SENATE BILL 23-053
BY SENATOR(S) Kirkmeyer and Rodriguez, Baisley, Bridges, Buckner,
Coleman, Gardner, Ginal, Gonzales, Hansen, Kolker, Liston, Lundeen,
Marchman, Moreno, Mullica, Pelton B., Pelton R., Priola, Roberts,
Simpson, Smallwood, Van Winkle, Will, Winter F.;
also REPRESENTATIVE(S) Woodrow and Evans, Amabile, Bird, Brown,
Hamrick, Jodeh, Lieder, Lindsay, Marshall, Mauro, Michaelson Jenet,
Sharbini, Story, Valdez.
C
ONCERNING RESTRICTIONS ON NONDISCLOSURE AGREEMENTS THAT AFFECT
GOVERNMENT EMPLOYEES
.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. Legislative declaration. (1) The general assembly
finds and declares that:
(a) (I) Government employees, including employees of the state,
counties, cities and counties, municipalities, school districts, and any
department, institution, or agency of any such government, are public
servants who are hired to undertake their job duties and responsibilities to
serve the public;
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. (II) Government employees are paid with public money, and they
and their employers are accountable to the public for the manner in which
they carry out their public duties and responsibilities;
(III) The public has a fundamental interest in transparency
concerning the conduct of government, including state government, county
government, city and county government, municipal government, and
school district government. From the free speech provisions of its founding
constitution to the enactment of laws requiring that meetings be conducted
in an open manner and that public records be broadly disclosed, the state of
Colorado has been at the forefront of efforts to ensure that the formation of
public policy is public business that may not be conducted in secret. These
constitutional and statutory requirements are intended to provide the public
with as much knowledge as possible about how public business is being
conducted while it is being conducted;
(IV) Nondisclosure agreements imposed on applicants for
government employment, government employees, and past government
employees that effectively prohibit such applicants and employees from
disclosing details about their prospective, current, or past government
service obstruct these fundamental principles of government transparency
and public accountability. The details of public business should not be
hidden from public view by means of nondisclosure agreements imposed
on such applicants or employees as a condition of their hiring or
employment or in connection with their leaving government service or their
past government service; and
(V) In the absence of legitimate concerns about the protection of the
privacy interests of applicants for government employment, government
employees, and past government employees, or to protect against disclosure
matters that are truly confidential and sensitive to the public interest, neither
the state nor any of its departments, institutions, or agencies should be
permitted to silence such applicants and employees from being able to speak
openly about their prospective, current, or past government service through
the imposition of nondisclosure agreements. Such applicants and employees
should ordinarily be permitted to speak openly about their prospective,
current, or past government service.
(b) By enacting this act, the general assembly intends to restrict the
ability of a government, including the state, a county, a city and county, a
PAGE 2-SENATE BILL 23-053 municipality, or a school district, or any department, institution, or agency
of a government, from requiring applicants for employment or employees
to enter into nondisclosure agreements as a condition of their being hired.
Nor may such a government, department, institution, or agency insist upon
the enforcement of a nondisclosure agreement when or after an employee
ends their employment with the government, department, institution, or
agency. The general assembly intends that, absent the presence of very
select circumstances, enforcement of such nondisclosure agreements be
prohibited and that such nondisclosure agreements be deemed void as
against public policy and of no legal force and effect. The general assembly
further intends that this act be liberally construed to further the fundamental
principle that state government be conducted in public to the greatest extent
possible; and
(c) Transparency concerning the conduct of government is a matter
of statewide concern and, therefore, the provisions of this act apply to all
counties, cities and counties, municipalities, and school districts including
home rule counties, cities and counties, and municipalities.
