Both federal and state laws govern the relationship between a public employer and its employees. Consequently, it is important for employers to have an awareness of such laws. This chapter is designed to give public employers a brief synopsis of whether the public employer-employee relationship is covered by each law and what the substance of that coverage is. Public employers are encouraged to review each specific chapter in its entirety for a comprehensive discussion of the federal and state laws affecting their relationship with their employees.
Certain public employees are excluded from the employment at-will doctrine because of statutorily-mandated systems, such as the merit system.
See Chapter 03: Recruiting and hiring, for a more in-depth discussion of at-will employment.
Just as private-sector employees are required to complete I-9 forms attesting to their authorization to work in the United States, so are Colorado’s public employees. See Chapter 05: Immigration, for a more in-depth discussion of immigration issues.
The Public Employment Relations Act (PERA) defines the collective bargaining rights and duties of public employers and public employees in Colorado. It has broad coverage, applying to virtually all public employees within the state except elected officials, supervisors, confidential employees and others.
PERA provides that public employees may organize and bargain collectively with their employers through labor organizations of their own choosing. To assure that representation by a labor organization is truly the employees’ choice, secret ballot representation elections are conducted by the Public Employment Relations Board (PERB).
To ensure that the rights of public employers, employee organizations and employees are protected and to prevent labor disputes from resulting in the disruption of services to the public, the act defines certain prohibited labor practices and provides PERB with the statutory authority to fashion appropriate remedial relief for violations of the PERA.
The PERA requires a public employer to bargain with its employees’ designated labor organization. In Colorado, the PERA provides a more limited scope of bargaining than the traditional “wages, hours and other terms and conditions of employment” applicable in the private sector under the National Labor Relations Act. As of 2021, the scope of PERA’s subjects of bargaining for general bargaining units (less than 30% public safety employees) were limited to base wages and subjects mutually agreed upon. Mandatory subjects of bargaining for units with at least 30% public safety employees are:
“Public safety” employees include law enforcement and firefighters. Strikes are prohibited in the Colorado public sector, with strong sanctions imposed in the event of an illegal work stoppage. In lieu of the right to strike, the PERA contains a detailed procedure for the resolution of collective bargaining impasses.
The Public Employment Relations Board (PERB) administers the PERA. The powers and duties of the PERB include, but are not limited to, the following:
The Fair Labor Standards Act (FLSA) sets forth standards for minimum wage and overtime pay.
Separate rules may apply for particular classes of public employees, such as employees engaged in fire protection activities or law enforcement activities.
Public employees are able to engage in voluntary sporadic or occasional work for their employer in a different capacity without those hours being combined for overtime purposes. An example of a voluntary sporadic assignment would be a school clerk collecting tickets at a high school football game. There are also very liberal rules covering outside employment by law enforcement and fire protection employees.
In general, federal, state and local government employers, with the agreement of their employees, can give compensatory (or comp) time off (at time and one-half) rather than pay cash overtime. In other words, if an employee worked 60 hours in a week, he or she could get 30 hours of comp time off instead of 20 hours of overtime pay.
An employee can accrue up to 480 hours of comp time (320 hours of actual overtime worked) if the work done by the employee for which comp time may be provided includes work in:
There is a 240-hour cap on comp time (160 hours of actual overtime worked) for all other types of work.
Compensatory time received by an employee in lieu of cash must be at the rate of not less than one and one-half hours of compensatory time for each hour of overtime work and must be under an agreement or understanding between the employer and employee prior to beginning the overtime. There is no specific time limit as to when a public employee may elect to use comp time earned.
However, the public employer must permit the employee to use such time within a reasonable period after the employee requests time off, unless such use will unduly disrupt the government’s operations (which generally depends on the government’s workload and specific circumstances of each case). When an employee’s employment is terminated, he or she must be paid for all remaining comp time at his or her current rate of pay.
See Chapter 10: Wage and hours for a more in-depth discussion of the Fair Labor Standards Act (FLSA).
Because public employers are state actors, the U.S. and Colorado Constitutions govern them. While the Bill of Rights has been held to create “zones of privacy” into which the government may not intrude, this amorphous privacy right has not been generally recognized in the workplace.
However, the more specific Fourth Amendment right to be free from unreasonable searches and seizures has been recognized in the public employment context. Public employees may have limited Fourth Amendment protections if they had a reasonable expectation of privacy in the place searched (e.g., a locked file cabinet). On the other hand, if there is no reasonable expectation of privacy (e.g., in a government-provided cell phone), a government search does not violate the Fourth Amendment.
Drug-testing is a “search” within the scope of the Fourth Amendment. Therefore, if the test is “unreasonable,” the Fourth Amendment is be violated. Testing is considered reasonable (and therefore, constitutional) when the employee works in a safety-sensitive position. For example, all Colorado public-sector employees working in any safety sensitive position are subject to the Omnibus Transportation Employee Testing Act. The law requires every covered employer to conduct pre-employment, reasonable suspicion, random, post-accident, follow-up and return-to-duty alcohol and controlled substances testing of each applicant for employment or employee who is covered by the law.
