Tuesday, December 29, 2009

COBRA Subsidy Extended

On December 19, 2009, President Obama signed the Fiscal Year 2010 Department of Defenses Appropriates Act . Although a defense appropriation bill, the legislation included provisions that extended and expanded the COBRA subsidy program that was enacted under the American Recovery and Reinvestment Act. Among other things, the bill provides that the COBRA premium subsidy is expanded from nine to fifteen months and extends the eligibility date to February 28, 2010.

Friday, December 11, 2009

What Are the Implications of the enactment of the ADA Amendments Acts?

The ADA Amendments Act of 2008 was promulgated in reaction to a line of Supreme Court cases that had substantially narrowed the class of individuals covered by the the Americans with Disabilities Act. In fact, the findings and purposes found in section 2 of the Act make specific mention of the cases to be abrogated and identify that the Congress intends the reasoning of each of the cases to be rejected and a more liberal reasoning to serve as the basis for all further analysis of whether a person is disabled.

What the amendments and the proposed regulations that have been promulgated since the amendments were adopted suggest is that the question of whether a person has a disability will be much less of an issue in future ADA cases. This is expressly what the amendments contemplate: "it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." In fact, the EEOC's proposed rules have incorporated this presumption and have explicitly identified a number of "impairments [that] will consistently meet the definition of disability:" autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

Wednesday, November 18, 2009

What is Actionable Retaliation Against a Public Employee for Exercising First Amendment Rights?

On Tuesday, November 17, 2009, the Tenth Circuit Court of Appeals---the federal appellate court having jurisdiciton over Utah---determined that the correct standard to be assessed on retaliation claims arising under the First Amendment is whether the alleged retaliatory actions are actions that "would deter a reasonable person from exercising his . . . First Amendment rights." In Couch v. Board of Trustees, the Tenth Circuit was asked to determine whether a doctor employed by a state hospital had suffered retaliation for expressing his support of a more stringent drug-testing policy. After he began advocating for such a policy and implicating certain doctors at the facility of having drug problems, he was the subject of investigations, was not reappointed to a seat on a committee, and administrative proceedings were instituted against him. Although the Court considered some of the actions as potentially retaliatory, it concluded in every instance that the motives for the actions were not a result of the doctor's advocacy but were the result of other unrelated incidents or events.

Monday, November 16, 2009

Salt Lake City Council Passes Non-Discrimination Ordinance Protecting From Discrimination on the Basis of Sexual Orientation or Gender Identify

On November 10, 2009, the Salt Lake City Council passed an ordinance banning certain employers from discriminating against employees or job applicants "because of a person's sexual orientation or gender identity." The ordinance does not give an employee a private right of action against an employer but permits a person to file a complaint with the City Administrator. After an investigation and conciliation efforts, the City can decide to file a claim against an employer found to have violated the ordinance. Employers of 50 or fewer employees are subject to a $500 fine while employer of 51 or more employee are subject to a $1000 fine for violations of the ordinance.

Wednesday, November 4, 2009

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.

Friday, October 30, 2009

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.

Tuesday, October 20, 2009

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.

Monday, October 19, 2009

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.

Thursday, September 24, 2009

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.

Wednesday, September 23, 2009

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.

Monday, September 14, 2009

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.

Tuesday, August 25, 2009

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.

Monday, August 24, 2009

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.

Friday, August 14, 2009

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.

Friday, July 31, 2009

An Employee Must Show Employer Knew Statements Were False or Recklessly Disregarded Truth in Making Defamation Claim.

In a decision issued July 31, 2009, the Utah Supreme Court ruled that in order for an employee to prevail on a defamation claim against his or her former employer, the employee must show that the employer knew the statements were false or acted in reckless disregard of the truth of the statement. The case, Ferguson v. Williams & Hunt, Inc., involved a law firm's termination of an employee at the firm. The employer conducted an investigation of the employee's billing practices when it noticed a substantial deviation in the billing practices of the employee and the absence of the employee from the firm at times he claimed he billed large amounts of time. The firm conducted an investigation. After doing so, it concluded that the employee had overbilled his largest client. Accordingly, it fired the employee and told his client that the firm could not trust the accuracy of his bills. The employee's client subsequently terminated its relationship with him.

The employee sued the firm for, among other things, defamation. He argued that the purported investigation of his billing practices was flawed and did not take into account time away from the office that he spent billing. The Utah Supreme Court ruled that, because under Utah law the employer had a conditional privilege in its communication with the client, the employee had to show that the firm actually knew the communication was false or that the firm was reckless in establishing the truthfulness of the claims. It therefore ruled that the employee had no claim because the employee did not establish that the statements were knowingly false or were made with reckless regard for the truth.

Who Has Jurisdiction to Determine Whether a City Employee is At-Will or Not?

In a decision filed July 30, 2009, the Utah Court of Appeals said that the proper place to appeal a city's employee appeal board's determination of the at-will status of one of its employees is a state district court. In Pearson v. South Jordan Employee Appeals Board, the Court stated that despite relevant statutory language authorizing a direct appeal to the Court of Appeals from any "final action or order of the appeal board," because the appeal board did not have statutory authority to review the determination of the at-will status of the employee, the only appeal proper venue to appeal that determination was the district court under the authority of a different statute.

What does this mean? It means if an appeals board determines that an employee is at-will, the employee must first appeal that decision to the district court. However, if the appeals board determines that an employee is not at-will and the employee loses his underlying appeal to the board on its merits, the employee must file the appeal with the Utah Court of Appeals.

Thursday, July 23, 2009

The Utah Court of Appeals Reverses City's Termination Decision for Failure to Give Adequate Notice.

On July 23, 2009, the Utah Court of Appeals reversed a decision by the Sunset City Appeal Board's affirming the termination of a police officer, declaring that Sunset City had failed to give the employee adequate notice when it sent notice only by certified mail. In Becker v. Sunset City, the Court explained that because the notice of the hearing was sent only one week before the hearing by certified mail which would require Mr. Becker to be at home at the time of delivery, the employee did not receive adequate notice. The Court held that the city was required to do more to ensure that the employee received actual notice such as "[s]ending the notice by both certified and regular mail, placing a phone call to inform Becker of the imminent hearing, or hand delivering a copy of the notice." The Court further found that Sunset City improperly refused to grant a continuance of the hearing under the circumstances.

Tuesday, July 21, 2009

Utah Supreme Court Affirms Labor Commission's Discretion in Partial Disability Determinations.

In LPI Services v. McGee, the Utah Supreme Court ruled on July 21, 2009, that the Labor Commission had discretion to make rules as to what the phrase "other work reasonably available" meant under the permanent total disability provisions of the Workers Compensation statute. The employer of a former employee who had been injured on the job argued that, because the legislature had specifically included at least five considerations the Labor Commission must assess, the Labor Commission was statutorily prohibited from considering any other factors. The Supreme Court rejected the argument concluding that the legislative history demonstrated that the five factors were not intended to be exclusive. Accordingly, the Court affirmed the finding of permanent total disability based upon an analysis that included factors in addition to the five identified in the statute.

Friday, July 17, 2009

Union Arbitration Award Successfully Vacated.

