Chapter 11 - § 11.2 • ACTIVITIES IN THE PUBLIC INTEREST

• Jurisdiction: Colorado

§ 11.2 • ACTIVITIES IN THE PUBLIC INTEREST

§ 11.2.1—Associations

A private or public employer may not prevent employees from forming, joining, or belonging to any lawful labor organization, union, society, or political party or threaten to discharge an employee because of his or her connection with a lawful labor organization, union, society, or political party. C.R.S. §§ 8-1-101(6) and (7); 8-2-102. The statute does not create an obligation on employers with regard to "potential" employees. DeJean v. United Airlines, 839 P.2d 1153, 1159 (Colo. 1992). Violation of § 102 constitutes a misdemeanor punishable by a fine of at least $100, but not more than $500, and imprisonment for at least six months, but not more than one year. C.R.S. § 8-2-103. See also C.R.S. § 8-2-101 (protecting any combination of employees for peaceable purposes).

In addition, practitioners are reminded that the Colorado Labor Peace Act, C.R.S. §§ 8-3-101, et seq., governs labor relations in Colorado to the extent not preempted by federal law. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 337 P.2d 953, 960 (Colo. 1959). See especially C.R.S. § 8-3-108(1), which delineates what is an unfair labor practice on the part of employers in dealing with employee involvement with labor organizations.¹

§ 11.2.2—Political Activity And Access To Lawmakers

In addition to the protection of employees' political associations discussed above, an employer in Colorado cannot "make, adopt or enforce any rule, regulation or policy forbidding or preventing" any employee from: (1) "engaging or participating in politics"; (2) "becoming a candidate for public office"; or (3) "being elected to and entering upon the duties of any public office." C.R.S. § 8-2-108(1). Violation of the statute constitutes a misdemeanor for which the employer or its agent may be fined up to $2,000 and/or imprisoned up to one year. Id. The statute also permits an injured employee a private right of action to recover damages for injuries sustained by a violation. C.R.S. § 8-2-108(2). To date, no reported decision has interpreted this statute.²

Another statute, the Freedom of Legislative and Judicial Access Act, protects employee access to the legislature and courts. C.R.S. § 8-2.5-101. Specifically, the statute makes it unlawful for an employer to take action against or otherwise forbid or prevent an employee from "testifying before a committee of the general assembly or a court of law or speaking to a member of the general assembly at the request of such committee, court, or member regarding any action, policy, rule, regulation, practice, or procedure of any person or regarding any grievance relating thereto." C.R.S. § 8-2.5-101(1)(a). The statute specifically prohibits intimidation of a legislative witness to "intentionally influence or induce" that witness to appear or not appear, to refrain from testifying, or to testify falsely or avoid the service of process. C.R.S. § 8-2.5-101(1.5)(a). Persons subject to the statute specifically include corporations, limited liability companies, partnerships, associations, firms, state agencies, cities and counties, municipalities, federal agencies, individuals, and corporate officers. C.R.S. § 8-2.5-101(4). However, the protections do not apply to testimony by employees that divulges confidential, proprietary, or otherwise privileged information. C.R.S. § 8-2.5-101(1)(b). An employer is under no obligation to compensate an employee for testifying before a committee, court, or member of the general assembly. C.R.S. § 8-2.5-101(3). Violation of the statute constitutes a misdemeanor for which any person violating the statute may be fined up to $1,000. C.R.S. § 8-2.5-101(1)(a). The statute also permits an injured employee the right to recover damages, including reasonable attorney fees, for injuries suffered by a violation. C.R.S. § 8-2.5-101(2). In addition, the statute does not foreclose the employee's "right to pursue any other right of action permitted at law" for a violation. C.R.S. § 8-2.5-101(2)(b). There is no basis to conclude that this section clearly expresses a public policy that forbids an employer from terminating an employee for filing a motion or a lawsuit against an employer. Slaughter v. John Elway Dodge S.W./AutoNation, 107 P.3d 1165, 1168 (Colo. App. 2005) (the section does not clearly mandate a general public policy protecting access to the courts). Also, to bring a successful claim under this section, a plaintiff must establish that any action taken was solely because of the plaintiff's testimony. See Emerson v. Wembley, U.S.A., 433 F. Supp. 2d 1200, 1226 (D. Colo. 2006).

§ 11.2.3—Whistleblower Protection In The Public Sector

The Public Employees Whistleblower Protection Act "declares that state employees should be encouraged to disclose information on actions of state agencies that are not in the public interest and that legislation is needed to ensure that any employee making such disclosures shall not be subject to disciplinary measures or harassment by any public official." C.R.S. § 24-50.5-101. "Disclosure of information means the written provision of evidence to any person, or the testimony before any committee of the general assembly, regarding any action, policy, regulation, practice, or procedure, including, but not limited to, the waste of public funds, abuse of authority, or mismanagement of any state agency." C.R.S. § 24-50.5-102(2).

An agency is prohibited from taking disciplinary action against an employee on account of the employee's disclosure of information. C.R.S. § 24-50.5-103(1). In 2017, the General Assembly established a fraud hotline within the office of the state auditor. That legislation, HB 17-1223, also amended C.R.S. § 24-50.5-103 to prohibit an agency from initiating or administering any disciplinary action against an employee on account of the employee's disclosure of information to the fraud hotline, except where the employee discloses information without regard to the truth or falsity of the information. C.R.S. § 24-50.5-103(2.5). Note that "disciplinary action" means any direct or indirect form of discipline or penalty, including, but not limited to, dismissal, demotion, transfer, reassignment, suspension...