SECTION 2. In Colorado Revised Statutes, add 22-1-135.5 as
follows:
22-1-135.5. Nondisclosure agreements - protection of school
district, board of cooperative services, and public school employees -
definition. (1) (a) N
O SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES,
PUBLIC SCHOOL, OR ANY DEPARTMENT , INSTITUTION, OR AGENCY OF A
SCHOOL DISTRICT
, BOARD OF COOPERATIVE SERVICES , OR PUBLIC SCHOOL
SHALL MAKE IT A CONDITION OF EMPLOYMENT THAT AN EMPLOYEE
EXECUTES A CONTRACT OR OTHER FORM OF AGREEMENT THAT PROHIBITS
,
PREVENTS, OR OTHERWISE RESTRICTS THE EMPLOYEE FROM DISCLOSING
FACTUAL CIRCUMSTANCES CONCERNING THE EMPLOYEE
'S EMPLOYMENT
WITH THE SCHOOL DISTRICT
, BOARD OF COOPERATIVE SERVICES, OR PUBLIC
SCHOOL OR ANY OF ITS DEPARTMENTS
, INSTITUTIONS, OR AGENCIES UNLESS
THE PROHIBITION OR RESTRICTION IN THE CONTRACT OR AGREEMENT IS
NECESSARY TO PREVENT DISCLOSURE OF
:
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
DISCOVERY OF THE EMPLOYEE
'S IDENTITY, OR FACTUAL CIRCUMSTANCES
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE LEGITIMATE
PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO THE AGREEMENT
PAGE 3-SENATE BILL 23-053 IF THE EMPLOYEE ELECTS IN THE EMPLOYEE'S SOLE DISCRETION TO RESTRICT
DISCLOSURE OF THE EMPLOYEE
'S IDENTITY OR SUCH FACTS AND
CIRCUMSTANCES
;
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
INFORMATION
, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR
REGULATIONS
, THE STATE CONSTITUTION, STATE LAW, STATE REGULATIONS,
OR STATE RULES, OR A COURT OF LAW OR AS ATTORNEY-CLIENT PRIVILEGED
COMMUNICATIONS
, AS PRIVILEGED WORK PRODUCT, AS COMMUNICATIONS
RELATED TO A THREATENED OR PENDING LEGAL OR ADMINISTRATIVE
ACTION
, OR AS MATERIALS RELATED TO PERSONNEL OR REGULATORY
INVESTIGATIONS BY THE EMPLOYER
;
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
CURRENT OR PROSPECTIVE CONTRACTOR
, VENDOR, GRANTEE OR AS PART OF
A PUBLIC
-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE AS
PART OF AN ECONOMIC DEVELOPMENT ACTIVITY
;
(IV) I
NFORMATION BEARING ON THE SPECIALIZED DETAILS OF
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING SECURITY
ARRANGEMENTS FOR OR INVESTIGATIONS INTO ELECTED OFFICIALS OR OTHER
INDIVIDUALS
, PHYSICAL INFRASTRUCTURE, OR CYBERSECURITY;
(V) I
NFORMATION DERIVED FROM COMMUNICATIONS OF THE
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR
ADMINISTRATIVE ACTION
;
(VI) D
ISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION
AUTHORIZED BY SECTION
24-6-402;
(VII) T
RADE SECRETS OR INFORMATION DERIVED FROM TRADE
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER
;
(VIII) I
NFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE
UNDER THE
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF
TITLE
24; OR
(IX) TRADE SECRETS OWNED BY THE EMPLOYER .
PAGE 4-SENATE BILL 23-053 (b) ANY PROVISION IN ANY CONTRACT OR AGREEMENT THAT
VIOLATES SUBSECTION
(1)(a) OF THIS SECTION IS DEEMED TO BE AGAINST
PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN EMPLOYEE UNLESS THE
PROVISION IS INTENDED TO PREVENT DISCLOSURE OF
:
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
DISCOVERY OF THE EMPLOYEE
'S IDENTITY, OR FACTUAL CIRCUMSTANCES
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE LEGITIMATE
PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO THE AGREEMENT
IF THE EMPLOYEE ELECTS IN THE EMPLOYEE
'S SOLE DISCRETION TO RESTRICT
DISCLOSURE OF THE EMPLOYEE
'S IDENTITY OR SUCH FACTS AND
CIRCUMSTANCES
;
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
INFORMATION
, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR
REGULATIONS
, THE STATE CONSTITUTION, STATE LAW, STATE REGULATIONS,
OR STATE RULES, OR A COURT OF LAW OR AS ATTORNEY-CLIENT PRIVILEGED
COMMUNICATIONS
, AS PRIVILEGED WORK PRODUCT, AS COMMUNICATIONS
RELATED TO A THREATENED OR PENDING LEGAL OR ADMINISTRATIVE
ACTION
, OR AS MATERIALS RELATED TO PERSONNEL OR REGULATORY
INVESTIGATIONS BY THE EMPLOYER
;
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
CURRENT OR PROSPECTIVE CONTRACTOR
, VENDOR, GRANTEE OR AS PART OF
A PUBLIC
-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE AS
PART OF AN ECONOMIC DEVELOPMENT ACTIVITY
;
(IV) I
NFORMATION BEARING ON THE SPECIALIZED DETAILS OF
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED
OFFICIALS OR OTHER INDIVIDUALS
, PHYSICAL INFRASTRUCTURE , OR
CYBERSECURITY
;
(V) I
NFORMATION DERIVED FROM COMMUNICATIONS OF THE
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR
ADMINISTRATIVE ACTION
;
(VI) D
ISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION
AUTHORIZED BY SECTION
24-6-402;
PAGE 5-SENATE BILL 23-053 (VII) TRADE SECRETS OR INFORMATION DERIVED FROM TRADE
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER
;
(VIII) I
NFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE
UNDER THE
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF
TITLE
24; OR
(IX) TRADE SECRETS OWNED BY THE EMPLOYER .