The Tenth Circuit Court of Appeals, the federal appellate court having jurisidiction over Utah, affirmed a district court's vacation of an arbitrator's award in a union dispute. While acknowledging that "judicial review of arbitral decisions is among the narrowest known to law," the Court in Air Methods Corporation v. Office and Professionl Employees International Union agreed with the trial court that the arbitrator had incorrectly awarded relief to the Union. Specifically, the court stated that the arbitration award "did not draw its essence from the [collective bargaining agreement] because it was contrary to the express language of the contract and [was] without factual support in light of the working and purpose of . . . the agreement as shown by the language, context, past practice, and negotiating history."

This case is noteworthy because vacating an arbitrator's award is an extremely rare occurrence.

Monday, July 13, 2009

Are You Ready for the New Minimum Wage? (Corrected)

As many employers know, July 24th is an important date. Due to amendments that occurred within the last couple of years, the minimum wage payable to employees will be increasing on that date. On July 24, 2009, the rate will increase to $7.25 per hour.

Wednesday, July 8, 2009

Act Intending to Increase Warning of Layoffs Introduced.

On June 25, 2009, legislation was introduced in the Senate and the House to amend the Worker Adjustment and Retraining Notification Act (WARN). The Act entitled the FOREWARN Act would now require employers of 75 employees (rather than 100 under the WARN Act) to warn employees of potential layoffs of 25 or more workers (the WARN Act had the threshold at 50 workers) more than 90 days (up from 60 days under the WARN Act) before the layoffs are to occur. The Act also increases penalties to double back pay.

Employee Free Choice Act of 2009

A recent visitor to this blog asked a question about the Employee Free Choice Act of 2009.

Dear Mr. Crook:

Any updates on the Employee Free Choice Act?


Would you be able to comment on how this act may affect public employers? If passed, would it make it nearly impossible for public employers to keep unions out? I've read where "newly certified unions would enter binding arbitration if they cannot reach agreement on an initial contract after 90 days of negotiations."

Thank you!

Signed,

Very Concerned HR Professional


The Employee Free Choice Act of 2009 was introduced in the House as H.R. 1409 and in the Senate as S. 560. The legislation amends the National Labor Relations Act (NLRA) in an attempt to make it easier for employees to form or join a labor union at their place of employment by allowing certification of a Union without a secret-ballot election if "a majority of the employees in a unit appropriate for bargaining has signed valid authorizations." The legislation further requires an arbitration panel to resolve any dispute that prevents the entry of a collective bargaining agreement within 120 days of a newly formed unit. The legislation also strengthens enforcement mechanisms to protect against employer violations of the NLRA during the formation process.

The legislation has been referred in the House to the House Subcomittee on Health, Employment, Labor, and Pensions and in the Senate to the Committee on Health, Education, Labor, and Pensions.

The legislation does not affect public employers at all since it does not include any language expanding the NLRA's reach to federal or state governments or their agencies.

Monday, June 29, 2009

Supreme Court Rules that City Violated Title VII When It Threw Out Test Results Because of Its Fear of Violating Title VII.

In an opinion issued today entitled Ricci v. DeStefano, the United States Supreme Court ruled that the city of New Haven, Connecticut violated Title VII when it "threw out" promotional examination results after it discovered that the results disproportionately favored non-minority test takers.

Although the city had carefully planned the test and hired an organization to design the test to assure racial neutrality, the test results showed a significant disparity in results. There was no question that the results established a prima facie case of disparate-impact discrimination---a policy or practice that produces a disparate impact on a protected minority group. There was also no question that throwing the test results out would constitute disparate treatment discrimination because it would harm successful test takers based solely on their race, i.e., because they were white and received a high score, there test results would be thrown out. This put the city in an uncomfortable position---it had to determine whether to throw-out the test results and risk a lawsuit by the successful applicants for disparate-treatment discrimination or certify the test results and risk a lawsuit by the unsuccessful applicants for disparate-impact discrimination. The city chose the former and risked the lawsuit with the successful applicants.

Thus, the question for the Supreme Court was "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination."

The Court answered the question in this way: "[B]efore an employer can engage in intentional discrimination for the asserted purposes of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action." In other words, there must be strong evidence to support the fear of liability for the disparate results complained of before an employer may take any race-conscious action.

In this case, the Court ruled that the city of New Haven did not have strong evidence of such liability and, therefore, ruled that the act of throwing out the tests was a violation of Title VII.

Friday, June 19, 2009

United States Supreme Court Rules that to Prove Age Discrimination Age Must Be More than Just a Motivating Factor

On Thursday, June 18, 2009, the United States Supreme Court ruled that in order to prove age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), a person must prove more than that age was a "motivating factor." Instead, the Court stated in its opinion entitled Gross v. FBL Financial Services, Inc., that "a plaintiff must prove by a preponderance of the evidence . . . that age was the 'but-for' cause of the challenged employer decision." In other words, "that age was the 'reason' that the employer decided to act." This decision sets ADEA claims apart from discrimination claims brought under Title VII, which allow people to bring claims if race, color, sex, religion, or national origin was simply "a motivating factor for any employment practice, even though other factors also motivated the practice."

Thursday, June 4, 2009

Utah Court of Appeals Affirms Penalty for Fraud in Unemployment Application.

On June 4, 2009, the Utah Court of Appeals affirmed the Department of Workforce Services' assessment of a penalty against an unemployment benefits recipient who failed to disclose that she worked during weeks in which she received unemployment benefits. In Mugleston v. Department of Workforce Services, the Court ruled that despite the recipients claims that "she did not knowingly submit incorrect information," the recipient "was accountable for the information in the claimant guide and the information presented to her in the initial claim instructions," which both notified her "that she was required to report work performed, regardless of when she was paid for such work." The Court agreed that the woman had willfully misrepresented or concealed the information.

Wednesday, June 3, 2009

Interesting and Funny Employee Orientation Videos.

I thought it might be interesting to take a break from the more mundane employment law topics for a change. In preparing for employee training for one of my clients, I recently did a search of You Tube to find some entertaining and/or funny employee orientation videos. I was able to find a few I thought were entertaining. Enjoy.


Tuesday, June 2, 2009

When is a Sarbanes-Oxley Retaliation Claim Timely?

In Rzepiennik v. Archstone-Smith, Inc., the Tenth Circuit Court of Appeals, the federal circuit having jurisdiction over Utah, considered the question of when a retaliation claim under the Sarbanes-Oxley Act (SOX) is considered timely. The employee in the case contended that his employer had retaliated against him when he reported financial irregularities internally by terminating his employment. After his termination and during an investigation of the claims, he alleged that his employer offered him an incentive bonus of $255,589 for his work only if he agreed "1) not to disclose to any person or regulatory agency the facts about the alleged fraud or [the employer's] investigation, and 2) to return to [the employer] all documents and copies he possessed relating to his allegations." This offer was made on August 20, 2003, and it gave him 21 days to accept the terms. On September 12, 2003, he attempted to negotiate the terms but the employer refused to change the terms.

