACTS AND CIRCUMSTANCES ;13
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
14
INFORMATION, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT15
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR16
REGULATIONS, THE STATE CONSTITUTION , STATE LAW , STATE17
REGULATIONS, OR STATE RULES, OR A COURT OF LAW OR AS18
ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS, AS PRIVILEGED WORK19
PRODUCT, AS COMMUNICATIONS RELATED TO A THREATENED OR PENDING20
LEGAL OR ADMINISTRATIVE ACTION, OR AS MATERIALS RELATED TO21
PERSONNEL OR REGULATORY INVESTIGATIONS BY THE EMPLOYER ;22
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
23
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY24
A CURRENT OR PROSPECTIVE CONTRACTOR , VENDOR, GRANTEE OR AS PART25
OF A PUBLIC-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE26
AS PART OF AN ECONOMIC DEVELOPMENT ACTIVITY ; 27
053
-18- (IV) TRADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE1
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY2
AN EMPLOYER'S CURRENT OR PROSPECTIVE CUSTOMER , CONTRACTOR,3
LESSEE, LESSOR, BUSINESS PARTNER, OR AFFILIATE;4
(V) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
5
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY6
A PURCHASER OR SELLER OF PROPERTY THAT IS ENGAGED IN7
NEGOTIATIONS OR UNDER CONTRACT WITH THE EMPLOYER ; 8
(VI) I
NFORMATION
BEARING ON THE SPECIALIZED DETAILS OF9
SECURITY ARRANGEMENTS OR CRIMINAL INVESTIGATIONS INCLUDING FOR10
ELECTED OFFICIALS OR OTHER INDIVIDUALS, PHYSICAL INFRASTRUCTURE,11
OR CYBERSECURITY;12
(VII) INFORMATION DERIVED FROM COMMUNICATIONS OF THE13
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR14
ADMINISTRATIVE ACTION;15
(VIII) DISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION16
AUTHORIZED BY SECTION 24-6-402; 17
(IX) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE18
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER;19
(X) INFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE20
UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF21
TITLE 24; OR22
(XI) TRADE SECRETS OWNED BY THE EMPLOYER .23
(2) (a) N
EITHER A LOCAL GOVERNMENT NOR A DEPARTMENT , AN24
INSTITUTION, OR AN AGENCY OF A LOCAL GOVERNMENT SHALL TAKE ANY25
MATERIALLY ADVERSE EMPLOYMENT -RELATED
ACTION, INCLUDING,26
WITHOUT LIMITATION, WITHDRAWAL OF AN OFFER OF EMPLOYMENT ,27
053
-19- DISCHARGE, SUSPENSION, DEMOTION, DISCRIMINATION IN THE TERMS ,1
CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, OR OTHER ADVERSE ACTION2
AGAINST AN EMPLOYEE ON THE GROUNDS THAT THE EMPLOYEE DOES NOT3
ENTER INTO A CONTRACT OR AGREEMENT DEEMED TO BE AGAINST PUBLIC4
POLICY AND UNENFORCEABLE UNDER SUBSECTION (1)(b) OF THIS SECTION.5
T
HE TAKING OF SUCH A MATERIALLY ADVERSE EMPLOYMENT -RELATED
6
ACTION AFTER AN EMPLOYEE HAS REFUSED TO ENTER INTO SUCH A7
CONTRACT OR AGREEMENT IS PRIMA FACIE EVIDENCE OF RETALIATION .8
(b) A
NY
EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A9
PROVISION DEEMED BY A COURT AGAINST PUBLIC POLICY AND10
UNENFORCEABLE PURSUANT TO SUBSECTION (1) OF THIS SECTION IS11
LIABLE FOR THE EMPLOYEE'S REASONABLE ATTORNEY FEES AND COSTS IN12
DEFENDING AGAINST THE ACTION .13
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
14
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE15
EMPLOYEE IS PRIMARILY EMPLOYED .16
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS
17
A LOCAL GOVERNMENT OR A DEPARTMENT , INSTITUTION, OR AGENCY OF18
A LOCAL GOVERNMENT AND AN EMPLOYEE OF THE LOCAL GOVERNMENT19
OR THE DEPARTMENT , INSTITUTION, OR AGENCY OF THE LOCAL20
GOVERNMENT MUST BE SIGNED BY BOTH THE EMPLOYER AND THE21
EMPLOYEE.22
(4) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE23
RELEASE OF INFORMATION REQUIRED TO BE RELEASED UNDER THE24
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.25
(5) NOTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM26
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT27
053
-20- WITH A THIRD PARTY IN THE EMPLOYEE'S OFFICIAL CAPACITY AND ON1
BEHALF OF THE EMPLOYER.2
(6) AS USED IN THIS SECTION:3
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN
4
EMPLOYMENT-RELATED POLICY , PRACTICE, REQUIREMENT , OR5
RESTRICTION DICTATED BY AN EMPLOYER THAT AN INDIVIDUAL MUST6
AGREE TO ABIDE BY IN ORDER TO BE HIRED BY OR RETAIN EMPLOYMENT7
WITH THE EMPLOYER.8
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
9
CURRENT OR PAST EMPLOYEE OF A LOCAL GOVERNMENT OR A10
DEPARTMENT, INSTITUTION, OR AGENCY OF A LOCAL GOVERNMENT .11
(c) "L
OCAL GOVERNMENT" MEANS A
STATUTORY OR HOME RULE12
COUNTY, A CITY AND COUNTY , OR A STATUTORY OR HOME RULE13
MUNICIPALITY.14
SECTION 5. Act subject to petition - effective date -15
applicability. (1) This act takes effect at 12:01 a.m. on the day following16
the expiration of the ninety-day period after final adjournment of the17
general assembly; except that, if a referendum petition is filed pursuant18
to section 1 (3) of article V of the state constitution against this act or an19
item, section, or part of this act within such period, then the act, item,20
section, or part will not take effect unless approved by the people at the21
general election to be held in November 2024 and, in such case, will take22
effect on the date of the official declaration of the vote thereon by the23
governor.24
(2) This act applies to contracts and agreements entered into,25
renewed, modified, or amended on or after the applicable effective date26
of this act.27
053
-21-