(2) (a) N
O SCHOOL DISTRICT, BOARD OF COOPERATIVE SERVICES ,
PUBLIC SCHOOL, OR DEPARTMENT, INSTITUTION, OR AGENCY OF A SCHOOL
DISTRICT
, A BOARD OF COOPERATIVE SERVICES, OR A PUBLIC SCHOOL SHALL
TAKE ANY MATERIALLY ADVERSE EMPLOYMENT
-RELATED ACTION,
INCLUDING, WITHOUT LIMITATION , WITHDRAWAL OF AN OFFER OF
EMPLOYMENT
, DISCHARGE, SUSPENSION, DEMOTION, DISCRIMINATION IN THE
TERMS
, CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, OR OTHER ADVERSE
ACTION AGAINST AN EMPLOYEE ON THE GR OUNDS THAT THE EMPLOYEE DOES
NOT ENTER INTO A CONTRACT OR AGREEMENT DEEMED TO BE AGAINST
PUBLIC POLICY AND UNENFORCEABLE UNDER SUBSECTION
(1)(b) OF THIS
SECTION
. THE TAKING OF SUCH A MATERIALLY ADVERSE
EMPLOYMENT
-RELATED ACTION AFTER AN EMPLOYEE HAS REFUSED TO
ENTER INTO SUCH A CONTRACT OR AGREEMENT IS PRIMA FACIE EVIDENCE OF
RETALIATION
.
(b) A
NY EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A
PROVISION DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY AND
UNENFORCEABLE PURSUANT TO SUBSECTION
(1) OF THIS SECTION IS LIABLE
FOR THE EMPLOYEE
'S REASONABLE ATTORNEY FEES AND COSTS IN
DEFENDING AGAINST THE ACTION
.
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE
EMPLOYEE IS PRIMARILY EMPLOYED
.
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS A
SCHOOL DISTRICT
, BOARD OF COOPERATIVE SERVICES, OR PUBLIC SCHOOL OR
A DEPARTMENT
, INSTITUTION, OR AGENCY OF A SCHOOL DISTRICT, A BOARD
OF COOPERATIVE SERVICES
, OR A PUBLIC SCHOOL AND AN EMPLOYEE OF THE
EMPLOYER MUST BE SIGNED BY BOTH THE EMPLOYER AND THE EMPLOYEE
.
PAGE 6-SENATE BILL 23-053 (4) A NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE RELEASE
OF INFORMATION REQUIRED TO BE RELEASED UNDER THE
"COLORADO OPEN
RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.
(5) N
OTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT
WITH A THIRD PARTY IN THE EMPLOYEE
'S OFFICIAL CAPACITY AND ON
BEHALF OF THE EMPLOYER
.
(6) A
S USED IN THIS SECTION:
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN
EMPLOYMENT
-RELATED POLICY, PRACTICE, REQUIREMENT, OR RESTRICTION
DICTATED BY AN EMPLOYER THAT AN INDIVIDUAL MUST AGREE TO ABIDE BY
IN ORDER TO BE HIRED BY OR RETAIN EMPLOYMENT WITH THE EMPLOYER
.
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
CURRENT OR PAST EMPLOYEE OF A SCHOOL DISTRICT
, BOARD OF
COOPERATIVE SERVICES
, OR PUBLIC SCHOOL OR A DEPARTMENT ,
INSTITUTION, OR AGENCY OF A SCHOOL DISTRICT, BOARD OF COOPERATIVE
SERVICES
, OR PUBLIC SCHOOL.