On December 15, 2003, he filed a complaint with the Occupational Safety and Health Administration (OSHA), the agency responsible for SOX compliance. The Court ruled that the filing was late because it had been more than 90 days---the statute of limitations time period---since the illegal offer was made. The employee, among other things, contended the proper trigger date was September 12, 2003, the date the offer expired and the date of his negotiations with the employer. The Tenth Circuit rejected that argument, ruling that the discriminatory act was the employer's illegal offer and it was made on August 20, 2003. The Court also considered and rejected the argument that the Lilly Ledbetter Fair Pay Act applied to SOX violations.

Monday, June 1, 2009

Utah Employment Selections Procedure Act Amended.

The Utah Employment Selections Procedure Act was amended in the recent special legislative session. The amendment clarifies and expands the times that birthdates, social security numbers, and drivers license numbers can be requested. However, the law continues to restrict the use of this information and continues to require a document retention policy.

Friday, May 29, 2009

Are Your Background Checks Done Properly?

Many employers use background checks to investigate the background of their employees who have fiduciary obligations, such as money management, driving duties, or have high-profile positions with the company. The Fair Credit Reporting Act applies to any of these background checks performed by a consumer reporting agency for an employer. The act requires that, if an employer intends to do a background check, the employer must notify the person in writing—in a document consisting only of the notice and nothing else—that a report may be used. The person must also authorize the procurement of the report.

If an employer determines to refuse to hire a person on the basis of a background report, before it takes any action it must give the person a pre-adverse action disclosure which includes a copy of the report and a written description of the rights that person has under the Fair Credit Reporting Act. After the adverse action is taken, an employer must also (1) provide oral, written, or electronic notice of the adverse action, (2) provide the applicant the name, address, and telephone number of the consumer reporting agency that furnished the report and a statement that the consumer reporting agency did not make the decision and is unable to provide the specific reason for the adverse action, and (3) provide the applicant a notice of his or her right to obtain a free copy of the report for 60 days and the right to dispute with the consumer reporting agency the accuracy or completeness of the information furnished by it.

In Utah, an employer must also have a retention policy that provides for the destruction of any information gleened from a background check for its applicants who are not hired.

Wednesday, May 20, 2009

United States Supreme Court Agrees that Pension Plan that Pays Benefits based on Unequal Credits Given to Pregnant Women is Lawful.

On Monday, May 18, the United States Supreme Court ruled that a pension plan that paid out benefits to pension receipients based upon calculations that did not equally credit women who had taken pregnancy leave prior to the Pregnancy Discrimination Act (PDA) were not presently violating the Pregnancy Discrimination Act. The Court explained in its decision, AT&T Corporation v. Hulteen, that the pension plan at issue was paying out benefits based upon an employee's term of employment. In this case, the parties bringing the claims were receiving benefits for a term that included pre-PDA calculations. During that pre-PDA period, these pension recipients were not credited equally for leave that they took while they were pregnant. After the PDA, such unequal crediting would violate the Act; however, before the PDA was enacted, the Supreme Court had explicitly concluded that such unequal crediting was lawful. Under these circumstances, the pension recipients argued that by paying pensions based on these pre-PDA crediting rules, the pension plan was violating the law.

The Supreme Court held that the pension plan had not violated the PDA. The main reason for the Court's decision was that the existing law explicitly allows "bona fide seniority . . . system[s]" to "apply different standards of compensation . . . provided that such differences are not the result of an intention to discriminate." Because the Court concluded that the pre-PDA crediting were adopted at a time when such crediting was not illegal, the crediting was not a result of an intention to discriminate. Additionally, the Court ruled that the pension plan's payment system did not itself have discriminatory payment rules---it was merely paying out based upon a formula that did not itself discriminate.

Interestingly, the Court considered the effect that the passage of the Lilly Ledbetter Fair Pay Act had on its decision and determined that the recent passage of the Act did not change its conclusion.

Tuesday, May 19, 2009

New Whistleblower Protections!

The Stimulus Package that was enacted in February, otherwise called the American Recovery and Reinvestment Act of 2009, provides sweeping whistleblower protections to any employee of an employer who receives any stimulus money. The protections found in section 1553 of the Act prohibit any demotion, discharge, or other discrimination of an employee when he or she has disclosed "gross mismanagement" of a grant or public contract, "gross waste" of stimulus funds, "substantial and specific danger to public health or safety related to the implementation or use of" the funds, "an abuse of authority related to the implementation or use of covered funds," or "a violation of law, rule, or regulation" related to the use of the funds.

The law presumes that a prohibited act is related to the disclosure if the retaliating person knew of the disclosure or the reprisal occurred closely after the disclosure was made. This presumption can only be overcome by clear and convincing evidence that the employer would have taken the action even without the disclosure.

The protections give an offended employee the right to reinstatement, damages, and attorney fees, costs, and expert witnesses' fees. Further, a pre-dispute arbitration agreement is unenforceable to avoid court.

Wednesday, May 13, 2009

Have Employers Updated their COBRA Notices?

Section 3001 of the American Recovery and Reinvestment Act of 2009 that was enacted by Congress in February 2009 provides that for certain eligible employees who were involuntarily terminated between September 1, 2008, and December 31, 2009, an employer must cover 65% of COBRA continuation coverage premiums, which employers may then take as a tax credit. This is a substantial change from the regular provisions of COBRA, which allowed employers to require qualified employees to pay 100% of the premiums. The law requires employer's to notify employees of this change in the law if they lost their jobs prior to the law's effective date.

Failure to Update Employment Application Process Could Be Big Problem for Utah Employers.

The new Employment Selection Procedures Act became effective yesterday, May 12, 2009. As discussed in an earlier post, the Act requires an employer to "maintain a specific policy regarding the retention, disposition, access, and confidentiality of information" gathered in the "initial selection process," i.e, the application process. In fact, the new law requires that an employer have a copy of the policy readily accessible to any applicant who wishes to see the policy before filling out an application. The policy also requires that all records obtained during the application process be destroyed within two years unless another statute requires their retention. The law also restricts employers from asking for an applicants birthdate, social security number, or drivers license number until the applicant is offered a job or "the time in the employer's employment selection process when the employer obtains" certain background tests. It further restricts employers from using any information on an application for any other reason other than determining whether to hire the person, including sending them advertisements.

If employers have not taken measures to comply with the law, they are now subject to employer to fines and civil damage remedies for the applicants.

Wednesday, April 29, 2009

Utah Statute Reducing Workers Compensation Benefits for Social Security Retirement Benefits Found Unconstitutional.

In Merrill v. Utah Labor Commission, the Utah Supreme Court ruled that the Utah Workers Compensation statutory provision that requires the reduction of workers compensation benefits by 50% of the Social Security retirement benefits received by an injured worker was unconstitutional under the "uniform operations of law" clause or article I, section 24 of the Utah Constitution. Although the Court pointed out in its opinion that several other states' supreme courts had determined that such a legislative policy did not violate similar constitutional provisions, the Utah Supreme Court concluded that it was simply "not rational" for the legislature to offset workers compensation benefits with social security retirement benefits.

Thursday, April 23, 2009

Utah’s Public Employers Are Not Required to Withhold Voluntary Political Contributions from Their Employees’ Paychecks

In Utah Education Association v. Shurtleff, the Tenth Circuit vacated its prior decision and upheld Utah’s Voluntary Contributions Act, which provides that a public employer cannot withhold from its employees’ paychecks any voluntary political contributions, including contributions to unions.

