Utah Labor Commission Has Broad Statutory Authority to Correct Old Workers Compensation Judgments

In Frito-Lay v. Labor Commission, the Utah Supreme Court clarified that, although Utah state courts do not have authority to impose the Utah Rules of Civil Procedure on administrative proceedings, the Utah Workers' Compensation Act gives the Labor Commission broad authority to correct orders even after statutory appellate deadlines have passed. Accordingly, in Frito-Lay, the Supreme Court ruled that the Labor Commission could properly review an order that "did not reflect the [Administrative Law Judge's] determination at the hearing" even after the "30-day deadline [for an appeal] provided by the Utah Administrative Procedures Act" had passed.

Demotion Without Reduction in Pay is Not Appealable

In Olson v. Utah Department of Health, the Utah Court of Appeals ruled that the Career Service Review Board (CSRB), established for review of certain disciplinary actions taken against state employees, did not have jurisdiction over the appeal of a disciplinary transfer of an employee. It ruled this way even though when originally transferred the woman had also received a cut in pay. Because her employer had determined to rescind the cut in pay, the CSRB determined that it no longer had jurisdiction after her original wage was restored. The Utah Court of Appeals agreed that for the CSRB to have jurisdiction over such disciplinary transfers there must be a reduction in pay as well.

Salt Lake City Considering Proposed New Ordinance Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity

Salt Lake City Mayor, Ralph Becker, has proposed that the Salt Lake City Council consider the adoption of a new ordinance that would prohibit discrimination by any Salt Lake City employer who employs more than 15 employee from discriminating against an employee because of his or her sexual orientation or gender identity. The City Council will be briefed on the proposed new ordinance by the mayor's office in the City Council's Work Session today , October 20, 2009, at 3:00 p.m. The city council has issued a fact sheet explaining how any individual may submit comments. The agenda for the meeting is also attached.

Road Workers Not Discriminated Against Because of Political Affiliation

In Trujillo v. Huerfano County Board, the Tenth Circuit Court of Appeals---the federal court having jurisdiction over Utah---ruled that two former road supervisors who had publicly supported a Democratic candidate for county commissioner had not been discriminated against when they were disciplined by a new Road Supervisor who had been installed shortly after the Republican county commissioner was sworn in. The Court ruled that the temporal proximity of the discipline was insufficient to establish political retaliation when other substantial evidence existed that showed the two other county commissioners---both Democrats---supported the changes that took place before the discipline occurred.

Caring For Sick Father Does Not Excuse Missing Appellate Deadline.

In Ayusa v. Department of Workforce Services, the Utah Court of Appeals determined it lacked jurisdiction to hear an appeal because an unemployed worker had missed the appellate deadline for her unemployment benefits denial while she cared for her ailing father. Central to the court's decision was the fact that the worker had delayed the appeal for three months and that there was no credible evidence that she "'could not have taken the few moments necessary to file an appeal'" during that time frame.

Can a Railroad be Liable for Using an After-Market Air Conditioner?

The Utah Supreme Court issued a decision last week that will allow a railroad employee to pursue his claims for the injuries he suffered when he bumped his head on an overhead air-conditioner. The case entitled Raab v. Utah Railway Company will almost certainly become an oft-cited case in legal circles for its systematic analysis of a legal doctrine referred to as "proximate cause." However, for purposes of human resource and employment professionals, particularly those involved with railroads, the case is important because it declares that, in Utah at least, a railroad will be liable for an injury to an employee even if the railroad's conduct was not the direct cause of the injury. Rather, an employee need only show that "the injury occurred while the employee was discharging the duty that devolved on him or her by reason of the employer's negligence." In other words, if an employer's negligence required the employee to do something and he or she was injured while fulfilling that responsibility, the employer may be found liable for the injury. Because this case involved a claim under the Federal Employers Liability Act (FELA) and the Federal Locomotive Inspection Act (FLIA), the holding of the case will have a limited application, but it is a helpful reminder to employers to assure that the workplace is free of unnecessary dangers.

Are Deductions from Employee Wages Proper?

In Utah, an employer may not deduct, withhold, or divert any part of an employees wage except in specific circumstances, including as required by court order, by state or federal law, or by express written authorization of the employee. The regulations implementing this statutory provision are very restrictive with respect to express written authorizations that are permitted.

a. Deduction to Pay for Goods and Services

An employer may not deduct from wages payment for the purchase of goods or services unless the “[e]mployee has . . . possession of the goods or services” and the employee has given written authority for the deduction. An employer may also not deduct for tools of the job unless the above conditions are met plus the employer must repurchase the item at the employee’s option at a “fair and reasonable price” at the termination of the employment relationship.

b. Deduction for Negligent or Criminal Acts of Employees

An employer may not deduct damages suffered due to the “employee’s negligence” unless the negligence and damage “arise out of the course of employment,” the employer has not received payment from another source including insurance, the withdrawal is related to the amount of damage, and the damage is above ordinary wear and tear. However an employee’s negligence and the amount of damage can only be determined “by a judicial proceeding,” by a pre-published and written procedure and the employee’s signed written authorization, or any other provision allowed by law.

Additionally, an employer may not deduct for damages or loss caused by an employee’s criminal conduct unless (1) the employee has been adjudged guilty, (2) the crime arose out of the employment relationship, (3) (a) the property of the employer cannot be recovered, or (b) the employee willfully and admittedly in fact destroyed the company property.

An employer is also prohibited from deducting amounts for cash shortages unless (1) an employee has signed a written acknowledgment that he or she will be responsible for shortages, (2) the employee verifies the amount in the register and the employee gives a written acknowledgment of the verification at the beginning and end of his or her shift, and (3) the employee is the sole user of the register.

An employer is further restricted from deducting for lost tools unless the item was assigned during the employment, the employee gave written acknowledgment of the receipt of the item, and the item was not returned to the employer upon termination.

For further information on Wage and Hour issues, please click here.

Salt Lake City Considering Antidiscrimination Ordinance to Prohibit Discrimination on the Basis Sexual Orientation and Gender Identity and Expression

Salt Lake City Mayor, Ralph Becker, has declared his intention to deliver a nondiscrimination ordinance in mid-September that will recommend the adoption of an ordinance that will prohibit employers in Salt Lake City from discriminating against employees or applicants for employment on the basis of a person's "actual or perceived [sexual] orientation" or a "person's actual or perceived gender related identity." The ordinances would potentially exempt small employers, religious organizations, and governmental entities.

Court Upholds Dismissal of Police Officer for Failing to Properly Write Reports.

In Boston v. Salt Lake City Civil Service Commission, the Utah Court of Appeals upheld the dismissal of a police officer because she had failed to give a field sobriety test when a situation warranted it and when she failed to properly write a report on a theft charge. The Court rejected the officer's argument that she had been treated more harshly than other officers.

Are You Prepared for New Return-to-Duty and Follow-Up Drug Testing Requirements?

On July 30, 2009, the Department of Transportation issued a new final rule that will become effective August 31, 2009, requiring that all return-to-duty and follow-up drug tests be done pursuant to Direct Observation. Although the rule found at 49 CFR 40.67(b) was originally issued on June 25, 2008, because of intervening court action the final implementation of the rule was delayed.