SECTION 3. In Colorado Revised Statutes, add 24-50.5-105.5 as
follows:
24-50.5-105.5. Nondisclosure agreements - protection of state
employees - definitions. (1) (a) N
EITHER THE STATE NOR ANY
DEPARTMENT
, INSTITUTION, OR AGENCY OF THE STATE SHALL MAKE IT A
CONDITION OF EMPLOYMENT THAT AN EMPLOYEE EXECUTES A CONTRACT OR
OTHER FORM OF AGREEMENT THAT PROHIBITS
, PREVENTS, OR OTHERWISE
RESTRICTS THE EMPLOYEE FROM DISCLOSING FACTUAL CIRCUMSTANCES
CONCERNING THE EMPLOYEE
'S EMPLOYMENT WITH THE STATE OR ANY OF ITS
DEPARTMENTS
, INSTITUTIONS, OR AGENCIES UNLESS THE PROHIBITION OR
RESTRICTION IN THE CONTRACT OR AGREEMENT IS NECESSARY TO PREVENT
DISCLOSURE OF
:
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
DISCOVERY OF THE EMPLOYEE
'S IDENTITY, OR FACTUAL CIRCUMSTANCES
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE LEGITIMATE
PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO THE AGREEMENT
PAGE 7-SENATE BILL 23-053 IF THE EMPLOYEE ELECTS IN THE EMPLOYEE'S SOLE DISCRETION TO RESTRICT
DISCLOSURE OF THE EMPLOYEE
'S IDENTITY OR SUCH FACTS AND
CIRCUMSTANCES
;
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
INFORMATION
, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR
REGULATIONS
, THE STATE CONSTITUTION, STATE LAW, STATE REGULATIONS,
OR STATE RULES, OR A COURT OF LAW OR AS ATTORNEY-CLIENT PRIVILEGED
COMMUNICATIONS
, AS PRIVILEGED WORK PRODUCT, AS COMMUNICATIONS
RELATED TO A THREATENED OR PENDING LEGAL OR ADMINISTRATIVE
ACTION
, OR AS MATERIALS RELATED TO PERSONNEL OR REGULATORY
INVESTIGATIONS BY THE EMPLOYER
;
(III) N
ONPUBLIC AND CONFIDENTIAL LABOR RELATIONS POSITIONS
AND STRATEGIES
;
(IV) A
TTORNEY WORK PRODUCT ;
(V) V
ENDOR LISTS AND VENDOR PREFERENCES ;
(VI) S
TATE BUSINESS-RELATED INFORMATION RECEIVED FROM A
THIRD PARTY THAT THE THIRD PARTY HAS DESIGNATED CONFIDENTIAL
;
(VII) I
NFORMATION AND MATTERS RELATED TO STATE ACTIVE DUTY
ORDERS OF NATIONAL GUARD SOLDIERS AND AIRMEN AND PERSONNEL
DISPUTES SUBJECT TO THE JURISDICTION OF THE
UNITED STATES
DEPARTMENT OF DEFENSE
;
(VIII) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
CURRENT OR PROSPECTIVE CONTRACTOR
, VENDOR, GRANTEE OR AS PART OF
A PUBLIC
-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE AS
PART OF AN ECONOMIC DEVELOPMENT ACTIVITY
;
(IX) I
NFORMATION BEARING ON THE SPECIALIZED DETAILS OF
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED
OFFICIALS OR OTHER INDIVIDUALS
, PHYSICAL INFRASTRUCTURE , OR
CYBERSECURITY
;
PAGE 8-SENATE BILL 23-053 (X) INFORMATION DERIVED FROM COMMUNICATIONS OF THE
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR
ADMINISTRATIVE ACTION
;
(XI) D
ISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION
AUTHORIZED BY SECTION
24-6-402;
(XII) T
RADE SECRETS OR INFORMATION DERIVED FROM TRADE
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER
;
(XIII) I
NFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE
UNDER THE
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF
TITLE
24; OR
(XIV) TRADE SECRETS OWNED BY THE EMPLOYER .
(b) A
NY PROVISION IN ANY CONTRACT OR AGREEMENT THAT
VIOLATES SUBSECTION
(1)(a) OF THIS SECTION IS DEEMED TO BE AGAINST
PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN EMPLOYEE UNLESS THE
PROVISION IS INTENDED TO PREVENT DISCLOSURE OF
:
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
DISCOVERY OF THE EMPLOYEE
'S IDENTITY, OR FACTUAL CIRCUMSTANCES
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE LEGITIMATE
PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO THE AGREEMENT
IF THE EMPLOYEE ELECTS IN THE EMPLOYEE
'S SOLE DISCRETION TO RESTRICT
DISCLOSURE OF THE EMPLOYEE
'S IDENTITY OR SUCH FACTS AND
CIRCUMSTANCES
;
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
INFORMATION
, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR
REGULATIONS
