On April 13, 2017, Governor Hickenlooper signed the Colorado Wage Theft Transparency Act (House Bill 17-1021). The law is effective immediately and makes violations of a wage law, including violations of the Colorado Wage Act, subject to disclosure under the Colorado Open Records Act. Specifically, the Colorado Department of Labor and Employment (CDLE) will treat any Notice of Citation or Notice of Assessment (issued to employers after all remedies have been exhausted) as public record and will release it to the public upon request, unless the Director makes a determination that the requested information is a trade secret.
This bill amends existing law which prohibited release of information submitted to the CDLE because it could reveal a trade secret. The new law clarifies that such information is not confidential and may be released to the public and/or for use in court proceedings, unless the CDLE determines otherwise.
The CDLE will inform employers of a Colorado Open Records Act request, and the employer will have twenty days to demonstrate that the information or some portion thereof is a trade secret. If the CDLE determines the information constitutes a trade secret, it will be treated as confidential and not be subject to release.
The bill had bipartisan support. Republican State Senator John Cooke and Democratic State Representative Jessie Danielson, the bill's sponsors, have stated the Act will promote accountability of business practices. This will be achieved by allowing applicants to discover violations of a prospective employer and allow competitors to know about chronic violators within their industry.
The Act does not create any new causes of action or sources of liability for employers, but public disclosure of violations could obviously damage an employer's reputation. Moreover, repeat or particularly egregious violations could put an employer on the radar of a plaintiff's attorney. According to the Colorado Freedom of Information Coalition, the CDLE issued 274 citations in 2016 and a total of 134 citations in just the first two months of 2017. With an uptick in citations and the risk of violations becoming public information, employers should ensure their wage and hour practices are compliant with state and federal law. Additionally, employers who receive a notice of a potential violation from the CDLE should carefully assess how to respond to it, including what information to provide to the CDLE and whether to take advantage of appeal opportunities if a violation is found.
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