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 topic in its entirety for a comprehensive discussion of the federal and state laws affecting their relationship with their employees.
Employment at-will doctrine
Certain public employees are excluded from the employment at-will doctrine because of statutorily-mandated systems, such as the merit system.
See 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 Immigration, for a more in-depth discussion of immigration issues.
Collective bargaining in the public sector
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:
leaves of absence
health and safety matters
procedures for staff reduction
in-service training and grievance procedures
and other matters mutually agreed upon.
“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:
determining appropriate bargaining units and conducting representation elections
adjudicating prohibited practice complaints including the exercise of exclusive original jurisdiction over all claims alleging the breach of the duty of fair representation
fashioning appropriate remedial relief for violations of the PERA, including but not limited to, the reinstatement of employees with or without back pay and benefits
adjudicating and serving as arbitrators regarding state merit system grievances and, upon joint request, grievances arising under collective bargaining agreements between public employers and certified employee organizations
providing mediators and arbitrators to resolve impasses in negotiations
collecting and disseminating information concerning the wages, hours and other conditions of employment of public employees
preparing legal briefs and presenting oral arguments in the district court, the court of appeals and the supreme court in cases impacting the board.
Wage and hour laws
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.
Compensatory time off
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:
a public safety activity (such as law enforcement officers and firefighters)
emergency response activity (such as the dispatch of emergency vehicles, rescue work and ambulance services)
seasonal activity (typically work during periods of increased demand that are regular and recurring in nature).
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 Wage and hours for a more in-depth discussion of the Fair Labor Standards Act (FLSA).
Privacy rights laws
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 and alcohol testing
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 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:
- The statute prohibits discrimination or retaliation against individuals based on past, current or future military obligations.
- The law allows employees to take a leave of absence to serve in the uniformed services.
- The law provides a qualified right to reinstatement upon return from service.
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 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 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 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 Disabilities and reasonable accommodations for a more in-depth discussion of the ADA.
Family and medical leave
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:
the birth or adoption of a child
the employee’s own serious health condition
the serious health condition of certain family members.
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.
Plant closings and mass layoffs
The Worker Adjustment and Retraining Notification Act (WARN) covers all quasi-public entities separately organized from regular government that employ either:
100 or more full-time workers (including all locations and including employees on layoff status or a leave of absence)
100 or more full- and part-time workers who work at least a combined 4,000 hours per week (not including overtime).
Safety and health laws
State and local government employers are included in the limited exceptions for employers from OSH Act coverage.
See 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.