, THE STATE CONSTITUTION, STATE LAW, STATE REGULATIONS,
OR STATE RULES, OR A COURT OF LAW OR AS ATTORNEY-CLIENT PRIVILEGED
COMMUNICATIONS
, AS PRIVILEGED WORK PRODUCT, AS COMMUNICATIONS
RELATED TO A THREATENED OR PENDING LEGAL OR ADMINISTRATIVE
ACTION
, OR AS MATERIALS RELATED TO PERSONNEL OR REGULATORY
INVESTIGATIONS BY THE EMPLOYER
;
(III) N
ONPUBLIC AND CONFIDENTIAL LABOR RELATIONS POSITIONS
PAGE 9-SENATE BILL 23-053 AND STRATEGIES;
(IV) A
TTORNEY WORK PRODUCT ;
(V) V
ENDOR LISTS AND VENDOR PREFERENCES ;
(VI) S
TATE BUSINESS-RELATED INFORMATION RECEIVED FROM A
THIRD PARTY THAT THE THIRD PARTY HAS DESIGNATED CONFIDENTIAL
;
(VII) I
NFORMATION AND MATTERS RELATED TO STATE ACTIVE DUTY
ORDERS OF NATIONAL GUARD SOLDIERS AND AIRMEN AND PERSONNEL
DISPUTES SUBJECT TO THE JURISDICTION OF THE
UNITED STATES
DEPARTMENT OF DEFENSE
;
(VIII) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
CURRENT OR PROSPECTIVE CONTRACTOR
, VENDOR, GRANTEE OR AS PART OF
A PUBLIC
-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE AS
PART OF AN ECONOMIC DEVELOPMENT ACTIVITY
;
(IX) I
NFORMATION BEARING ON THE SPECIALIZED DETAILS OF
SECURITY ARRANGEMENTS OR INVESTIGATIONS INCLUDING FOR ELECTED
OFFICIALS OR OTHER INDIVIDUALS
, PHYSICAL INFRASTRUCTURE , OR
CYBERSECURITY
;
(X) I
NFORMATION DERIVED FROM COMMUNICATIONS OF THE
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR
ADMINISTRATIVE ACTION
;
(XI) D
ISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION
AUTHORIZED BY SECTION
24-6-402;
(XII) T
RADE SECRETS OR INFORMATION DERIVED FROM TRADE
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER
;
(XIII) I
NFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE
UNDER THE
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF
TITLE
24; OR
(XIV) TRADE SECRETS OWNED BY THE EMPLOYER .
PAGE 10-SENATE BILL 23-053 (2) (a) NEITHER THE STATE NOR ANY OF ITS DEPARTMENTS ,
INSTITUTIONS, OR AGENCIES SHALL TAKE ANY MATERIALLY ADVERSE
EMPLOYMENT
-RELATED ACTION, INCLUDING, WITHOUT LIMITATION ,
WITHDRAWAL OF AN OFFER OF EMPLOYMENT , DISCHARGE, SUSPENSION,
DEMOTION, DISCRIMINATION IN THE TERMS, CONDITIONS, OR PRIVILEGES OF
EMPLOYMENT
, OR OTHER ADVERSE ACTION AGAINST AN EMPLOYEE ON THE
GROUNDS THAT THE EMPLOYEE DOES NOT ENTER INTO A CONTRACT OR
AGREEMENT DEEMED TO BE AGAINST PUBLIC POLICY AND UNENFORCEABLE
UNDER SUBSECTION
(1)(b) OF THIS SECTION. THE TAKING OF SUCH A
MATERIALLY ADVERSE EMPLOYMENT
-RELATED ACTION AFTER AN EMPLOYEE
HAS REFUSED TO ENTER INTO SUCH A CONTRACT OR AGREEMENT IS PRIMA
FACIE EVIDENCE OF RETALIATION
.
(b) A
NY EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A
PROVISION DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY AND
UNENFORCEABLE PURSUANT TO SUBSECTION
(1) OF THIS SECTION IS LIABLE
FOR THE EMPLOYEE
'S REASONABLE ATTORNEY FEES AND COSTS IN
DEFENDING AGAINST THE ACTION
.
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE
EMPLOYEE IS PRIMARILY EMPLOYED
.
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS THE
STATE OR A DEPARTMENT
, INSTITUTION, OR AGENCY OF THE STATE AND AN
EMPLOYEE OF THE STATE OR THE DEPARTMENT
, INSTITUTION, OR AGENCY OF
THE STATE MUST BE SIGNED BY BOTH THE EMPLOYER AND THE EMPLOYEE
.
(4) A
NONDISCLOSURE AGREEMENT MUST STATE THAT STATE
EMPLOYEES ARE PROTECTED FROM RETALIATION FOR DISCLOSURE OF
INFORMATION ABOUT STATE AGENCIES THAT ARE WORKING OUTSIDE THE
PUBLIC INTEREST IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
50.5 OF
TITLE
24.
(5) A
NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE RELEASE
OF INFORMATION REQUIRED TO BE RELEASED UNDER THE
"COLORADO OPEN
RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.
(6) N
OTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT
PAGE 11-SENATE BILL 23-053 WITH A THIRD PARTY IN THE EMPLOYEE 'S OFFICIAL CAPACITY AND ON
BEHALF OF THE EMPLOYER
.
