7 CCR 1103-17-4 - [Effective 12/4/2024] Scope of Rights and Responsibilities under PROPWA

4.1 Protected Activity under PROPWA.

4.1.1 Types of Activities Protected. PROPWA protects public employee rights to engage in the following activities in C.R.S. §§ 29-33-104(1)(a) -(d) and -104(3) ("Section 104 activity"):

(A) speech on employee representation, workplace issues, or PROPWA rights ("Section 104(1)(a) activity");

(B) concerted activity for mutual aid or protection ("Section 104(1)(b) activity");

(C) 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");

(D) organizing, forming, joining, or assisting an employee organization, or refraining from doing so ("Section 104(1)(d) activity"); and

(E) 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 collectively are "PROPWA expressive activity"; Section 104(1)(b) and 104(1)(d) activities collectively are "PROPWA concerted activity."

4.1.2 When Multiple Sections Apply. If activity may or is alleged to qualify under multiple of Sections 104(1)(a)-(d) or 104(3), or any other Section of any applicable law (constitutional, statutory, or regulatory), then it shall be analyzed separately under each Section as to scope of protection, defenses, and other matters.

4.1.3 Applicability of Other Law. Any enumeration in PROPWA or in these Rules of rights, responsibilities, or limits thereupon is not intended to deny, modify, or limit other rights or responsibilities under any other source of law (constitutional, statutory, or regulatory) that may apply to situations also covered by PROPWA.

4.2 PROPWA Expressive Activity: Scope and limits (Section 104(1)(a) and (c) activity).

4.2.1 Disruptive Activity.

(A) Expressive activity is protected unless the employer shows that (2) outweighs (1):

(1) the degree to which the activity is of -

(a) a protected matter - e.g., matters of public concern or work conditions, and

(b) a protected type - e.g., public participation, labor advocacy, or whistleblowing; and

(2) the degree to which the activity materially impairs significant interests, such as -

(a) that a public employer must be able to deliver public services, maintain legally required confidentiality, or otherwise fulfill its obligations,

(b) that a governing body (boards, commissions, etc.) must maintain relationships of trust with their policy-level and confidential employees, and

(c) that a public employee must maintain professional relationships required to perform their duties.

(B) Disagreement with the content of the activity, or viewpoint of the employee, cannot be a reason for activity to lose protection.

4.2.2 Official Duties. PROPWA expressive activity shall not be protected if it is pursuant to or part of duties that the public employee either:

(A) is paid by their public employer to perform; or

(B) otherwise has a responsibility to perform under a directive from their public employer.

4.2.3 Restrictions on the Time, Place, and Manner of Expressive Activity.

(A)In a place that qualifies as a public forum. A place qualifies as a "public forum" open for expressive activity by the public, including by public employees, if it has been traditionally open to such activity, or was opened for such activity by a public entity. In a public forum, expressive activity is unprotected if the activity is contrary to a limitation on the time, place, or manner of such activity:

(1) that is set and enforced on a content-neutral and viewpoint-neutral basis;

(2) that is narrowly tailored to serve a significant governmental interest; and

(3) that leaves open ample alternative channels for the activity that are known and available to the public employee.

(B)In other places. Expressive activity in places other than a public forum is unprotected if it is contrary to a limitation on the time, place, or manner of such activity:

(1) that is reasonable in light of the purposes of the forum; and

(2) that is viewpoint-neutral.

4.2.4 Restrictions on Political Participation. Section 104(1)(c) activity (political participation) shall not be protected if the activity is contrary to the duties that qualify the individual as a policy-level employee.

4.3 PROPWA Concerted Activity: Scope and Limits (Section 104(1)(b) and (d) activity).

4.3.1 Scope of Concerted Activity Protected. "Concerted activity" is activity by one or more public employees for the purpose of mutual aid or protection (irrespective of any subjective motivations of the employee), among employees of the same or another employer.

4.3.2 Limits on Protection Based on the Nature of the Activity.

(A) Concerted activity is protected unless the employer shows that (2) outweighs (1):

(1) the degree to which the concerted activity is related to protected subject matter (see Rule 4.3.1), including whether and to what extent any allegedly improper employee conduct is attenuated from that subject matter; and

(2) the degree to which the activity materially impairs employer ability to deliver public services, maintain legally required confidentiality, or otherwise fulfill its obligations, based on factors such as the:

(a) extent to which the location of the activity disrupts delivery of services by the public employer;

(b) nature of the employee's conduct during the concerted activity, including whether it violates an applicable workplace right (e.g., discrimination or harassment) or responsibility (e.g., legal duty) of confidentiality, and whether and to what extent any allegedly improper conduct may have been provoked; and

(c) extent to which the activity is inconsistent with the employee's fulfillment of duties that qualify an individual as a confidential or policy-level employee.

(B)Disagreement with the content of the activity, or viewpoint of the employee, cannot be a reason for activity to lose protection.

(C)Concerted activity of solicitation, or distribution of written materials, related to an employee organization may be restricted during any working time (e.g., interacting directly with customers) if the restriction does not discriminate or retaliate against, or interfere with, the activity (as set forth in Rules 4.4.1-4.4.2).

4.4 Management Rights: Scope and Limits.

4.4.1 Permissible Employer Actions. Even if a public employee did or may engage in PROPWA protected activity, adverse action - termination, discipline, or other action that may deter protected activity - is not unlawful under PROPWA if it is not imposed (or disproportionately imposed) in whole or in part to discriminate against, interfere with, or otherwise deter protected activity.

4.4.2 Impermissible Interference or Retaliation. A public employer rule, policy, or action shall not:

(A) impermissibly interfere with or retaliate against protected activity, including if it was enacted or enforced in response to protected activity as a way to interfere with or retaliate against such activity; or

(B) be overly broad or vague in a way that may be reasonably understood as impermissibly interfering with or retaliating against protected activity, when read by a public employee dependent upon their job who acts reasonably, and in good faith, in interpreting the potential restriction in light of factors such as past practice, the nature of the workplace, and the field of work.

4.4.3 Employer Expressive Activity. Public employers may express views, including engaging in conversations, with public employees about the advantages and disadvantages of employee organizations and collective bargaining. In doing so, such expression:

(A) may include general views on employee organizations, or predictions of the effects of unionization on the employer, to the extent such predictions have a basis in objective fact as demonstrably probable consequences beyond employer control; but

(B) may not include or be accompanied by actions reasonably tending to discriminate against, interfere with, or otherwise deter protected activity, such as an economic (or other) threat of the employer's own volition, a promise of a benefit for foregoing or causing others to forego protected activity, or creating an impression of surveillance - whether or not protected activity is actually interfered with, deterred, or surveilled.

Notes

7 CCR 1103-17-4

47 CR 05, March 10, 2024, effective 7/1/2024 47 CR 17, September 10, 2024, effective 8/7/2024, exp. 12/4/2024 (Emergency)