A Rocky Mountain Remix For Protected Concerted Activity: Colorado Adopts Rules For The Protections Of Public Workers Act, Creating NLRA Section 7-Like Rights And Remedies

• Published date: 20 March 2024
• Law Firm: Littler Mendelson
• Author: Ms Maria Malaver-Reyes and Stephen Baumann II

• Colorado agency issues rules governing the Protections for Public Workers Act (PROPWA), which provides Section 7-type rights to certain Colorado public employees.
• The rules, which clarify protected activity, reserve certain public employer rights, and establish enforcement mechanisms, take effect July 1, 2024.

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...