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!

Tuesday, July 8, 2014

Utah Supreme Court: Private University's Police Cadet was Public Employee Entitled to Immunity

In Mallory v. Brigham Young University, the Utah Supreme Court held that a police cadet employed by BYU was considered an employee for governmental immunity purposes.  The decision reversed a 2012 Utah Court of Appeals decision holding otherwise, and concluded that the plaintiff had no claim because he had failed to serve a notice of claim under the Governmental Immunity Act. 

Utah statute allows private universities to establish law enforcement agencies under certain conditions.  BYU obtained the necessary certifications to create a law enforcement agency and established its own police force.  Provo, the city in which BYU is located, adopted an ordinance in which it permitted BYU to employ non-peace officers to direct traffic in certain circumstances so long as those employees were supervised by peace officers employed by BYU.  Provo provided no other mechanism of control over this authority other than reserving in its ordinance the right of the Provo City Police Chief to discharge officers and agents of the Provo City Police Department.

In 2008, a BYU employee was directing traffic when an accident occurred.  The injured person sued BYU and the BYU employees without first serving a notice of claim with Provo City under the Governmental Immunity Act.  BYU claimed that the employee was a Provo City employee as that term was defined under the Governmental Immunity Act and sought dismissal of the complaint.  The trial court dismissed the claim and, on appeal, the Court of Appeals reversed.

The Utah Supreme Court reversed the Court of Appeals holding (1) the term "agent" had a broader meaning than decided by the appellate court, and (2) because Provo City ultimately had the right to control the BYU defendants' method or even right to control traffic on Provo's streets, it had sufficient control to establish a master-servant relationship, making the subordinant BYU employee a "servant" of Provo City sufficient that the Governmental Immunity Act applied.  Importantly, in footnote 7 of the majority opinion, the Utah Supreme Court rejected the application of the "right-to-control" case law established in the workers compensation context to the governmental immunity cases.

The dissenting justices provided a spirited opinion in which they strongly disagreed with the analysis of the majority, concluding that they would have held that the employee was much more like an independent contractor and thus not an employee of Provo City.

Monday, July 7, 2014

Utah Supreme Court Rejects Department of Workforce Service's Interpretation of Statute

In a case decided on June 20, 2014, Dorsey v. DWS, 2014 UT 22, the Utah Supreme Court held that the Department of Workforce Services (DWS) had "erroneously interpreted" a statutory provision to ban seasonal employees who receive work-search deferrals from leaving the country.  As in many cases as discussed in an earlier post, the unemployment claimant was a seasonal employee who had been guaranteed to return to work by his employer. Pursuant to regulation, he was told that he need not search for work so long as he was ready, able, and willing to return to work.  During the time that he was on a deferral, he took several trips to Mexico, although he was close to the United States, had his cell phone with him, and contacted his employer.  The DWS had penalized the employee for being unable to return to work as it interpreted any travel outside of the United States as creating an inability to work.  The Supreme Court ruled that a per se ban was inconsistent with the statutory language and therefore overturned the penalty imposed.  While the opinion reverses the DWS's action in this case, it notes that the Utah legislature has recently adopted an amendment to the statute that codifies the DWS's interpretation of the rule.  

Tuesday, May 6, 2014

Federal Minimum Wage Increase Bill Fails


On April 30, 2014, the United States Senate rejected a motion to end debate and force a final vote on the so-called Minimum Wage Fairness Act---a legislative cause celebre for the Democratic Senate majority and House minority, to say nothing of the Obama White House. The Bill would have raised the federal minimum wage from $7.25 to $10.10 over a period of three years. The Congressional Budget Office estimates that the contemplated wage increase, if passed, would affect the wages of over 16.5 million Americans, 900,000 of whom would rise above the poverty line. While Democrats focused on this estimate, Republicans pointed to the the Budget Office's second point, that passage of the wage-hike could result in the loss of nearly a million jobs because employers might not be able to afford to pay the increased salaries.

          Because of the nature of the Senate motion, at least 60 votes were necessary to end debate and bring the bill to a vote. The vote, however, split almost exactly along party lines, 54-42, with four Senators not voting: both Senators from Mississippi, Cochran (R) and Wicker (R), as well as both Senators from Arkansas, Boozman (R-AR) and (surprisingly, perhaps) Pryor (D). Only one Republican, Senator Corker of Tennessee, voted in favor of advancing the bill to a final vote. Senate Majority Leader, Harry Reid, switched his vote from yes to no, but only so as to preserve the right to raise the bill again.

          Last year, on March 15th, House Republicans voted unanimously against this same wage increase, added as a final amendment to a job-training bill. The vote rejecting the amendment was 184-233, and every Republican (227 Congressmen) voted no.
  
Click here for a comparative chart of State minimum wages, 
maintained by the United States Department of Labor.

Wednesday, November 30, 2011

Tenth Circuit: Lilly Ledbetter Fair Pay Act Tolls the Statute of Limitations on Claims for Discriminatory Compensation

In Almond v. Unified School District #501, the Tenth Circuit Court of Appeals ruled that the Lilly Ledbetter Fair Pay Act, which was enacted in 2009, does not extend the statute of limitations on all discrimination claims every time a person receives a paycheck.  Rather, the Tenth Circuit concluded it applies to extend the statute of limitations only when the claim is for discrimination in compensation.  In other words, the Act does not apply to all discriminatory decisions that result in lower pay rate, it only applies when a person claims that he or she is being discriminated against in receiving lower compensation than other similarly situated workers for the same work.

Utah Court of Appeals: Former Orem City Treasury Division Manager a Merit Employee Required to Appeal City Decision to Utah Court of Appeals

In Kocherhans v. Orem City, the Utah Court of Appeals upheld the decision of a trial court dismissing the claim of a former Orem City Treasury Division Manager for wrongful termination.  The court ruled that the former employee's failure to appeal the Employee Appeal Board's decision to the Utah Court of Appeals precluded him from bringing the claim in district court.  The former employee claimed that he should have been considered an "at-will" employee that was not governed by Utah Code Ann. section 10-3-1106, which required him to appeal such a decision.  The Utah Court of Appeals rejected the argument holding that Orem City was not required to designate his position as a division head or deputy position, declaring that cities in Utah have no obligation to create any deputy positions at all.