On June 6, 2023, Colorado Governor Jared Polis enacted a significant change to Colorado law when he signed the Protections for Public Workers Act.  The Act establishes rights for employees at Colorado hospitals, universities, public schools, special districts, and numerous other quasi-governmental entities to engage in activities similar to those protected under Section 7 of the federal National Labor Relations Act.  Since the enactment of the NLRA in 1935, such rights have not been available to employees of any “State or political subdivision.”¹  Indeed, attempts by labor organizations to organize these political subdivisions have largely faltered for precisely this reason. 

Now, effective August 7, 2023, employees of these political subdivisions will have the right to:

• Engage in protected, concerted activity for the purpose of mutual aid or protection;
• Organize, form, join, or assist an employee organization (or refrain from doing so);
• Speak with members of the employer’s governing body on terms and conditions of employment; and
• Discuss or express views regarding public employee representation, workplace issues, or other rights conferred by the Act.

As a result, Colorado has not only applied Section 7 of the NLRA to political subdivisions, but also has expanded those rights in several significant ways.

NLRA + Colorado Collective Bargaining Bills = Colorado’s Unique Protections for Political Subdivisions

Those familiar with Section 7 of the NLRA know that it provides to all covered employees, union or non-union, the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.”² 

But the NLRA does not apply to employees of any “State or political division,” who had no such rights since the NLRA’s enactment since 1935.  The same was true of Colorado’s state-level equivalent of the NLRA, the Colorado Labor Peace Act, which also did not apply to the state or political subdivisions.³   

Since 2020, however, Colorado has legislatively filled those gaps.  Amid the COVID-19 pandemic, Colorado enacted the 2020 Partnership for Quality Jobs and Services Act, which gave certain rights to State of Colorado employees subject to the State Personnel System in Section 13 of Article XII of the State Constitution.⁴  This act included not only rights similar to those articulated in Section 7 of the NLRA, but also the right to have an election for representation by a labor organization and the right to collectively bargain with the State.  Then, in 2022, the Collective Bargaining for Counties Act gave those same rights to county employees (provided the county was not a city and county, like Denver, or the county did not have a population of less than 7,500).⁵    

Now, the Act has expanded similar rights to employees of “political subdivisions,” including

• Counties and municipalities not covered by the previous acts;
• Hospitals whose enabling statutes confers political subdivision status, such as Denver Health and Hospital Authority;
• Public colleges and universities;
• School districts;
• Charter schools;
• Library districts;
• Fire authorities;
• Special districts, such as ambulance, fire protection, health service, park and recreation, sanitation, and water; and
• Public defenders’ offices.⁶

Some of these employees, such as police officers and firefighters, previously had limited and specific statutory rights to meet and confer with their employer.⁷  Some public entities also recognized collectively bargaining agreements with employees, but as a matter of contract law rather than any statutory right to engage in protected concerted activity or collectively bargain the terms and conditions of the workplace.⁸  

Under the new Act, employees of the political subdivisions listed about now have similar rights to those provided under Section 7 of the NLRA, the 2020 Partnership for Quality Jobs and Services Act, 2022, the Collective Bargaining for Counties Act.  Political subdivisions may not interfere or take adverse employment action when employees exercise certain rights related to organization. These rights include:

• Discussing or expressing views regarding public employee representation, workplace issues, or rights conferred by this new Act;
• Engaging in protected, concerted activity for the purpose of mutual aid or protection;
• Speaking with members of the political subdivision’s governing body on terms and conditions of employment; and
• Organizing, forming, joining, or assisting an employee organization (or refraining from doing so).

Even so, there is one critical difference between the new Act on the one hand, and Section 7 and the previous acts on the other hand.  The new Act is clear: “Nothing in this [Act] shall be construed to mean the right or obligation to recognize or to negotiate a collective bargaining agreement.”⁹  As a result, although employees of political subdivisions may engage in protected concerted activity similar to their private sector counterparts, and they now have rights and remedies for such activity, there is: (1) no procedure for a representation election; (2) no obligation of the employer to recognize any labor organization for purposes of collective bargaining; and (3) no obligation to collectively bargaining the terms and conditions of employment.    

