Starting July 1, thousands of Colorado public employees will see a change to their labor rights. The Protections for Public Workers Act, signed into law on June 6, 2023, outlined the new rights afforded to many public workers across Colorado. The Divisions of Labor Standards and Statistics adopted the new rules on Feb. 2 and soon they will be tasked with enforcing them.
Steve Baumann, a shareholder at Littler, said the push to make these rule changes began in 2020 as a way to fill in the state-level gaps of the National Labor Relations Act.
The first bill, passed in the same year, was the Colorado Partnership for Quality Jobs and Services Act. Baumann said that bill addressed state-level employees within the state personnel system.
“That really expanded who could be subject to what I’m going to call NLRA-like rights, because it’s not quite the same, it’s its own state created initiative,” said Baummann. “But that was sort of the first time we saw Colorado step in and give rights to folks that were outside the National Labor Relations Act.”
That legislation was followed by the 2022 Collective Bargaining for Counties Act, which gave new labor rights to public employees of a county with a population of more than 7,500.
“So now counties could be organized and have certain rights similar to the National Labor Relations Act,” said Baumann. “But that still left out this big group of political subdivisions, so all the local government entities that you would think of — counties and municipalities not covered by the act, school districts, hospitals, public colleges and universities, library districts, fire authorities, all those sort of entities that weren’t covered by either of the two and not covered by the National Labor Relations Act.”
Soon, PROPWA will cover these employees. The rights afforded by the new rules are similar to those found in Section 7 of the NLRA, Baumann told Law Week.
Public employees covered by PROPWA will have the right to engage in speech on employee representation, workplace issues or PROPWA rights; concerted activity for mutual aid or protection; political participation while off duty and not in uniform; organizing, forming, joining or assisting an employee organization, or refraining from doing so; and exercising any rights under PROPWA, including but not limited to complaining, testifying or otherwise submitting evidence or information about, or opposing what the employee believes to be a violation of PROPWA, according to the published rules.
But there are limits to the rules. Baumann said the act was very clear in stopping short of forcing recognition of any employee organization.
“They can’t have an election, they can’t force collective bargaining,” said Baumann. “But at the same time, they can come together and say we are coming together as the workers of X to demand Y. And if we then fire all of those folks, that is now protected and illegal under PROPWA in a way that it wasn’t before.”
On the concerted activity front, Baumann said the Division of Labor Standards and Statistics will likely borrow heavily from the National Labor Relations Board’s interpretation on that type of activity.
“There’s a whole body of case law on what protected concerted activity is and its limits and those sorts of things,” said Baumann. “And it’s very easy for the state to say, ‘well, we have this body of law, why wouldn’t we rely on it, because the NLRB has been doing this for nearly 100 years.”
When it comes to expressive activity, the disqualifier for protected activity comes when activity “materially impairs significant interests.” Baumann gave a hypothetical of when the impact to interests would outweigh the protected activity.
“Say you have someone who’s on a police department engaging in expressive activity, but sharing victim information, that would likely outweigh the right to engage in the expressive activity because of the harm to the victim, or in a healthcare setting, someone who’s revealing patient information would likely outweigh what the expressive activity could do.”
The rules also lay out the process of filing a complaint and the division’s investigation process. If the division finds a public employer fell afoul of the PROPWA rules, the division can offer remedy, including damages to compensate losses caused by the unfair labor practice, reinstatement and orders to cease and remedy violations.
Baumann noted that some of the remedies found in the rules were surprising.
“I don’t want to use the word excessive, but they’re greater than what you would have gotten under the National Labor Relations Act, and they’re greater than some other provisions of Colorado Law.”