(7) A
S USED IN THIS SECTION:
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN EMPLOYMENT -
RELATED POLICY, PRACTICE, REQUIREMENT, OR RESTRICTION DICTATED BY
AN EMPLOYER THAT AN INDIVIDUAL MUST AGREE TO ABIDE BY IN ORDER TO
BE HIRED BY OR RETAIN EMPLOYMENT WITH THE EMPLOYER
.
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
CURRENT OR PAST EMPLOYEE OF THE STATE OR A DEPARTMENT
,
INSTITUTION, OR AGENCY OF THE STATE.
(c) "T
HE STATE" INCLUDES WITHOUT LIMITATION EACH OF THE
STATE OFFICERS LISTED IN SECTION
1 OF ARTICLE IV OF THE STATE
CONSTITUTION AS WELL AS THE EXECUTIVE
, LEGISLATIVE, AND JUDICIAL
DEPARTMENTS OF THE GOVERNMENT OF THE STATE
.
SECTION 4. In Colorado Revised Statutes, add part 16 to article
1 of title 29 as follows:
PART 16
LOCAL GOVERNMENT NONDISCLOSURE AGREEMENTS
29-1-1601. Nondisclosure agreements - protection of local
government employees - definitions. (1) (a) N
EITHER A LOCAL
GOVERNMENT NOR A DEPARTMENT
, INSTITUTION, OR AGENCY OF A LOCAL
GOVERNMENT SHALL MAKE IT A CONDITION OF EMPLOYMENT THAT AN
EMPLOYEE EXECUTES A CONTRACT OR OTHER FORM OF AGREEMENT THAT
PROHIBITS
, PREVENTS, OR OTHERWISE RESTRICTS THE EMPLOYEE FROM
DISCLOSING FACTUAL CIRCUMSTANCES CONCERNING THE EMPLOYEE
'S
EMPLOYMENT WITH THE LOCAL GOVERNMENT OR ANY OF ITS DEPARTMENTS
,
INSTITUTIONS, OR AGENCIES UNLESS THE PROHIBITION OR RESTRICTION IN
THE CONTRACT OR AGREEMENT IS NECESSARY TO PREVENT DISCLOSURE OF
:
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
DISCOVERY OF THE EMPLOYEE
'S IDENTITY, OR FACTUAL CIRCUMSTANCES
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE LEGITIMATE
PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO THE AGREEMENT
PAGE 12-SENATE BILL 23-053 IF THE EMPLOYEE ELECTS IN THE EMPLOYEE'S SOLE DISCRETION TO RESTRICT
DISCLOSURE OF THE EMPLOYEE
'S IDENTITY OR SUCH FACTS AND
CIRCUMSTANCES
;
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
INFORMATION
, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR
REGULATIONS
, THE STATE CONSTITUTION, STATE LAW, STATE REGULATIONS,
OR STATE RULES, OR A COURT OF LAW OR AS ATTORNEY-CLIENT PRIVILEGED
COMMUNICATIONS
, AS PRIVILEGED WORK PRODUCT, AS COMMUNICATIONS
RELATED TO A THREATENED OR PENDING LEGAL OR ADMINISTRATIVE
ACTION
, OR AS MATERIALS RELATED TO PERSONNEL OR REGULATORY
INVESTIGATIONS BY THE EMPLOYER
;
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
CURRENT OR PROSPECTIVE CONTRACTOR
, VENDOR, GRANTEE OR AS PART OF
A PUBLIC
-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE AS
PART OF AN ECONOMIC DEVELOPMENT ACTIVITY
;
(IV) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY AN
EMPLOYER
'S CURRENT OR PROSPECTIVE CUSTOMER , CONTRACTOR, LESSEE,
LESSOR, BUSINESS PARTNER, OR AFFILIATE;
(V) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
PURCHASER OR SELLER OF PROPERTY THAT IS ENGAGED IN NEGOTIATIONS OR
UNDER CONTRACT WITH THE EMPLOYER
;
(VI) I
NFORMATION BEARING ON THE SPECIALIZED DETAILS OF
SECURITY ARRANGEMENTS OR CRIMINAL INVESTIGATIONS INCLUDING FOR
ELECTED OFFICIALS OR OTHER INDIVIDUALS
, PHYSICAL INFRASTRUCTURE, OR
CYBERSECURITY
;
(VII) I
NFORMATION DERIVED FROM COMMUNICATIONS OF THE
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR
ADMINISTRATIVE ACTION
;
(VIII) D
ISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION
PAGE 13-SENATE BILL 23-053 AUTHORIZED BY SECTION 24-6-402;
(IX) T
RADE SECRETS OR INFORMATION DERIVED FROM TRADE
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER
;
(X) I
NFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE
UNDER THE
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF
TITLE
24; OR
(XI) TRADE SECRETS OWNED BY THE EMPLOYER .
