In 2023, the Colorado Legislature passed the Protections for Public Workers Act (PROPWA), which grants rights to expressive and concerted activity similar to Section 7 of the National Labor Relations Act (NLRA) to certain state and local public employees.
However, PROPWA stops short of requiring collective bargaining or recognition of an employee organization. Nearly a year after the original bill passed, the Colorado Legislature passed SB24-232 in May 2024, clarifying certain definitions and standards related to public employee rights and the authority of a public employer to limit such rights consistent with PROPWA.
Under the law, the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (Division) is responsible for publishing regulations to enforce the statute. In October 2023, the Division published proposed rules for PROPWA, followed by the final rules in February 2024.
Clarified Definitions
SB24-232, which takes effect August 7, 2024, clarifies PROPWA’s existing definitions of “employee organizations” and “public employees.”
Under PROPWA, an employee organization was originally defined as “an organization independent of the employer in which public employees may participate and that exists for the purpose, in whole or in part, of acting on behalf of and for the benefit of the public employees concerning public employee grievances, labor disputes, wages, hours, and other terms and conditions of employment.”
SB24-232 clarifies the definition to expressly exclude “an organization, including a committee, advisory council, or other similar group, that includes public employees but is created by a public employee's employer.” The amended definition clarifies that PROPWA does not restrict employer creation or control of the sorts of internal, often advisory, employee councils or committees that can enhance (not lower) employee engagement and influence in the organization.
SB24-232 also amends the definition of public employee to include two types of employees: “confidential public employee” and “managerial public employee.” Under the bill, these public employees are excluded from the protections provided under PROPWA for engaging in protected concerted activity.
A "confidential public employee" is defined as a public employee who:
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Develops or presents the positions of the employer with respect to employer-employee relations, contributes significantly to the employer's decision-making in connection with such positions, or accesses confidential information, including the employer's non-public planning or strategy information, in connection with the development, presentation, or decision-making of the employer's positions with respect to employer-employee relations; or
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Provides legal advice to the employer as the employer's attorney related to PROPWA or other labor relations matters.
A "managerial public employee" is defined as an executive-level public employee with significant decision-making authority, including the authority to develop employer policies or programs or administer an agency or other subdivision of the employer. However, non-policymaking employees, even if they oversee, manage, or direct other employees, do not fall within the managerial public employee definition.
Material Disruption of Duties Not Protected
SB24-232 also modifies the scope and applicability of a public employer's authority to limit the rights of public employees in certain circumstances. Specifically, activity by a public employee or group of public employees that results in: (a) material disruption of a public employee's duties, (b) a public employer's operations, or (c) the delivery of public services is not considered protected activity under PROPWA. However, an employer’s or other individual's disagreement with the content or viewpoint expressed through an employee's activity or a strike by employees does not constitute material disruption and could be considered protected activity. The Division has provided several examples of both protected and unprotected conduct in its Interpretive Notice & Formal Opinion (INFO #15C).
The enactment of PROPWA was a significant legislative measure aimed at enhancing labor protections for public employees in the state. The legislature and Division continue to refine the law and regulations to create the regulatory framework for enforcement and implementation. For questions on how PROPWA may impact your organization, please contact Employers Council’s Labor Relations department.
Drew Hintze is an attorney for Employers Council.