2023 comes in like a labor law lion

Michael Santo

According to the old expression, March comes in like a lion and goes out like a lamb. With all due respect to March, the new year already has come in like a really big lion in terms of employment issues. It’s anyone’s guess how it might go out.

Here are a few things that have occurred since 2023 began:

The Federal Trade Commission proposed a new rule that would pretty much prohibit noncompete agreements. Few industries are exempted, although the ban permits certain noncompete agreements for the sale of businesses. The FTC stated in its proposed rulemaking it believes noncompete agreements prevent workers from leaving jobs, decrease competition for labor and drive down wages. The FTC also stated: “Noncompete 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 state laws that permit noncompete agreements. Public comments will be accepted on the proposed rule through March 10. After that, the FTC could issue a new proposed rule, terminate rulemaking or move to create a final rule. 

The Colorado Healthy Families and Workplaces Act requires employers, regardless of size or industry, to provide employees with public health emergency leave — up to 80 hours, less for part-time employees — when there’s a declared state or federal public health emergency. On Jan. 11, the U.S. Department of Health extended the declaration for another three months. Colorado employers must continue to provide employees public health emergency leave for a range of needs. They include COVID-19 symptoms, quarantining or isolating due to exposure, testing for COVID, vaccinations and their side effects.

Since Colorado Overtime and Minimum Pay Standards (COMPS) became effective in 2020, the Colorado Department of Labor and Employment has released a new order each year. The latest order includes more changes. The minimum wage was $12.56 an hour ($9.54 for tipped employees) and is now $13.65 ($10.63 for tipped employees). With the change in wages, employers must post the new Publication And Yearly Calculation of Adjusted Labor Compensation, which is available on the department website. The order
requires employers publishing or distributing any handbook, manual or written or posted policies to include a copy of the COMPS order or COMPS order poster. Employers must ensure the revised COMPS Order No. 38 is published with their handbooks and have the employee signoff regarding receipt. 

The Colorado Legislature already is considering employment measures in its latest session. SB23-017 would allow employees to use accrued paid sick leave — leave under Colorado’s Healthy Families and Workplaces Act — when they need to either care for a family member whose school or place of care has been closed due to inclement weather; loss of power, heating or water or other unexpected occurrences as well as grieve, attend funeral services or a memorial or deal with financial and legal matters that arise after the death of a family member. HB-1035 clarifies the length of time an employee has to file an alleged minimum wage violation claim.  SB23-46 concerns calculating a covered individual’s pay when the individual takes leave under Colorado’s Family and Medical Leave Insurance (FAMLI) program.

Speaking of FAMLI, most Colorado organizations must register with the FAMLI program and begin making premium deductions from employees paycheck starting in January 2023.
That means your New Year’s resolutions should include: register your company with the online system, post the Colorado Department of Labor and Employment FAMLI poster and start making premium deductions from employees’ first paychecks

If there’s a common theme of early 2023, it appears to be this: “Don’t forget to register.” Colorado employers are required to register their businesses with the Colorado Secured Savings Program.
The program is supposed to provide businesses with a code to access this system. Keep an eye out for this email or letter and register when you receive these notices. The program is required for businesses with five or more employees, those that have been in operation for two or more years and don’t offer qualified retirement plans. This program provides benefits for employees who aren’t offered retirement plans. If your company offers a 401(K), 403(B) or other qualified plan, you don’t need to enroll in the program. But you do need to register your exemption on the program website by the indicated deadline.

In sum, 2023 has certainly come in like a lion.