(b) A
NY PROVISION IN ANY CONTRACT OR AGREEMENT THAT
VIOLATES SUBSECTION
(1)(a) OF THIS SECTION IS DEEMED TO BE AGAINST
PUBLIC POLICY AND IS UNENFORCEABLE AGAINST AN EMPLOYEE UNLESS THE
PROVISION IS INTENDED TO PREVENT DISCLOSURE OF
:
(I) T
HE EMPLOYEE'S IDENTITY, FACTS THAT MIGHT LEAD TO THE
DISCOVERY OF THE EMPLOYEE
'S IDENTITY, OR FACTUAL CIRCUMSTANCES
RELATING TO THE EMPLOYMENT THAT REASONABLY IMPLICATE LEGITIMATE
PRIVACY INTERESTS OF THE EMPLOYEE WHO IS A PARTY TO THE AGREEMENT
IF THE EMPLOYEE ELECTS IN THE EMPLOYEE
'S SOLE DISCRETION TO RESTRICT
DISCLOSURE OF THE EMPLOYEE
'S IDENTITY OR SUCH FACTS AND
CIRCUMSTANCES
;
(II) D
ATA; INFORMATION, INCLUDING PERSONAL IDENTIFYING
INFORMATION
, AS DEFINED IN SECTION 24-74-102 (1); OR MATTERS THAT
ARE REQUIRED TO BE KEPT CONFIDENTIAL BY FEDERAL LAW OR
REGULATIONS
, THE STATE CONSTITUTION, STATE LAW, STATE REGULATIONS,
OR STATE RULES, OR A COURT OF LAW OR AS ATTORNEY-CLIENT PRIVILEGED
COMMUNICATIONS
, AS PRIVILEGED WORK PRODUCT, AS COMMUNICATIONS
RELATED TO A THREATENED OR PENDING LEGAL OR ADMINISTRATIVE
ACTION
, OR AS MATERIALS RELATED TO PERSONNEL OR REGULATORY
INVESTIGATIONS BY THE EMPLOYER
;
(III) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
CURRENT OR PROSPECTIVE CONTRACTOR
, VENDOR, GRANTEE OR AS PART OF
A PUBLIC
-PRIVATE PARTNERSHIP, OR ENTITY WORKING WITH THE STATE AS
PART OF AN ECONOMIC DEVELOPMENT ACTIVITY
;
PAGE 14-SENATE BILL 23-053 (IV) TRADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY AN
EMPLOYER
'S CURRENT OR PROSPECTIVE CUSTOMER , CONTRACTOR, LESSEE,
LESSOR, BUSINESS PARTNER, OR AFFILIATE;
(V) T
RADE SECRETS OR OTHER CONFIDENTIAL OR SENSITIVE
INFORMATION PROVIDED TO OR MADE ACCESSIBLE TO THE EMPLOYEE BY A
PURCHASER OR SELLER OF PROPERTY THAT IS ENGAGED IN NEGOTIATIONS OR
UNDER CONTRACT WITH THE EMPLOYER
;
(VI) I
NFORMATION BEARING ON THE SPECIALIZED DETAILS OF
SECURITY ARRANGEMENTS OR CRIMINAL INVESTIGATIONS INCLUDING FOR
ELECTED OFFICIALS OR OTHER INDIVIDUALS
, PHYSICAL INFRASTRUCTURE, OR
CYBERSECURITY
;
(VII) I
NFORMATION DERIVED FROM COMMUNICATIONS OF THE
EMPLOYER RELATED TO THREATENED OR PENDING LEGAL OR
ADMINISTRATIVE ACTION
;
(VIII) D
ISCUSSIONS THAT OCCUR IN AN EXECUTIVE SESSION
AUTHORIZED BY SECTION
24-6-402;
(IX) T
RADE SECRETS OR INFORMATION DERIVED FROM TRADE
SECRETS OR PROPRIETARY INFORMATION OF THE EMPLOYER
;
(X) I
NFORMATION AND RECORDS NOT SUBJECT TO DISCLOSURE
UNDER THE
"COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF
TITLE
24; OR
(XI) TRADE SECRETS OWNED BY THE EMPLOYER .