The Tenth Circuit initially agreed with the district court that the Act was unconstitutional because it violated public employees’ First Amendment rights. However, after the Tenth Circuit granted Utah’s petition for a rehearing, the United States Supreme Court, in Ysursa v. Pocatello Education Assoc., 129 S. Ct. 1093 (2009), upheld the validity of Idaho’s similar Voluntary Contributions Act. In Ysursa, the Supreme Court stated that a state “is not required to assist others in funding the expression of particular ideas, including political ones.” As a result, states are not required to “assist political speech by allowing public employers to administer payroll deductions for political activities.”

Based on the U.S. Supreme Court’s ruling, the Tenth Circuit stated it was obligated to vacate its prior decision and uphold the constitutionality of the Act because Utah and its political subdivisions, including cities, school districts, and special service districts, are “under no obligation to aid the Unions’ exercise of their First Amendment rights utilizing payroll systems.” This means that for any payroll deduction agreements entered into after 2001, the year the Act was enacted, the public employer is barred from withholding voluntary political or union contributions.

Be Careful When You Negotiate Severance Agreements!

In Creative Consumer Concepts, Inc. v. Kreisler, the Tenth Circuit---the federal court having jurisdiction over Utah---discussed several evidentiary matters arising out of a severance agreement gone bad. Creative Consumer Concepts, Inc., terminated the employment of one of its vice presidents in 2004. In terminating the relationship, the company offered the vice president a severance agreement. The severance agreement proposed by the company included a provision that waived all claims the vice president had against the company. Unbeknownst to the company, before signing the document, the vice president had changed the language of the release to include a release of any company claims against the vice president. Of course, the former vice president did not disclose the change, and the company official signing the document did not carefully review the agreement when she signed it on behalf of the company.

After the company discovered that the former vice president had embezzled almost a million dollars, it discovered the change in the language but nevertheless brought suit against the former vice president. The former vice president attempted to avoid liability by claiming the waiver was valid. The Tenth Circuit upheld several evidentiary rulings of the trial court that allowed the company to proceed and prevail against the vice president.

This case illustrates the importance of carefully reviewing and negotiating any severance agreements.

Monday, April 20, 2009

The Importance of Employer Record Retention and Destruction.

Many people will dismiss recordkeeping as a less-than-important topic that can easily be discussed in a few minutes at the beginning of a relatively short staff meeting. No matter how prevalent this view, it is wrong. In fact, aside from responsibilities that businesses have to keep records about contractual and formation issues, businesses that employ others have significant and important statutory and regulatory responsibilities with respect to their records. Improper or faulty recordkeeping practices subject employers to enormous potential liabilities. On the other hand, good recordkeeping practices can reap significant benefits for an employer.

For instance, private-sector employers who regularly employ more than fifteen employees in a given year and public-sector employers have a statutory and regulatory obligation to preserve certain records related to their hiring and employment practices. 42 U.S.C. § 2000e-8(c); 29 C.F.R. §§ 1602.12, 1602.14, 1602.31. An employer’s failure to preserve those records can lead to legal sanctions in a lawsuit brought against the employer for discriminatory conduct, such as being required to paythe opposing party’s attorney fees. See Broccoli v. Echostar Communications Corp., 229 F.R.D. 506, 514 (D. Md. 2005) (awarding attorney fees for failure to preserve documents relevant to a wage claim and Title VII discrimination and retaliation claim). In other cases, litigants have been sanctioned millions of dollars for “spoliation of evidence” for destroying evidence in cases brought against them. See, e.g., In re Prudential Ins. Co., 169 F.R.D. 598, 617 (D. N.J. 1997) (imposing sanction of $1,000,000 for destruction of documents in a class-action claim against Prudential). Other potential sanctions against an employer who fails to preserve documents include (1) exclusion of relevant evidence, (2) an inference that the documents destroyed were harmful to the employer, (3) default judgment, or (4) contempt sanctions. See Fed. R. Civ. P. 37; Utah R. Civ. P. 37; EEOC v. Jacksonville Shipyards, Inc., 690 F. Supp. 995, 997-98 (M.D. Fla. 1988) (applying Rule 37 analysis in case where party failed to preserve records as required by EEOC regulations).

Aside from the prophylactic reason of avoiding sanctions in litigation, there are several reasons to keep good and accurate employee records. The first reason is related to litigation—records are often the best defense against claims brought by employees against employers. If an employer is careful to document a history of performance problems, for example, it may be able to easily overcome a wrongful termination claim brought by an employee.

Additionally, the law requires that employers keep certain records. Federal and state anti-discrimination laws require most employers to keep records of employee selection, promotion, demotion, reduction in force, and termination. Additionally, labor and immigration statutes require an employer to keep proof of an employee’s eligibility for employment in the United States. Further, federal and state statutes require the maintenance and preservation of records of employee tax withholdings, payroll payments, salary and wage information, and tip income.

Further, records help employers manage their employees and plan for the future. Accurate and careful records will show trends that an employer can use for strategic purposes.

For a more thorough discussion of these issues and a document retention schedule, please see the complete article: Best Practices for Employee Recordkeeping.

Friday, April 17, 2009

Does Relatively Minor Sexually Harassing Behavior Trigger an Employee's Duty to Report the Conduct?

In a case decided on Thursday, the Tenth Circuit Court of Appeals---the appellate court having jurisdiction over Utah--- upheld the dismissal of a complaint brought by a woman against the Colorado Department of Transportation for sexual harassment and retaliation she claimed occurred while she was working for the agency as an administrative assistant. In the case entitled Pinkerton v. Colorado Department of Transportion, the Court considered, among other things, whether the employee had been unreasonable when she did not immediately report the first potentially sexually-charged remarks she heard to the appropriate officials. The Court held that she had an obligation to immediately report the first inappropriate remarks that her supervisor made---even when those remarks were immediately rebuffed and when there is no question that they would not have immediately been considered intolerable enough to constitute a hostile work environment. In a dissenting opinion, one of the judges pointed out that because "the first statement . . . was not sufficient to create a hostile work environment," it was simply wrong for the majority to conclude that the employee had been unreasonable in delaying the reporting of the conduct.
This decision appears to be a boon for employers. As written, the opinion seems to suggest that an employee must report every instance of potentially harassing behavior even when the behavior is relatively minor.

Monday, April 13, 2009

Fair Employer Investigations of Workplace Misconduct.

It happens to every employer. At some point, an employee comes to a manager, supervisor, or owner and explains that a coworker, or worse, a supervisor, has done something that the reporting employee does not like. The offensive conduct can be as minor as an employee showing up late or as serious as sexual misconduct. When the employee reports the problems, he or she usually wants a resolution. Most often the employee wants the resolution quickly. Often the issue can be resolved with a simple discussion. On other occasions, such as when an employee reports illegal activity, a more thorough investigation is often warranted. In fact, in some situations, an investigation will serve as a strong potential defense against claims of illegal practices.

