Public workers exercising free speech protected under new Colorado law
(Colorado Newsline) In February, Wendy Boylard met with her boss at the University of Colorado Denver to negotiate a promotion pay raise.
The associate professor has been vocal in her support for non-tenure track faculty and public with her union involvement on the steering committee of United Campus Workers Colorado, the union for CU campuses. The topic of the meeting was her compensation, but that other work slipped in.
“They said, and I quote, ‘I don’t think a unionized faculty is ultimately a good idea,’” Boylard said.
She said her boss ended up not negotiating her pay raise.
“And I have to wonder if any of this is related to my advocacy,” she said. “But now, I feel like I have some sort of umbrella protection.”
A new Colorado law prohibits employers from retaliating against public workers who speak up about their working conditions, participate in the political process outside of working hours, and organize or join an employee organization.
Senate Bill 23-111 gives people who work in the public sectors — such as those within certain counties, municipalities, fire authorities, school districts, University of Colorado hospital authority, Denver health and hospital authority and the General Assembly — the same rights and protections that people in the private sector have enjoyed for decades under the Colorado Labor Peace Act.
Public employers can’t fire, discipline or retaliate against an employee who testifies on a bill at the Capitol, for example, or someone who joins a union. It does not require employers to recognize or negotiate with unions.
“It is vital that workers, the people who toil and put in their blood, sweat and tears into their labor, have the ability to talk with the colleagues about their work. When the government as the employer comes in and retaliates, it’s flatly unacceptable,” Rep. Steven Woodrow, a Denver Democrat and one of the bill’s sponsors, said.
The law, which Gov. Jared Polis signed earlier this month, sets up a system where the Colorado Department of Labor and Employment would enforce violations of those workers’ rights. Parties could also appeal CDLE’s decision to the Colorado Court of Appeals.
Previously, public workers in Colorado who felt they were retaliated against in the workplace for their speech or activity had one recourse option: filing a federal First Amendment complaint, a timely, complicated and expensive endeavor that is likely out of reach for most people.
“This is not an overarching, excessively aggressive bill. Really, it’s a simple step of dispute resolution,” bill sponsor Sen. Robert Rodriguez, a Denver Democrat, said. “If an employee wants to talk about workplace issues, they shouldn’t be threatened or fired.”
The bill passed both chambers with Democratic support, with Sen. Rachel Zenzinger the only Democrat opposed.
It follows a change to state law last year that gave employees in large Colorado counties the right to unionize and collectively bargain. That effort initially included a larger portion of public-sector workers, but it was pared down during the legislative process.
“It shows testament to workers’ power on the rise,” said Jade Kelly, president of Communications Workers of America 7799, a coalition of several unions across Colorado, about the passage of SB-111. “We were organized, testifying in committees and making sure that workers’ voices were heard at the Capitol in a concentrated, meaningful way.”
The bill is personal for Kelly as well. She said that she requested a gender neutral bathroom several years ago at her University of Colorado Boulder job, but she was told that accommodation would be a security threat. Kelly, who is a transgender woman, spoke with her coworkers and they started organizing, only to be told by leadership that the group could be fired for taking action.
“That is absolutely abhorrent and shows exactly why we need the right to organize and to address these issues collectively. When we don’t have those protections to organize, especially as these issues come up in our workplaces, it can really create a chilling effect,” she said.
“That retaliation is often not felt equally. Queer workers, workers of color, women, mothers, parents — all tend to feel retaliation a lot harder in the workplace,” she said.
The bill faced opposition from some of the same groups that were against last year’s county employee bill, including Colorado Municipal League and Colorado Counties Inc. In its letter urging Polis to veto the bill, CML, CCI and the Special Districts Association of Colorado wrote that the bill was broad, ambiguous and seeks to “politicize personnel and management issues.”
They also argued that government employees already have protections under federal and state constitutions and laws.
“Those protections also recognize legitimate employer interests in managing employees and responding to employee misconduct. SB23-111 greatly diminishes the public employer’s ability to manage employees to preserve their ability to provide prompt, effective services. By carelessly disrupting the balances inherent in existing protections, the bill ultimately works against the public interest,” the letter reads.
In his signing statement, Polis acknowledged some of those concerns by giving specific direction to CDLE on its rulemaking for the law. That includes forming rules that make sure the protected speech of public employees doesn’t impair the employer’s obligations; articulate the time, place and manner for protected activities; and recognize that public employees need to maintain a professional relationship with the people they serve.
“Governmental entities need time to adjust, and we should allow time for these policies to take effect, be sure these changes do not have unintended consequences, and then assess whether we have achieved, as I believe we may have, the proper balance in public employment policy,” Polis wrote.
That didn’t placate the opposition, however.
“The time to ‘clarify’ SB 111 was during the legislative session,” CML Executive Director Kevin Bommer said in a statement. “Punting the responsibility to a state agency to determine local employment relations and management decisions gives little assurance to local leaders.”
Polis also wrote that additional legislation to codify the protections outlined in SB-111 is likely needed. Sponsors said they are open to continuing that conversation.
“Conceptually, we’re not here to tie the hands of any employer,” Woodrow said. “We’re here to find the correct balance of free speech and the ability for workers to organize with the ability of our departments to function and do their jobs. We understand that the governor is interested in finding that balance too.”