(2) (a) N
EITHER A LOCAL GOVERNMENT NOR A DEPARTMENT , AN
INSTITUTION
, OR AN AGENCY OF A LOCAL GOVERNMENT SHALL TAKE ANY
MATERIALLY ADVERSE EMPLOYMENT
-RELATED ACTION, INCLUDING,
WITHOUT LIMITATION, WITHDRAWAL OF AN OFFER OF EMPLOYMENT ,
DISCHARGE, SUSPENSION, DEMOTION, DISCRIMINATION IN THE TERMS ,
CONDITIONS, OR PRIVILEGES OF EMPLOYMENT, OR OTHER ADVERSE ACTION
AGAINST AN EMPLOYEE ON THE GROUNDS THAT THE EMPLOYEE DOES NOT
ENTER INTO A CONTRACT OR AGREEMENT DEEMED TO BE AGAINST PUBLIC
POLICY AND UNENFORCEABLE UNDER SUBSECTION
(1)(b) OF THIS SECTION.
PAGE 15-SENATE BILL 23-053 THE TAKING OF SUCH A MATERIALLY ADVERSE EMPLOYMENT -RELATED
ACTION AFTER AN EMPLOYEE HAS REFUSED TO ENTER INTO SUCH A
CONTRACT OR AGREEMENT IS PRIMA FACIE EVIDENCE OF RETALIATION
.
(b) A
NY EMPLOYER WHO ENFORCES OR ATTEMPTS TO ENFORCE A
PROVISION DEEMED BY A COURT AGAINST PUBLIC POLICY AND
UNENFORCEABLE PURSUANT TO SUBSECTION
(1) OF THIS SECTION IS LIABLE
FOR THE EMPLOYEE
'S REASONABLE ATTORNEY FEES AND COSTS IN
DEFENDING AGAINST THE ACTION
.
(c) A
N ACTION TO ENFORCE A PROVISION OF THIS SECTION MUST BE
BROUGHT IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE
EMPLOYEE IS PRIMARILY EMPLOYED
.
(3) A
SETTLEMENT AGREEMENT BETWEEN AN EMPLOYER THAT IS A
LOCAL GOVERNMENT OR A DEPARTMENT
, INSTITUTION, OR AGENCY OF A
LOCAL GOVERNMENT AND AN EMPLOYEE OF THE LOCAL GOVERNMENT OR
THE DEPARTMENT
, INSTITUTION, OR AGENCY OF THE LOCAL GOVERNMENT
MUST BE SIGNED BY BOTH THE EMPLOYER AND THE EMPLOYEE
.
(4) A
NONDISCLOSURE AGREEMENT MAY NOT PROHIBIT THE RELEASE
OF INFORMATION REQUIRED TO BE RELEASED UNDER THE
"COLORADO OPEN
RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24.
(5) N
OTHING IN THIS SECTION PREVENTS AN EMPLOYER FROM
REQUIRING AN EMPLOYEE TO ENTER INTO A NONDISCLOSURE AGREEMENT
WITH A THIRD PARTY IN THE EMPLOYEE
'S OFFICIAL CAPACITY AND ON
BEHALF OF THE EMPLOYER
.
(6) A
S USED IN THIS SECTION:
(a) "C
ONDITION OF EMPLOYMENT " MEANS AN
EMPLOYMENT
-RELATED POLICY, PRACTICE, REQUIREMENT, OR RESTRICTION
DICTATED BY AN EMPLOYER THAT AN INDIVIDUAL MUST AGREE TO ABIDE BY
IN ORDER TO BE HIRED BY OR RETAIN EMPLOYMENT WITH THE EMPLOYER
.
(b) "E
MPLOYEE" MEANS AN APPLICANT FOR EMPLOYMENT WITH OR
CURRENT OR PAST EMPLOYEE OF A LOCAL GOVERNMENT OR A DEPARTMENT
,
INSTITUTION, OR AGENCY OF A LOCAL GOVERNMENT .
PAGE 16-SENATE BILL 23-053 (c) "LOCAL GOVERNMENT " MEANS A STATUTORY OR HOME RULE
COUNTY
, A CITY AND COUNTY , OR A STATUTORY OR HOME RULE
MUNICIPALITY
.
SECTION 5. 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 2024 and, in such case, will take effect on
the date of the official declaration of the vote thereon by the governor.
PAGE 17-SENATE BILL 23-053 (2) This act applies to contracts and agreements entered into,
renewed, modified, or amended on or after the applicable effective date of
this act.
____________________________ ____________________________
Steve Fenberg Julie McCluskie
PRESIDENT OF SPEAKER OF THE HOUSE
THE SENATE OF REPRESENTATIVES
____________________________ ____________________________
Cindi L. Markwell Robin Jones
SECRETARY OF CHIEF CLERK OF THE HOUSE
THE SENATE OF REPRESENTATIVES
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 18-SENATE BILL 23-053