Many claims warrant more thorough investigations. One such situation includes claims of sexual harassment. In 1998, the United States Supreme Court, in two separate cases decided on the same date, declared that an employer sued by an employee for claims of sexual harassment resulting in “no tangible employment action” can raise an affirmative defense that includes as elements the employer’s use of “reasonable care to . . . correct promptly any sexually harassing behavior” and the employee’s unreasonable failure “to take advantage of any . . . corrective opportunity provided by the employer.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Reasonable corrective actions include internal investigations of the complaints. Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors § V.C.1 (June 18, 1999). Additionally, it may be unreasonable for an employee to refuse to participate in such an investigation. Other situations that may warrant more thorough investigations include claims that an employee has violated the law in such a way that the employer could be liable for the employee’s conduct, claims that an employee has stolen from the employer, or claims that could result in the dismissal of an employee who has a contractual restriction on the employer’s right to terminate his or her employment, such as union employees, or employees with a just-cause employment contract, or civil service employees.
Once an employer has determined to conduct an investigation, the employer must be careful to conduct a good investigation. Mistakes in investigations or in the conduct of an investigation can often lead to employee discontent or, in the worst case, additional legal violations. The hallmarks of a good investigation include the following:

An Objective Investigator. Most employees will view the selection of the investigator as the clearest sign of how seriously the employer is taking the claim. An investigator should never be a person who is claimed to have engaged in the conduct or to be associated with the underlying facts of the investigator. An independent human resource employee who is not below the alleged perpetrator in the supervisory chain is a good choice. For particularly sensitive matter or matters that are likely to end up in litigation, an outside investigator or lawyer may be the best choice.

Appropriate and Timely Process. The process should be appropriate to the claim made. Additionally, the process should be conducted in as expedient a manner as is appropriate. A quick response, coupled with the appropriate level of investigation, increases the perception of fairness.

Objective Inquiries. An investigator should always conduct an interview or request statements from the person making the allegations. He or she should then speak with others who are also witnesses. Additionally, the investigator should assure all witness that there will be no retaliation for the statements that they make. At the same time, the investigator should inform the witnesses that it is a serious matter that should not be taken lightly. The questioning should be with open-ended questions requiring narrative responses as opposed to questions that suggest an answer. The investigator should not comment on any aspect of the investigation with the witnesses.

Keep Good Records. An investigator should record every interview if possible. Additionally, an investigator should keep good notes, making sure that the notes reflect suppositions and guesses.

Thursday, April 9, 2009

Discrimination Case Litigants Do Not Have a Constitutional Right to Effective Assistance of Counsel on Employment Claims.

The Tenth Circuit Court of Appeals---the federal court with jurisdiction over Utah---reaffirmed the longstanding principle that a litigant in a discrimination case does not have a constitutional right to effective assistance of counsel. In Grisby v. Boeing Corporation, the Court stated that the United States Constitution does not guarantee a civil litigant a right to effective assistance of counsel. It reaffirmed that the proper course for civil litigants to pursue for relief against allegedly ineffective attorneys is to bring malpractice claims.

Wednesday, April 8, 2009

Medical Benefits Must Be Apportioned in Occupational Disease Claims

The Utah Supreme Court issued two cases on Tuesday that reversed the Utah Labor Commission's interpretation of the Utah Occupational Disease Act. The Labor Commission had interpreted the act to provide that an employer was required to reimburse 100% of an employee's medical expenses for a condition caused by an occupational disease even if the employee's work was only a contributing factor to the development of the disease. For example, if an employee suffered carpal tunnel syndrome and it was determined that the workplace contributed only 10% to the development of the condition, the Utah Labor Commission required the employer to pay 100% of the medical expenses.

In two companion cases, Smith v. Utah Labor Commission and Ameritech v. Utah Labor Commission, the Utah Supreme Court said the Labor Commission was wrong, and the Court interpreted the statute to require the employer to only pay its proportionate share of the medical expenses.

Thursday, April 2, 2009

New Utah Law: Employers Must Create a Job Application Retention Policy or be Subject to a Fine!

The Utah legislature passed a sweeping new law applicable to all employers who employ more than fifteen employees. The Employment Selection Procedures Act, which Governor Huntsman signed on March 24, 2009, requires an employer to "maintain a specific policy regarding the retention, disposition, access, and confidentiality of information" gathered in the "initial selection process," i.e, the application process. In fact, the new law requires that an employer have a copy of the policy readily accessible to any applicant who wishes to see the policy before filling out an application. The policy also requires that all records obtained during the application process be destroyed within two years unless another statute requires their retention.

The law also restricts employers from asking for an applicants birthdate, social security number, or drivers license number until the applicant is offered a job or "the time in the employer's employment selection process when the employer obtains" certain background tests. It further restricts employers from using any information on an application for any other reason other than determining whether to hire the person, including sending them advertisements.

The failure to comply with the law subjects the employer to fines and civil damage remedies for the applicants.

Wednesday, April 1, 2009

The Supreme Court Upholds Mandatory Arbitration of Age Discrimination Claims in Union Contract.

In a decision issued today, 114 Penn Plaza LLC v. Pyett, the United States Supreme Court ruled that "a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate [Age Discrimination in Employment Act] ADEA claims is enforceable as a matter of law." In doing so, the Court acknowledged that it had previously expressed hostility toward mandatory arbitration clauses in discrimination cases. However, it noted that such hostility was a relic of history. While further acknowledging that a Union's ability, as opposed to an individual union member's ability, to exclusively control the negotiation of a collective bargaining agreement may place the individual union member at a disadvantage to assert his or her own rights, the Court found that such a concern did not create "a source of authority for introducing a qualification into the ADEA that is not found in the text." Accordingly, it ruled that the union members in this particular case had waived their right to bring their ADEA claims in federal court.

Monday, March 30, 2009

New Utah Laws that Affect Employers and Employees (Revised).

The Utah Legislative Session ended earlier this month and the Governor has signed many of the bills that passed. Following is a list of legislation that may have an impact on employers and employees. (For a link to the language of the relevant bill language as passed, click here.)

House Bills:

House Bill 12, County Sheriff Qualifications Amendments. Again although not a bill generally applicable to all employers, it is an important bill for counties. It provides new certification requirements for county sheriffs elected after the 2008 general election.

House Bill 39, Utah Injured Worker Reemployment Act. This act amends particular portions of the Workers Compensation statute related to the rehabilitation and reemployment of injured employees. It amends and restructures the existing Utah Injured Worker Reemployment Act and includes reporting requirements for rehabilitation efforts made by employers and insurers. It provides for the Division of Industrial Accidents to make rules and regulations consistent with the statute. It further clarifies the process for making referrals and initial reports of rehabilitation efforts. It also clarifies provisions related to a rehabiliation counselor and extends the sunset date of the statute to July 1, 2014.

House Bill 86, Division of Real Estate Related Amendments, will affect real estate brokers who employ or contract with real estate agents. It will also affect appraisors who employ or contract with other appraisors. Among other things, it modifies education and reporting requirements for real estate brokers and sales agents, requires criminal background checks for real estate appraisal trainees and modifies license and certificate renewal requirements for appraisors.

House Bill 91, Individual Development Account Amendments, proposes to add additional benefits for workers looking for work. It provides for an individual development account for individuals with disabilities to accumulate funds to allow them to buy technology, make modifications to cars, and improve their homes to allow them to participate in work-related activities.

