Monday, September 1, 2014

Antidiscrimination Amendments

In the Utah State Bulletin for September 1, 2014, the Utah Labor Commission proposes an amendment to its antidiscrimination regulations (R606-1).  The amendment repairs an inadequate, ten-day time limit, and provides for the release of information held by the Division of Antidiscrimination and Labor.
          Rule R606-1-3 extends the time for filing a response to a discrimination claim from the rather abrupt "ten working days" (two weeks) to a more reasonable thirty days (four weeks).  This amendment appropriately addresses the timing issues---a question of fundamental fairness---but triggers the time from the date the claim is sent rather than the date it is received.  The amendment also permits a response by email in addition to mailing and fax.  The amendment also mandates that the response address each allegation in the discrimination claim along with any supporting evidence.  
            Procedurally, the amendment specifies that a failure to respond will be investigated, and may result in a determination without the nonresponding party being able to submit argument or evidence.  A late response, moreover, is not to be considered.
            A new Rule, R606-1-5, provides for release to parties of information obtained during investigations or proceedings.  The rule seeks to ease party participation in antidiscrimination investigations.  The Amendment requires the Division of Antidiscrimination and Labor to release information requested by a party in writing (R606-1-5(A)), unless
             * the source of the information requests (and the Division agrees that) the information be considered confidential, 
             * the Division decides the information should be held confidential,
             * the Division determines that releasing the information will somehow impede the investigation, or
             * the information consists of 
                           - is work product,       - social security information,
                           - witness names,         - bank account numbers, or
                           - medical records (including ADA questionnaires) 
                                      in the absence of an appropriate release.  

Friday, August 29, 2014

Utah Court of Appeals: Employee Caught on Camera Taking a Customer's Wallet had no Actionable Claim against Employer

The Utah Court of Appeals upheld a trial court's summary judgment dismissal of a former employee's claim against Target for breach of contract, intentional and negligent infliction of emotional distress, and defamation.  In a twenty page opinion, the court said that the employee, who had been caught on camera taking a customer's wallet, had no contractual right to progressive discipline before being discharged, had not been treated outrageously when interrogated by a security officer who had already decided to discharge her before questioning her, and had not been defamed because Target had a conditional privilege to communicate the reason for the discharge with its employees and interested parties.  

Wednesday, August 13, 2014

The Strange Case of Blauer and the DWS: A Question of Sovereign Immunity ... Sort of

2014 UT App. 100 (Utah Ct. App., May 1, 2014)

When [ironies] come, they come not single spies, but in battalions.
                         — Paraphrasing Hamlet IV.v

The Department of Workforce Services, charged with administering Utah employment law, fired Blauer, its legal counsel, for rejecting its proposed accommodations to his disabilities.  Blauer’s physicians recommended he avoid sedentary labors.  In response, DWS assigned Blauer to hear employment cases—mostly by phone.  Blauer refused, asserting that this was purely sedentary work.  The DWS replied that since he would be on the telephone most of the time, he could walk about during the hearings.  Eventually, the DWS terminated Blauer, who brought suit in Utah state court under the federal Americans with Disabilities Act (ADA) and the Utah Antidiscrimination Act (UADA).   

Blauer pointed to the ADA’s specific abrogation of Eleventh Amendment immunity, declaring that no state could violate the ADA and then retreat behind the Eleventh Amendment.  Ironically, however, in its endless tug-of-war with Congress, the US Supreme Court had struck that provision down in 2001 as unconstitutionally abrogating the Eleventh Amendment.  Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 373–74 (2001).  Moreover, the Utah Court of Appeals pointed out, the Eleventh Amendment applies to federal jurisdiction.  Blauer had brought his suit in state court.  Blauer seemed to be arguing, the court mused, that the absence from the Eleventh Amendment of explicit protection for the states from federal claims in state court somehow allowed Blauer to sue DWS in state instead of federal court. 2014 UT App. at ¶ 7.  This idea, however, the US Supreme Court had particularly rejected, declaring that “state courts could [not] be required ‘to entertain federal suits which are not within the judicial power of the United States and could not be heard in federal courts.’”  Id., quoting Alden v. Maine, 527 U.S. 706, 712–13, 754 (1999). 
The Blauer Court leaves unanswered the rather critical question how there could ever be a federal suit outside the jurisdiction of the federal courts, or how a state legislature might create such a thing, or by what mechanism a plaintiff might lawfully bring it.  But since state sovereign immunity from federal suits “exists irrespective of the Eleventh Amendment,” it probably makes little difference.  Except of course to Mr. Blauer.

Blauer v. DWS stands, apparently, for the proposition that the Eleventh Amendment is superfluous, that nobody but other governments can maintain a federal (or state) suit against a state.  And this applies especially to suits based on laws the federal government cannot pass.

Wednesday, August 6, 2014

Tenth Circuit: Favoring a Paramour Not Necessarily Gender Discrimination

In Clark v. Cache Valley Electric Co. (10th Cir., July 25, 2014), the Tenth Circuit Court of Appeals ruled that a federal district court had properly dismissed a gender discrimination and retaliation claim brought by a Utah employee of Cache Valley Electric.  The employee claimed that a supervisor was favoring an employee who had allegedly been in a previous sexual relationship with the supervisor.  The Tenth Circuit noted that "[f]avoritism of a paramour is not gender discrimination."  Although such relationships can give rise to gender discrimination claims, the Court explained that to establish such a claim there must be evidence of gender bias generally, emphasizing the that "the preferential treatment [in this case extended only] to one female employee."  (Emphasis in original.)

Friday, July 25, 2014

Tenth Circuit: Carbon County Properly Dismissed Benefits Administrator for Dragging Her Feet on her Own FMLA Paperwork

In a case decided today, Dalpiaz v. Carbon County, the Tenth Circuit Court of Appeals upheld Carbon County's decision to discharge a benefits administrator when she "acted insubordinately by choosing to submit her FMLA forms at almost the literal last minute, more than seven weeks after the county made its first request for these forms to be submitted as soon as possible and after several reminders that the county was still waiting."  The Court also agreed that the county was justified in discharging her when she "fail[ed] to make more than a belated, half-hearted effort to comply with a direct and legitimate order" to report to a doctor to obtain a second opinion.  The Court rejected the employee's argument that this interfered with her rights under the FMLA because, despite the fact that the paperwork and second-opinion were related to her request for FMLA leave, her decisions were "not shelter[ed] . . . from" her obligation "to comply with legitimate directions given by her supervisor."  The decision affirmed the trial court's dismissal of the employee's claim on summary judgment.

Thursday, July 17, 2014

The Utah Employment Lawyer---New and Improved!

Since 2009, The Utah Employment Lawyer Blog has posted important information about events and legislation and cataloged cases that relate exclusively to Utah employers.  In the last month, The Utah Employment Lawyer, created by D. Scott Crook, a partner at the boutique Utah law firm Arnold & Crook PLLC, has gone through a major overhaul that makes the blog more user-friendly and allows more quick updates on Utah employment news.  

Here is a sample of some of the information you can find on the blog:

  • Since 2009, the Utah Supreme Court has decided no employment discrimination related cases, while the Utah Court of Appeals has decided 5 and the Tenth Circuit Court of Appeals has decided over 323.
  • Utah S.B. 100, legislation proposing to amend the Utah Antidiscrimination Act to prohibit discrimination on the basis of sexual orientation was sponsored by Senator Stephen H. Urquhart.
  • Links to some entertaining "New Employee Orientation" videos.
Please come visit the site and see how helpful it can be!