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2023 Starts with a Bang in Employment Law!!

    January 19, 2023
    By Michael Santo, COSHRM Legislative Director and Managing Attorney at Bechtel & Santo

    The old expression goes that the month of March comes in like a lion and goes out like a lamb. Well, with all due respect to March, the 2023 calendar has come in like a really big lion when it comes to employment issues. And it’s anyone’s guess where it may go. Here are a few things that occurred just since the flip of the calendar.  

    A couple of weeks ago, the Federal Trade Commission proposed a new rule that would pretty much prohibit noncompete agreements in the United States. There are a few industries exempted from the ban and the ban also permits certain noncompete agreements for the sale of the business. The FTC explained that it believes non-compete clauses prevent workers from leaving jobs and decrease competition for workers, causing lower wages for both workers who are subject to them as well as workers who are not. The FTC also stated in its proposed Rulemaking its belief that “non-compete clauses also prevent new businesses from forming, stifling entrepreneurship, and prevent novel innovation which would otherwise occur when workers are able to broadly share their ideas.” The proposed rule would supersede all states’ laws that permit noncompete agreements between employers and employees. The FTC is currently taking public comments on its proposed rule through March 10, 2023. After that, the FTC may issue a new proposed rule, terminate the Rulemaking, or move to create a final rule.  

    The Colorado Healthy Families and Workplaces Act (“HFWA”) provided that all Colorado employers, regardless of size or industry, must provide employees with public health emergency leave (“PHEL”) (two weeks — 80 hours, or less for part-time employees) when there is a declared public health emergency from the State or Federal government. On January 11, 2023, the federal Department of Health re-upped that declaration for another three months. Based on this, Colorado employers must continue to provide employees PHEL for a range of needs (e.g., symptoms of COVID, such as fever or chills, cough, fatigue, muscle or body aches, headache, sore throat, congestion or runny nose; quarantining or isolating due to exposure; testing for COVID; and vaccination and its side effects). Further, while Governor Polis recently declared that PHEL should also cover “flu, respiratory syncytial virus (“RSV”), and similar respiratory illness,” that declaration by the Governor expired on January 8, 2023. So, in sum, PHEL is limited, for now, to just those issues associated with COVID.  

    Since COMPS first became effective in 2020, the Colorado Department of Labor and Employment has released a new COMPS Order each year with a corresponding increase in the number of the Order. For example, in 2020, the CDLE gave us COMPS Order #36 and then in 2021, it was COMPS Order #37.  Of course, in 2022, we had COMPS Order #38. But this year, instead of following that trend, the CDLE determined to reuse “COMPS Order #38.” But while the number stayed the same, there are still items you must update. For example, the minimum wage was $12.56 ($9.54 for tipped employees) and is now $13.65 ($10.63 for tipped employees). With that change in the minimum wage, Colorado employers need to post the new Pay Calc Order, which is available on the Department’s website. Similarly, just like past COMPS Orders, the “new” one requires every employer publishing or distributing any handbook, manual, or written or posted policies to include a copy of the COMPS Order, or a copy of the COMPS Order poster published by the Department, with any such handbook, manual, or policies. So, Colorado employers need to ensure that the “new” COMPS Order #38 is published with the handbook and, just like the previous ones, have the employee signoff regarding receipt.  

    While only being in session for about a week, the Colorado legislature dropped three new bills. The first, SB23-017, would allow an employee to use accrued paid sick leave (i.e., leave under Colorado’s Healthy Families and Workplaces Act) when the employee needs to: (1) care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member's school or place of care; or (2) grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member. The second bill, HB-1035, addresses the importance of clarifying the length of time that an employee has to file an alleged minimum wage violation claim against the employee’s employer. And the final bill, SB23-46, concerns calculating a covered individual’s pay when the individual takes leave under Colorado’s Family and Medical Leave Insurance (“FAMLI”), which employees can start using in 2024.  

    Speaking of FAMLI, as you know, in November 2020, Colorado voters went to the polls in record numbers and voted in favor of creating a paid leave program entitled FAMLI. And while employees aren’t eligible to take FAMLI leave until January 2024, most Colorado organizations are required to register with the FAMLI program and begin making premium deductions from all employees’ paychecks starting in January 2023. So, as you ring in the new year, remember that three of your organization’s resolutions should be:

    (1) register your company with the online system;
    (2) remember that organizations are required to post the CDLE’s FAMLI poster; and
    (3) don’t forget that those covered by FAMLI are required to start making premium deductions  from the employee’s first paycheck.  

    The theme of early 2023 seems to be “don’t forget to register.” That is, Colorado employers are required to register their businesses with the Colorado Secured Savings Program. The Program is supposed to provide all businesses with an access code by email or mail to be able to access this system. It is a good idea to keep an eye out for this letter or email and register when you receive these notices. This Program is required for businesses with five (5) or more employees, that have been in business for two or more years, and do not have an existing qualified retirement plan. This Program provides a retirement benefit for all employees who are currently not offered a retirement plan. If your company has a 401(K), 403(B), or other qualified plan, you do not need to enroll in the Program, but you do need to register your business’ exemption at the Program’s website by the deadline indicated.

    In sum, 2023 has certainly started out with a bang!! 

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