House Bill 96, State Retirement System Participation for Charter Schools, allows Charter schools to elect to allow their employees to participate in the state retirement system despite an ealier election not to participate.

House Bill 144, Medical Language Interpreter Act. This bill provides certification for certain types of medical language interpreters and criminalizes a person's representation that he or she is a certified medical language interpreter if he or she is not.

House Bill 157, County Hospital Retirement Provisions. This bill modifies the Utah State Retirement and Insurance Benefit Act to allow certain employer and employees to be excluded from participation in certain retirement systems.

House Bill 174, Licensing of Vocational Rehabilitation Counselors. This bill provides for the licensing of vocational rehabilitation counselors by the Division of Occupational and Professional Licensing.

House Bill 206, Employment Selection Procedures. This bill restricts an employer from asking for a job applicants social security number, birth date, or drivers license number until the person is offered a job or when the employer does a background check. Also, it restrict an employer from using the information in any way other than for the screening for selection. It also places a time limit on an employer to retain the information.

House Bill 218, Family Employment Program Amendments, requires the Department of Workforce Services (Unemployment) to make a rule for the amount of cash assistance a participant is eligible to receive under the Family Employment Program.

House Bill 264, Educator Evaluation Amendments. This bill proposes to change the requirements for educator evaluations.

House Bill 271, Workers' Compensation-Uninsured Employers' Fund. This bill proposes to change certain collection practice of the Uninsured Employers' Fund.

House Bill 291, County Personnel Amendments. This bill proposes to extend the probationary period for a county employee to 270 day and eliminates a county's ability to extend the probationary period.

House Bill 296, Schools for the Deaf and Blind Amendments. This bill clarifies that the School for the Deaf and Blind is subject to the Utah State Personnel Management Act.

House Bill 308, Workers' Compensation - Motor Carriers. This bill modifies the Workers Compensation Act to address the independent contract status for purposes of workers' compensation of individuals operating under an agreement with a motor carrier.

House Bill 328, Teacher Quality Amendments. This bill provides funding to award grants to public schools to create pilot programs for the implementation of performance-based compensation plans for elementary school teachers.

House Bill 331, Health Reform - Health Insurance Coverage in State Contracts. This bill proposes to require certain state entities who contract with third parties to require that the contractors offer qualified health insurance coverage during the duration of the contract.

House Bill 345, Elected Officials - Restrictions on Lobbying. This bill proposes to restrict elected officials' ability to act as a lobbyist after leaving office.

House Bill 356, Barber, Cosmetologist/barber, Esthetician, Electrologist, and Nail Technician Licensign Act Amendments. This bill modifies qualifications, definitions, apprenticeship and professional rules for the professions.

House Resolutions:

House Joint Resolution 15, Joint Resolution Approving Compensation of In-Session Employees. The resolution sets the compensation for House In-Session Employees.

House Joint Resolution 29, Legislative Direction to the Public Employees' Benefit and Insurance Program.

Senate Bills:

Senate Bill 15S01, Workers' Compensation Premium Assessment and Related Funding.

Senate Bill 31, Utah Residential Mortgage Practices and Licensing Act. This bill makes changes to licensing, continuing education, and professional rules of residential mortgage brokers and agents.

Senate Bill 39, Immigration Amendments. This bill makes amendments to the Identity Documents and Verification Act. It clarifies that no local public entity may enter into a contract through a request for proposal process with a contractor who has failed to register and participate in an approved Status Verification System, such as the federal E-Verify program. It also provides that an individual need not verify lawful presence in the country to receive benefits under the Utah State Retirement and Insurance Benefit Act.

Senate Bill 120, Workers' Compensation Act - Medical Reports. This bill makes changes to the delivery of medical reports under the Workers' Compensation Act.

Senate Bill 121, Workers' Compensation - Attorney Fees. This bill proposes changes to the determination of the award of attorney fees in Workers' Compensation cases.

Senate Bill 126, State Personnel Management Act Amendments. This bill proposes to allow a department head to disapprove the reappointment of an employee from a reappointment register.

Senate Bill 127, Retirement Amendments. This bill modifies the Utah State Retirement and Insurance Benefit Act by amending provisions related to the retirement systems.

Senate Bill 137, Physical Therapy Practice Act. This bill establishes and modifies licensing provisions for physical therapists.

Senate Bill 139, Employer Election Retirement Amendments. This bill modifies the Utah State Retirement and Insurance Benefit Act by adding certain conversion windows.

Senate Bill 145, Public Safety Retirees Death Benefit Revisions. This bill modifies the Utah State Retirement and Insurance Benefit Act by amending death benefit provisions for the public safety and judges contributory and noncontributory systems.

Senate Bill 163, Construction Trade Exemption. This bill provides an exemption from licensure for electrical and plumbing work done on building projects with a value of less than $3000.

Senate Resolutions:

Senate Concurrent Resolution 1, Concurrent Resolution Requesting a Federal Waiver to Establish an Employer-Sponsored Work Program, urges Congress to grant Utah a waiver to allow it to institute an employer-sponsored work program providing a two-year, renewable guest worker authorizaton for foreign workers and undocumented immigrants currently residing in the state and allowing employers to withhold federal FICA and Medicare revenue to apply it toward the health insurance and other administrative costs of the program.

Have the Family and Medical Leave Act Amendments Been Adopted at your Workplace as Required?

As many employers know, the Family and Medical Leave Act was recently amended and the amendments became effective January 16, 2009. The most significant of these changes was to allow military caregivers up to 26 weeks a year of unpaid leave to assist with the care of an injured military member. Other changes included FMLA notice posting requirements, appropriate procedures for employees to notify employer's of their use of FMLA leave, medical certification processes, and timelines for visits to health care providers that will qualify a condition for consideration as a serious health condition. If an employer has not had their FMLA policies reviewed recently, it is important for such a review to occur to assure that the employer is compliant with the FMLA provisions.

Are You Ready to Use the New I-9 Beginning April 3rd?

Beginning April 3, 2009, all Employers are required to use the new I-9 form prepared by the U.S. Citizenship and Immigration Services (USCIS). Although the USCIS had originally intended to mandate the use of the form in February, the effective date was changed to April 3, 2009. After April 3rd, employers using the wrong form will be subject to civil and adminstrative penalties.

Wednesday, March 25, 2009

"General Contractor, Did You Know You May Have to Provide Workers' Compensation for your Subcontractors?"

In Workers' Compensation Fund v. Wadman Corp., a decision issued by the Utah Supreme Court yesterday, the Court decided that a general contractor was the "statutory employer" of a subcontractor's employee for purposes of workers' compensation coverage. Although the case presented a unique set of facts, the decision illustrates the necessity for general contractors to assure that their subcontractors have independent workers' compensation coverage for their own employees.

Monday, March 23, 2009

"Go Back to Mexico" Comments Evidence of National Origin Discrimination

The Tenth Circuit Court of Appeals---the circuit having jurisdiction over Utah---held on March 19, 2009, in a case entitled Avila v. Jostens, Inc., that a supervisor's statement to an employee that he "should get out of the country if he couldn't speak English" at approximately the time the employee was fired was "circumstantial evidence of discriminatory animus." Those remarks together with the supervisor's apparent campaign to leave a trail of disciplinary measures was sufficient to state a claim of national origin discrimination and retaliation after the employee complained. This was especially true after the same supervisor had given the employee an "exceptional" ranking on his annual job evaluation.

