All Employers with CO Employees
May 31, 2022 and June 7, 2022
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Two laws significantly expanded whistleblower protections with the close of the Colorado legislative session.
SB 22-097: Health and Safety Whistleblower Law
The Colorado Public Health Emergency Whistleblower Law (PHEW) is now the Health and Safety Whistleblower Law (HSWL). SB 22-097 amended the PHEW and went into effect on May 31, 2022. The PHEW originally limited whistleblower protections by requiring reports of workplace health and safety violations or threats be related to a public health emergency. Now, the bill removed the public health emergency requirement. This change creates broad protection for any reasonable health and safety concern, perceived violations, or threats to health or safety. It protects those who: 1) raise concerns about perceived health threats or violations; 2) oppose conduct made unlawful by the HSWL; or 3) participate in protected activity under the HSWL. Employers should note passing remarks, messages to coworkers, or public social media postings may implicate the bill’s protections.
As a reminder to Colorado employers, the following two protections have not been affected by the amendment:
- Independent contractors are also protected by the law if they contract with an entity that has five or more independent contractors in Colorado each year.
- Contracts, agreements, and policies related to workplace speech about health and safety practices are prohibited. Employers cannot limit or prevent a worker from disclosing workplace health and safety practices.
HB 22-119: Colorado False Claims Act
The Colorado False Claims Act (CFCA) went into effect on June 7, 2022 and is a much broader state counterpart of the federal False Claims Act. The CFCA expands the traditional definition of claims, the protected entities to which false claims can be made, and protections for whistleblowers raising concerns with false claims.
The CFCA anti-retaliation provisions protect employees when they: 1) conduct or assist in an investigation, testify, or file an action based on a reasonable belief of potential violation; 2) meet with retained counsel or the government about a matter filed or to be filed; 3) provide counsel or government with “confidential information”; or 4) file an action under the CFCA. Employers should note the reference to confidential information. Under the CFCA, employees can engage in self-help and provide information to their own retained counsel, to the state, or to any person with whom they have a statutory or common law privilege (for example, a spouse, physician, accountant, or psychotherapist), that they otherwise have a fiduciary duty to hold confidential. This includes emails, medical records, financial records, trade secrets, intellectual property, and any other information subject to an employment agreement, confidentiality agreement, or nondisclosure agreement.
The CFCA provides a private right of action to employees retaliated against in any manner for engaging in protected activity. Employees may be eligible to twice the amount of back pay, interest on back pay, special damages, and attorneys’ fees and costs. Additionally, an employee subject to a lawsuit from an employer for individual acts later determined to be lawful also has a private right of action against their employer.
- Review the PHEW here and the CFCA here.
- Review and revise existing policies and procedures for making protected reports or complaints regarding health and safety concerns and false claims violations.
- Have appropriate personnel trained on how to respond to protected reports or complaints.
- Consult with legal counsel before taking any adverse employment action against an employee who has filed a protected report or complaint.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase