On February 26, 2024, the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”) adopted final rules for the Protections for Public Workers Act (PROPWA). As previously discussed, PROPWA grants rights similar to Section 7 of the National Labor Relations Act (NLRA) to certain public employees in Colorado. But, as noted previously, PROPWA also goes beyond traditional rights protected under the NLRA to cover certain public employees participating in the political process while off duty and not in uniform. 

Pursuant to PROPWA, the Division’s final rules clarify protected activity, reserve certain public employer rights, and establish enforcement mechanisms.  The rules become effective July 1, 2024.

PROPWA Coverage

Briefly, PROPWA now covers almost all state or local government employees, except:¹

• State employees employed through the personnel system of the state;
• County employees covered by the Collective Bargaining by County Employees Act; and
• Mass transportation employees covered by the Labor Peace Act.

Public Employee Rights

The PROPWA rules clarify the activities protected by PROPWA, including the limits on the otherwise very broad protections in PROPWA.

For example, Rule 4.1 clarifies that PROPWA protects “Section 104 activity,” which includes:

• speech on employee representation, workplace issues, or PROPWA rights (“Section 104(1)(a) activity”);
• concerted activity for mutual aid or protection (“Section 104(1)(b) activity”);
• political participation while off duty and not in uniform, including (i) speech with the public employer’s governing body (or any of its members) on work terms and conditions or matters of public concern, and (ii) political activity of other kinds in the same manner as other Coloradans (“Section 104(1)(c) activity”);
• organizing, forming, joining, or assisting an employee organization, or refraining from doing so (“Section 104(1)(d) activity”); and
• exercising any rights under PROPWA, including but not limited to complaining, testifying or otherwise submitting evidence or information about, or opposing (verbally or in writing) what the employee believes, reasonably and in good faith, to be a violation of PROPWA (“Section 104(3) activity”).

Section 104(1)(a) and 104(1)(c) activities are “PROPWA expressive activity.” 

Section 104(1)(b) and 104(1)(d) activities are “PROPWA concerted activity.”²

Expressive Activity

Expressive activity is classified as either (1) speech on employee representation, workplace issues, or PROPWA rights; or (2) political participation while off duty and not in uniform.³

Similar to applicable First Amendment protections for public employees, the PROPWA rules clarify that public employees are protected when speaking about public issues with members of their employer’s governing body or engaging in other political activities in the same manner as other Coloradans, so long as off duty and not in uniform.  Such rights also echo Colorado’s lawful off-duty activities statute, section 24-34-402.5, C.R.S. 

The PROPWA rules also include important limitations for expressive activity.⁴ The PROPWA rules specifically codify a balancing test, through which expressive activity will be protected unless its protected nature is outweighed by material impairment of significant interests of the employer, for reasons other than disagreement with the activity itself.⁵  These limits are related to the differential treatment of “policy-level” or “confidential employees,” who have heightened authority and access to sensitive information, and who are defined in the PROPWA rules similarly to the definition of “managerial employees” or “confidential employees” in National Labor Relations Board precedent under NLRB v. Yeshiva University, 444 U.S. 672, 682–683 (1980) and NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981).

Public employers may also implement reasonable limits on time, place, or manner of the expressive activity, consistent with First Amendment law regarding permissible restrictions on speech.⁶

Concerted Activity

Concerted activity, as under Section 7 of the NLRA, is defined to protect public employees’ ability to organize (or decline to organize) an employee organization and other activity for mutual aid or protection among employees.⁷ Of note, however, neither PROPWA nor the PROPWA rules establish a mechanism for any sort of voluntary recognition or election to establish a union as a collective bargaining representative.  In fact, public employers have the delineated right to decline to recognize or negotiate with a proposed union.⁸

Further, like expressive activity above, an employee’s concerted activity will lose its protection under PROPWA if the activity is outweighed by a disruption to operations, violates legal responsibilities (such as confidentiality responsibilities or anti-discrimination law), is carried out as part of the duties of a confidential or policy-level employee, or violates solicitation limits (such as a neutral restriction imposed by an employer on engaging in concerted activity during active working time).⁹  As a result, concerted activity is subject to a balancing of interests, and limited in ways similar to Section 7 of the NLRA^{10, 11}

PROPWA Activity

Finally, and though not specifically delineated as such, the PROPWA rules clarify the antiretaliation obligation for public employees who exercise rights under PROPWA.¹² Public employees are protected when making formal or informal, internal or external statements in support of a PROPWA violation complaint, or offering evidence in a PROPWA violation investigation.¹³ A public employee is also protected when engaging in activity such as refusing to participate in or support a PROPWA violation, or supporting someone else who refuses to participate in or support such a violation.¹⁴ 

Public Employer Rights

Despite these broad rights of public employees, Rule 4.4 of the PROPWA rules also specifically reserves “management rights” of public employers.  Among other things, public employers have an explicit right to decline to recognize or negotiate with a proposed union.¹⁵ Public employers also have a reserved right, similar to Section 8(c) of the NLRA, to express certain views that do not interfere with employee rights under PROPWA, such as expressing general views on benefits or drawbacks of unions or collective bargaining.¹⁶

Public employers may also lawfully take adverse action against a public employee who did or may engage in PROPWA protected activity, so long as the adverse action was not imposed in whole or in part to discriminate against, interfere with, or otherwise deter protected activity.¹⁷

Unfair Labor Practice Complaints and Investigations

The PROPWA rules, unlike PROPWA itself, establish procedure and remedies for alleged unfair labor practices under PROPWA.  While no private right of action exists under PROPWA, an aggrieved party may, within six months from when they knew or reasonably should have known of the PROPWA violation, file an unfair labor practice complaint with the Division.¹⁸  Such procedures mirror Section 10(b) of the NLRA.

Upon filing, the Division has discretion to determine if a complaint warrants an investigation.¹⁹ After the Division completes an investigation, the Division will issue a determination informing the parties as to whether a violation of PROPWA occurred.²⁰

If a violation is found, remedies can be severe, and similar to those available under the NLRA and the recent decision in Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022). Under the PROPWA rules, the Division may:

• Award damages to compensate losses caused by the unfair labor practice (including backpay, lost dues for an employee organization, and other direct or foreseeable pecuniary harm);
• Order reinstatement or instatement with the same seniority status the employee would have without the violation, or, if reinstatement is not feasible, front pay with benefits;
• Order the employer to cease and remedy violations and effects thereof, including by modifying or rescinding policies, practices, or agreements, and provide notice of those changes; and
• Any other relief authorized by applicable statutes.²¹

Conclusion

The PROPWA rules help clarify the limits of the broad rights established by PROPWA, and clarify the applicable remedies absent from the statute.  To ensure compliance, public employers subject to PROPWA should consider:

• Training supervisors and human resources professionals on rights and responsibilities under PROPWA;
• Carefully reviewing policies to ensure broadly applicable policies do not encroach on the rights protected by PROPWA; and
• Consulting experienced labor counsel when confronted with possible protected activity to determine an appropriate, risk-adjusted response.