Monday, February 23, 2009

More Utah Legislation that May Affect Employers and Employees

As has been discussed in earlier posts, the Utah legislature is considering many bills and resolutions that may have impact on Utah employers and employees. Here are additional bills:

House Legislation:

House Bill 331, Health Reform - Health Insurance Coverage in State Contracts. This bill proposes to require certain state entities who contract with third parties to require that the contractors offer qualified health insurance coverage during the duration of the contract.

House Bill 345, Elected Officials - Restrictions on Lobbying. This bill proposes to restrict elected officials' ability to act as a lobbyist after leaving office.

House Bill 454, Small Employer Group Reinsurance Pool. This bill amends the Insurance Code to establish a reinsurance pool for small employer group health insurance and defined contribution arrangement market.

House Joint Resolution 25, Joint Resolution Urging Employers to Hire Only Individuals who are Authorized to Work in the United States. The resolution urges employers to hire only individuals who are authorized to work in the United States.

Senate Legislation:

Senate Bill 194, Nondiscrimination Amendments. The bill proposes to include a person's military service status as a factor that cannot be considered by employers in making employment decisions. Besides prohibiting most employers in the state from discriminating on the basis of military service, the bill proposes to make sweeping amendments to the statutes governing employment of state employees, county employees, and local district employees.

May Employers Be Forced to Allow Employees to Store Weapons on Employer Property?

In Ramsey Winch Inc. v. Henry, the Tenth Circuit (the federal court having jurisdiction over Utah) ruled last week that a district court had erred when it held that a newly enacted Oklahoma statute making it a criminal offense for employers to prohibit employees from storing firearms in their vehicles on company parking lots was preempted by federal law and therefore unenforceable. The Tenth Circuit ruled that because the Occupational Safety and Health Administation had not acted to identify workplace violence as a serious safety and health issue or as a recognized hazard, the district court had incorrectly concluded that Oklahoma's statute impermissibly conflicted with OSHA standards. The court also ruled that the Oklahoma statute did not constitute an unconstitutional taking of property nor did it constitute a violation of the employers' due process rights. Thus, the Tenth Circuit reversed the district court's decision and removed the injunction blocking the application of the law.

When is Action by an Employer Harmful to the Point that It Dissuades a Reasonable Worker from Complaining?

The Tenth Circuit (the federal appeals court having jurisdiction over Utah) decided last week that three employees did not have a retaliation claim when they were unable to establish that the alleged actions taken against them by the Wichita Police Department would not dissuade a reasonable worker from making a charge of discrimination. In the case, Semsroth v. Wichita, the Court held that an employee who ultimately was granted a transfer that was temporarily denied did not show that a reasonble employee would have found the conduct so objectionable that he or she would not have complained because of it. The Court also ruled that including a fitness-for-duty examination in an employee's voluntary appearance at a psychological examination was not an event that would cause another employee to refrain from making a charge of discrimination when her appearance at the examination (including the fitness-for-duty component) was entirely voluntary and the employer never used any of the information derived from the fitness-for-duty examination in any personnel action. The Court also ruled that another employee failed to present any objective evidence that the denial of her preferred transfer would dissuade any other employee from complaining since no evidence existed as to the position's preferred status to other employees.

Friday, February 20, 2009

Utah Legislature Kills Bill That Would Prohibit Employment Discrimination Based on Sexual Orientation or Gender Identity.

On February 17, 2009, the Utah House Business and Labor Committee voted against recommending House Bill 267 to the House. As indicated in an earlier post, House Bill 267 proposed to include a person's sexual orientation and gender identity as factors that could not be considered by employers in making employment decisions. Click here to find a link to listen to the committee proceedings.

When Are an Employer's Actions Intentional?

In a case decided last week, the Utah Supreme Court held that a woman who had been injured on the job could not only recover under the Workers' Compensation Act for her employer's negligent acts but also in state court for injuries that were intentionally caused by her employer. The case, Helf v. Chevron U.S.A., Inc., clarifies the dinstinction between negligent acts---for which an employee is limited to Workers' Compensation Act remedies---and intentional acts---for which an employee may bring additional claims in state court.

The employee in this case was injured when her supervisors directed her to neutralize toxic sludge in an open air pit after they knew that doing the same thing earlier in the day had created a large purple cloud that set off chemical alarms and sent several people home with illnesses. The employee, not knowing of the earlier problem, did as directed. The purple cloud formed, she vomited and passed out and later developed complex partial seizures, headaches, eye irritation, a twitching eyelid, disorientation, lethargy and weakness of extremities.

The Utah Supreme Court ruled that an act is intentional if an "injury resulted from an act that the actor knew or expected would cause injury. This standard does not require a motive to injure, but it cannot be satisfied by merely demonstrating that there was a high probability of injury." Accordingly, it ruled that the employer may have acted intentionally and the employee could maintain her claim in state court despite the fact that she had also recovered under the Utah Workers' Compensation Act.

Monday, February 9, 2009

Was the Hiring or Termination of Employment Legal?

All employers know that one of the most important decisions that they make is who to hire or who to let go. Despite this fact, many employers approach the employee selection process in a haphazard manner. This is very troublesome because the selection process is one of the most fertile areas for employment litigation. Hiring decisions give rise to potential liability under Title VII of the Civil Rights Act of 1964,civil rights claims,the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Credit Reporting Act, the Immigration Reform and Control Act, the Rehabiliation Act of 1973, the Vietnam Era Veteran’s Readjustment Assistance Act, the Utah Antidiscrimination Act, and the Utah State Personnel Management Act, to name just a few. Additionally, an employer’s communication of a job offer can also give rise to potential employment contract claims. It is imperative, therefore, that employers carefully attend to their employee selection and termination processes.

Review my article entitled "Lawful Hiring of Employers" for a discussion of both hiring and firing practices.

More Legislation that May Affect Employers and Employees

As has been discussed in previous posts, the Utah Legislature is considering legislation that will affect employers and employees in a number of ways. Here are additional bills that are being considered:

House Legislation:

House Bill 296, Schools for the Deaf and Blind Amendments. This bill clarifies that the School for the Deaf and Blind is subject to the Utah State Personnel Management Act.

House Bill 309, Workers' Compensation - Motor Carriers. This bill exempts from workers' compensation requirements particular operators of motor vehicles.

House Bill 328, Teacher Quality Amendments. This bill provides funding to award grants to public schools to create pilot programs for the implementation of performance-based compensation plans for elementary school teachers.

House Joint Resolution 15, Joint Resolution Approving Compensation of In-Session Employees. The resolution sets the compensation for House In-Session Employees.

Senate Legislation:

Senate Bill 163, Construction Trade Exemption. This bill provides an exemption from licensure for electrical and plumbing work done on building projects with a value of less than $3000.


There are over one hundred bills proposed in the House and Senate that are currently either "Numbered by Title without Any Substance" or "Introduced by Short Title." Of those, more than twenty appear to affect employer/employee relations.