As a result, the new Act stops short of Section 7 of the NLRA, the 2020 Partnership for Quality Jobs and Services Act, and the 2022 Collective Bargaining for Counties Act.  But with these new rights, employers can expect to see a rise in employee complaints and filings based on the new Act.  The future may also reveal an amended Act that provides the right to representation elections and collective bargaining obligations, and employers would be wise to address those issues now.

The New Act Goes Beyond Even Prior Enactments to Protect Political Activities by Employees of Political Subdivisions

The new Act also goes beyond traditional rights to engage in protected concerted activity to establish additional rights for employees of political subdivisions to “fully” participate in the political process while off duty and not in uniform. This includes:

• Speaking with members of the political subdivision’s governing body about matters of public concern; and
• “Engaging in other political activities in the same manner as other citizens of Colorado.”

These rights are not without limit, however.  The new Act allows political subdivisions to “limit the rights of an employee . . . to the extent necessary to maintain the nonpartisan role of the employer.”  Of course, this limitation also echoes long-standing First Amendment law applicable to public employers under Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

The new provision appears to be an attempt to apply an oft-overlooked provision of the Colorado Labor Peace Act, section 8-2-102, which prohibits employers subject to the Labor Peace Act from preventing employees from “forming, joining, or belonging to any lawful labor organization, union, society, or political party.”  Even still, Colorado’s lawful off-duty activity statute, applicable to all “citizens of Colorado,” has long prohibited adverse action against an employee for the employee’s lawful conduct outside of work hours and off the premises of the employer.¹⁰

As a result, while the new Act goes beyond prior Acts to afford additional rights to employees of political subdivisions, the impact of that expansion on existing law is not immediately apparent.

Rights without Remedies?

Beyond establishing these significantly expanded rights, the Act makes it unlawful for covered employers to:

• Discriminate against, coerce, intimidate, interfere with, or impose reprisals against, or threaten to do so, for any public employee engaging in the rights provided;
• Discharge or discriminate against a public employee for filing an affidavit, petition, or complaint, or give any information or testimony protected by the Act;
• Discharge or discriminate against a public employee for forming, joining, assisting, or choosing to be represented by an employee organization; or
• Dominate or interfere in the administration of an employee organization.

As a result, the new Act largely mirrors Section 8 of the NLRA.  Yet, unlike other recent Colorado enactments, the effect of a violation is not immediately clear.  Rather, the new Act delegates to the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”), to determine via rulemaking the applicable remedies. 

If recent rulemaking is any guide, however, there could be stiff penalties for violations.  Rule 6.3.9 of the Division’s Labor Peace and Industrial Relations Rules effective July 1, 2023, provides for the following remedies:

• Reinstatement of an employee with or without pay, as deemed appropriate;
• Orders to cease the unfair labor practice, effectuate compliance by modifying or rescinding existing policies, practices, or agreements, and/or otherwise redress direct or indirect consequences of unfair labor practices;
• Periodic reports showing compliance with the orders;
• Suspension of rights, immunities, privileges, or remedies granted or afforded by the Labor Peace Act for one year; and
• Any other remedies or relief authorized by law, including but not limited to C.R.S. Title 8, Articles 1 (the Industrial Claims Appeals Office enabling statute), 3, 4 (the Colorado Wage Claim Act), 6 (the Minimum Wages of Workers Act), and 13.5 (the Workplace Accommodations and Protections Act).

Of course, many of the statutes referenced in the final bullet provide for backpay, attorneys’ fees, and potential penalties.  If rulemaking on the new Act follows the recent trend, employers should be aware of the risks associated with possible violations given the possible breadth of liability.

Note, however, that the Division may not adjudicate such claims until July 1, 2024, under Section 4 of the Act.  There is also no private right of action in court or any forum beyond the Division.¹¹ 

Conclusion

The Protections for Public Workers Act represents a significant change to the law for public employees, and manifests yet another step in broadening Colorado public employees’ rights to engage in concerted activity.  Before the August 7, 2023 effective date, affected employers should consider:

• Training supervisors and human resources professionals on the rights and obligations under the new Act;
• Carefully reviewing policies to ensure broadly applicable policies do not encroach on the new rights; and
• Connecting with experienced labor counsel when confronted with possible protected activity to determine an appropriate, risk-adjusted, approach.

*Mary Mathews is a summer associate in Littler’s Denver office.