Examples of safety sensitive positions include employees required to obtain/hold a Commercial Drivers’ License (CDL) and public transit workers.
See Chapter 29: Privacy rights for a more in-depth discussion of employee’s privacy rights.
Both the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and Colorado statutes govern the employment rights of private and public employees called to military service. USERRA provides for three main types of protection:
Colorado law provides that the state's public employees that are members of the U.S. Armed Forces should receive up to 15 days of paid leave during a calendar year for services for Reserve Component members.
Colorado employers, public and private, may not discriminate against employees because they are members of the National Guard or other military services.
See Chapter 18: Military leave for a more in-depth discussion of USERRA.
Many federal laws and the Colorado Anti-Discrimination Act protect employees from being discriminated against or terminated on the basis of protected status, such as race, gender, age, etc. These laws also prohibit retaliation against employees for exercising their right to seek protection from discrimination. The following laws apply to public employees.
Title VII applies to both public and private employers with 15 or more employees. Title VII prohibits employers from terminating or taking any other discriminatory employment action against employees because of the employees’:
See Chapter 12: Discrimination, for a more in-depth discussion of Title VII.
The Colorado Anti-Discrimination Act (CADA), which applies to all Colorado employers with at least one employee, also prohibits employers from terminating or taking any other discriminatory employment action against employees because of the employees’:
As an amendment to Title VII, the Pregnancy Discrimination Act requires that pregnant women must be treated the same as men or non-pregnant women whose inability to work is due to a non-pregnancy-related illness or disability.
The Age Discrimination in Employment Act (ADEA) applies to public and private employers with at least 20 employees. The ADEA prohibits employers from discharging or discriminating against employees who are 40 or older because of their age.
See Chapter 12: Discrimination for a more in-depth discussion of the ADEA.
The Americans with Disabilities Act (ADA) applies to public and private employers who have at least 15 employees. The act prohibits employers from discharging or discriminating against qualified individuals with a disability due to the employee’s disabled status.
See Chapter 13: Disabilities and reasonable accommodations for a more in-depth discussion of the ADA.
The Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees and all public employers and educational agencies (regardless of whether they meet the private employer threshold requirements) provides up to 12 weeks of unpaid leave per 12-month period for employees upon any of the following:
In addition, FMLA provides up to 26 weeks of leave if the employee needs to care for a family member who was injured or became ill while on active military duty. FMLA may also be available if a family member is called to active duty. Employers may not lawfully terminate, discriminate or retaliate against employees who exercise their rights under the FMLA.
The Worker Adjustment and Retraining Notification Act (WARN) covers all quasi-public entities separately organized from regular government that employ either:
State and local government employers are included in the limited exceptions for employers from OSH Act coverage.
See Chapter 33: Safety and health, for a more in-depth discussion of OSHA.
Workers in Denver who provide services under city contracts, including janitorial, airport, parking, security and childcare, have a right of retention at the time of contract expiration or change in control.
Policies and Forms
Public Employers — Colorado
About the Firm
About the Contributors
Features of the HR Library
About the Author
Snapshot – An HR audit — Colorado
Compliance thresholds — Colorado
Recruiting and hiring — Colorado
Background checks — Colorado
Immigration — Colorado
Temporary, leased and franchise employees — Colorado
Independent contractors — Colorado
Restrictive covenants and trade secrets — Colorado
Policies and procedures manuals — Colorado
Wages and hours — Colorado
Child labor — Colorado
Discrimination — Colorado
Disabilities and reasonable accommodation — Colorado
Workplace harassment — Colorado
Benefits — Colorado
Health insurance reform — Colorado
Family and medical leave — Colorado
Military leave — Colorado
Other types of leave — Colorado
Performance evaluations — Colorado
Personnel files — Colorado
Workplace investigations — Colorado
Discipline — Colorado
Termination — Colorado
Plant closings and mass layoffs — Colorado
Health insurance continuation coverage — Colorado
Unemployment insurance — Colorado
Whistleblower protections — Colorado
Privacy rights — Colorado
Health insurance portability and privacy — Colorado
Technology and the Internet — Colorado
Social media — Colorado
Safety and health — Colorado
Workplace violence — Colorado
Workers' compensation — Colorado
Telecommuting — Colorado
Celebrating in the workplace — Colorado
Politics in the workplace — Colorado
Federal contractors and affirmative action — Colorado
Public Employers — Colorado
Unions — Colorado
Marijuana — Colorado
Diversity, equity and inclusion in the workplace — Colorado
Disaster planning — Colorado
Pandemic Preparedness — Colorado
Appendix A: Recordkeeping requirements
Appendix B: Posting requirements