On April 13, 2017, Governor Hickenlooper signed the Wage Theft Transparency Act into law, which is effective immediately. The Act makes “wage theft” violations in Colorado, including nonpayment of wages or overtime compensation, public record and subject to records requests under the Colorado Open Records Act.
The Act clarifies that information obtained by the Colorado Department of Labor and Employment (CDLE), relating to a finding by the CDLE that an employer violated Colorado’s wage laws, is not confidential and shall be released to the public or made available for use in a court proceeding, unless the director of the division makes a determination that the information includes specific information that is a trade secret.
Prior to the passage of the Act, Colorado law prohibited the release of such information on the basis that it could reveal a trade secret. The Act, however, requires that the requested information be made public unless the CDLE determines it includes specific trade secret information. Before releasing information relating to a wage law violation, the CDLE is required to notify the employer of the potential release. The employer then has 20 days to provide the CDLE with documentation that the information, or specific matters included in the information, constitutes a trade secret. If the Executive Director of the CDLE determines the information is a trade secret under the Colorado Uniform Trade Secrets Act, it must treat the information as confidential and not subject to a records request. If the information is not deemed a trade secret, however, it becomes public record and may be available to business competitors, job applicants, and others.
In 2016, the CDLE issued 274 wage-and-hour citations. As most companies and employers do not violate Colorado’s wage laws, a stated purpose of the Act is to help businesses that are competing with companies that consistently violate Colorado’s wage laws.
While the Act changes nothing in Colorado’s substantive wage and hour laws, now is a good time for employers to revisit their practices and policies to ensure they are in compliance with Colorado and federal law to avoid any possibility that violations may become public record in the future.
Austin Smith is the Managing Shareholder of Ogletree Deakins’ Denver office, and he has devoted his career to advising and counseling employers on issues affecting their relationship with their employees. From questions about compliance with state and federal wage and hour laws and regulations to drafting effective policies to prevent discrimination, harassment, and violence in the workplace, as well as assisting employers in navigating complex drug testing-related concerns, Austin has...
Steve Reid counsels and represents employers in a broad range of labor and employment matters arising under federal and state laws. Steve graduated from the University of Denver Sturm College of Law, where he was inducted into the Order of St. Ives. During law school, he served on the Denver University Law Review and competed in the annual Wagner National Labor & Employment Law Moot Court Competition. As a law student, Steve also interned in the appellate division of a local district...