2023 Colorado Revised Statutes › Title 22 - EDUCATION (§§ 22-1-101 — 22-108-109) › GENERAL AND ADMINISTRATIVE (§§ 22-1-101 — 22-16-112) › Article 1 - GENERAL PROVISIONS (§§ 22-1-101 — 22-1-147) › Section 22-1-135.5 - Nondisclosure agreements - protection of school district, board of cooperative services, and public school employees - definitions

(1)
(a)
No 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)
The 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)
Data; 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)
Trade 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)
Information 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)
Information derived from communications of the employer related to threatened or pending legal or administrative action;
(VI)
Discussions that occur in an executive session authorized by section
24-6-402
;
(VII)
Trade secrets or information derived from trade secrets or proprietary information of the employer;
(VIII)
Information 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.
(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)
The 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)
Data; 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)
Trade 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)
Information bearing on the specialized details of security arrangements or investigations, including for elected officials or other individuals, physical infrastructure, or cybersecurity;
(V)
Information derived from communications of the employer related to threatened or pending legal or administrative action;
(VI)
Discussions that occur in an executive session authorized by section
24-6-402
;
(VII)
Trade secrets or information derived from trade secrets or proprietary information of the employer;
(VIII)
Information 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)
No 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 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)
Any 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)
An 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.
(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)
Nothing 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)
As used in this section:
(a)
"Condition 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)
"Employee" 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.
Added by 2023 Ch. 320,§ 2, eff. 8/7/2023.
2023 Ch. 320, was passed without a safety clause. See Colo. Const. art. V, § 1(3).