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.

Wednesday, November 23, 2011

Utah Court of Appeals: Court "Takes Issue" with Workforce Appeals Board's Use of Unintroduced Computer Records to Overturn ALJ Decision

In Swenson v. Department of Workforce Services, the Utah Court of Appeals "[took] issue with the [Workforce Appeals] Board's reliance on evidence that was not presented to the ALJ or given to the parties" to reverse an ALJ's decision in an appeal of an unemployment benefits determination.  Although the Court ultimately affirmed the Workforce Appeals Board's decision on separate grounds, it spent significant time addressing the Board's reliance on Department of Workforce Service's computer records introduced at the Board level but not introduced during the initial hearing.  The Court concluded its analysis by stating that "the procedure followed by the Board appears to violate its own rules and Swenson's right to due process."

Saturday, September 17, 2011

Unemployment Fraud for Filing While out of the United States?

The Utah Department of Workforce Services has apparently begun a campaign of alleging that unemployment applicants are committing fraud when applying for benefits while out of the United States.  Relying on Utah Administrative Code Rule R994-403-112c(2)(i), the Department of Workforce Services has claimed that any travel outside of the United States makes a person ineligible to receive unemployment benefits even if (1) the claimant was on a job deferral and (2) could immediately return to the United States to accept work.  Apparently questioning the interpretation and enforceability of this rule prior to August 2, 2011, the Department of Workforce Services amended the rule in early August to include language that purportedly prohibits employees from claiming benefits for period they spend outside of the United States.

The Department of Workforce Services began this campaign after it updated its technology to identify the ip addresses of computers and telephones from which claims were being made.  The problem with this technology, of course, is that it (1) does not account for anonymizing software nor (2) does it identify that a claimant was actually in the same locality for the proceeding week, the week for which the claim is being made.

Although no published Utah case has dealt with this issue, the issue is ripe for judicial determination, particularly given the penalty that is assessed against a claimant---repayment of the amount claimed, plus a penalty in the same amount, and disqualification from future payments.

Monday, August 15, 2011

Tenth Circuit: Arbitrator Reinstating Employee Violating Rules and Lying About It Was Not Outside of the "Essence" of the CBA

The Tenth Circuit ruled that an arbitrator drew from the essence of the labor contract when he reinstated an employee and imposed a last chance agreement on the employee despite the employee having violated a company rule and then lying about it.  In Chevron Mining Inc. v. United Mine Workers of America Local 1307, the court ruled that, although the arbitrator found that the employe was negligent and provided false information, it was permissible for the arbitrator to consider the motive of the employee in doing so.  In this case, the arbitrator considered that because the employee's deception "was not for personal gain but to prevent loss of his reputation, seniority, and benefits," his conduct was forgivable.  Such a conclusion and imposition of alternative sanctions was not making a decision outside of "the essence of the contract."

Friday, August 12, 2011

Tenth Circuit: Government Employee not Acting within Scope of Employment When Conducting an Examination of Subordinate in Women's Restroom

In Sandoval v. Martinez-Barnish, the Tenth Circuit Court of Appeals upheld a district court's decision to refuse to substitute the United States as the defendant in a case brought by a contract worker against the federal employee assigned to supervise her work.  The contract worker brought a claim for assault, battery, and outrageous conduct against the supervisor when, after the contract worker complained of flying ants in her work space, the supervisor asked the worker to partially disrobe in the bathroom to show her the ant bites on her body.  Although the supervisor was apparently intending to help the worker as a witness of the bites, the worker sued the supervisor.  The United States attempted to substitute itself in as the proper defendant but the Tenth Circuit agreed that the supervisor's behavior was outside the scope of her employment. 

Tenth Circuit: "Wear Away Period" Does Not Discriminate on Age

On August 11, 2011, the Tenth Circuit Court of Appeals ruled that a district court had properly dismissed an Age Discrimination in Employment Act and ERISA claim against an employer.  In Tomlinson v. El Paso Corporation, the court stated that it would determine whether an ERISA plan was discriminatory on the basis of age by looking at whether the crediting of their pension plan was discriminatory rather than whether the resulting output from the plan was discriminatory.  The court was unpersuaded by the argument of the plaintiffs that, because they were older and had benefited from a more generous plan, they were discriminated against during the transition period because they effectively did not accrue benefits during the transition since they could choose between benefits of the new plan or the old plan and the older plan would be more generous for a number of years.  The court dismissed this argument by stating "we will not hold that an otherwise permissible plan discriminates against older employee merely because older employees are more likely to qualify for a greater benefit."

Friday, August 5, 2011

Tenth Circuit: In Order for Employees to Prevail on Freedom of Association Claims They Must Show that the Association Related to a Matter of Public Concern

On July 25, 2011, the Tenth Circuit Court of Appeals, the federal appellate court having jurisdiction over federal cases in Utah, decided an issue that had yet to be decided by that court---whether an employee claiming a violation of his or her right to association was required to show that the association involved an issue of public concern.  The court ruled that there must be a public concern showing.

In Merrifield v. Board of County Commissioners, a former Youth Services Administater in the Santa Fe County Youth Development Program claimed, among other things, that he was given the harsh discipline of termination because the County Commissioners were angry that he had hired an attorney to defend himself in his disciplinary hearing.  He therefore claimed that his First Amendment freedom of association had been violated.  In response, the County claimed that the administrator's claim was not valid because he had not shown that the association was centered around a matter of public concern.  Instead, the County claimed, it was an association related to a private employment matter.  The administrator claimed that to assert a freedom of association claim no relationship to a matter of public concern was necessary.  He additionally argued that, even if such a relationship was required, his concern was a matter of public concern because "the attorney-client relationship categorically qualifies as a matter of public concern."

The Court, acknowledging that it had never decided the issue and that other federal circuit appeal courts disagreed about the issue, decided that in freedom of association cases involving associating "for the purpose of engaging in speech, assembly, or petitioning for redress of grievances" the issue around which the association is concerned must be "'a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.'"  In making this decision, it left open the question whether the matter of public concern element would be required in questions of association related to "intimate human interactions" or "free exercise of religion."  The Court rejected the administator's contention that his case was a matter of public concern, holding that if the attorney-client relationship were an issue of public concern in this circumstance, all employee grievances would be turned into constitutional claims.


Utah Court of Appeals: Tattoo Parlor Not a Religious Entity Exempt from Unemployment Statutes

In Lowery v. Workforce Appeals Board, a tattoo parlor, Happy Valley Tattoo, claiming to be a religious entity affiliated with UBU Ministries that "considered tattooing to be one of its core religious tenets," asserted that it was exempt from Utah's unemployment insurance statutes.  Acknowledging that such an exemption exists, the Utah Court of Appeals held that the employer had failed to establish the necessary elements to establish the exemption, including exemption "under federal law."