Wednesday, February 4, 2009

Proposed Legislation: A Health Care Worker Can Sue for an Abusive Work Environment

The Utah State Legislature is considering whether to enact a measure that would make it illegal for health care facilities, agencies, or providers to subject their employees to abusive work environments or to retaliate against them for reporting abusive environments. The bill, House Bill 224, Health Care Provider Abusive Work Environment Prohibition Act, defines such an environment to be a "workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee." Articles describing the subcommittee hearing related to the bill were published in the Deseret News and Salt Lake Tribune. An audio for the House Health and Human Services Committee hearing can be found on the Utah State Legislature website.


Monday, February 2, 2009

More Utah Legislation has been Proposed that May Affect Employers and Employees.

Since the blog entries on January 12th, 19th, 26th, and 27th, the Utah Legislature is now considering additional bills that may affect employers and employees in Utah.

House Legislation:

House Bill 144, Medical Language Interpreter Act. This bill provides certification for certain types of medical language interpreters and criminalizes a person's representation that he or she is a certified medical language interpreter if he or she is not.

House Bill 145, Workplace Drug Testing Programs. This bill amends the current drug-testing statute applicable to private employers by modifying definitions, modifying procedures related to confirmation of tests, requiring certification of medical review officers, and modifying provisions related to use of test information.

House Bill 269, Anesthesiologist Assistants. This bill requires the licensing for anesthesiolgist assistants.

House Bill 271, Workers' Compensation-Uninsured Employers' Fund. This bill proposes to change certain collection practice of the Uninsured Employers' Fund.

House Bill 291, County Personnel Amendments. This bill proposes to extend the probationary period for a county employee to 270 day and eliminates a county's ability to extend the probationary period.

House Joint Resolution 13, Teacher Performance Pay. This resolution encourages the legislature
to develop performance pay or differential pay plans for public school teacher.

Senate Legislation:

Senate Bill 48, Teacher Licensing by Competency Amendments. This bill provides that a person may obtain a competency-based license to teach.

Senate Bill 120, Workers' Compensation Act - Medical Reports. This bill makes changes to the delivery of medical reports under the Workers' Compensation Act.

Senate Bill 121, Workers' Compensation - Attorney Fees. This bill proposes changes to the determination of the award of attorney fees in Workers' Compensation cases.

Senate Bill 126, State Personnel Management Act Amendments. This bill proposes to allow a department head to disapprove the reappointment of an employee from a reappointment register.

Senate Bill 127, Retirement Amendments. This bill modifies the Utah State Retirement and Insurance Benefit Act by amending provisions related to the retirement systems.

Senate Bill 137, Physical Therapy Practice Act. This bill establishes and modifies licensing provisions for physical therapists.

Senate Bill 139, Employer Election Retirement Amendments. This bill modifies the Utah State Retirement and Insurance Benefit Act by adding certain conversion windows.

Senate Bill 145, Public Safety Retirees Death Benefit Revisions. This bill modifies the Utah State Retirement and Insurance Benefit Act by amending death benefit provisions for the public safety and judges contributory and noncontributory systems.

New I-9 Effective Date Changed

The U.S. Citizenship and Immigration Services (USCIS) announced on Friday that it has delayed the effective date for using the new Form I-9 until April 3, 2009. As discussed in an earlier post, the new I-9 was scheduled to be used beginning today. Employers who use the new I-9 form before April 3, 2009, are subject to civil penalties. Accordingly, all employers should delay using the I-9 until that time.

Thursday, January 29, 2009

Ledbetter Fair Pay Act: Employees Who Receive Pay Based on a Discriminatory Decision Are Damaged on Each and Every Pay Check

President Obama signed the Ledbetter Fair Pay Act this morning. Prior to the passage of the Act, an employee was required to sue within 180 days of the day that an employer decided to pay an employee a smaller wage or salary for a discriminatory reason. The problem with this prior interpretation of the law was that employees are often unaware that their pay is less than similarly situated employees until months or even years later. Often, by the time the affected employees discovered the disparity, the law prohibited them from bringing an action. The Ledbetter Fair Pay Act has changed the law so that it now considers it an actionable discriminatory act every time the employee receives a paycheck that reflects the earlier discriminatory decision. The act was written to protect an employee who has been discriminated on the basis of race, color, national origin, sex, religion, age, and disability. Additionally, the act is given retroactive affect so as to apply to all payments made on or after May 28, 2007 .

Tuesday, January 27, 2009

Utah Legislature Considering Bill to Prohibit Employers from Considering Sexual Orientation or Gender Identity in Employment Decisions.

The Utah legislature is now considering a bill that proposes to include a person's sexual orientation and gender identity as factors that cannot be considered by employers in making employment decisions. Besides prohibiting most employers in the state from discriminating on the basis of sexual orientation and gender identify, House Bill 267, Antidiscrimination Amendments, proposes to make sweeping amendments to the statutes governing employment of state employees, county employees, and local district employees. The proposed legislation is one of the planks of Equality Utah's "Common Ground Initiative."

Monday, January 26, 2009

More Proposed Legislation that may Affect Utah Employers and Employees.

As has been discussed here on January 12th and 19th, the Utah Legislature is considering several bills that may have an impact on Utah employers and employees. Here are additional bills:

House Legislation:

House Bill 117, Mechanical Contractor Licensing Provisions. This bill proposes to require the licensing of heating, venting, and air conditioning (HVAC) mechanical technicians.

House Bill 249, Continuing Education for Contractors Amendments. This bill proposes to repeal some continuing education requirements for licensed contractors.

House Bill 260, School Employee Termination Amendments. This bill proposes to repeal the Utah Orderly School Termination Procedures Act that provides merit system or civil service type protections to educators before they may be dismissed.

House Bill 262, Licensing Eligibility. This bills would require anyone receiving a license issued by the Division of Occupational and Professional Licensing to provide the division with documentation of the applicant's lawful presence in the United States.

House Bill 264, Educator Evaluation Amendments. This bill proposes to change the requirements for educator evaluations.

Must an Employer Pay Employees for On-Call Time?

The Employment Standards Administration Wage and Hour Division recently issued a new opinion letter in which it decided that an employer need not compensate an on-call employee who was required while on-call to be reachable at all times, abstain from alcohol or other substances, and report to work within one hour of notice to return. "[S]o long as the employee is free to engage in personal activities when he or she is on call," the Division determined that an employer need not pay the employee for the time on-call. If, however, the conditions are so restrictive or calls or so frequent that the on-call employee cannot effectively use the time for personal purposes, an employer must pay the employee for the time.

Employees Who Never File Complaints about Sexual Harassment But Merely Answer Questions are Protected from Retaliation.

The United States Supreme Court ruled in Crawford v. Metropolitan Government that a local government employee who answered questions posed to her about a human resource employee's alleged sexual harassment was protected from retaliation even when she did not file her own complaint about his behavior. The questions came during an internal investigation being conducted when another employee complained about the HR employee's behavior. The questioned employee, although not filing a complaint herself, gave instances in which the HR employee acted in a very sexual manner toward her. Soon after the discussion, the questioned employee was fired for alleged embezzlement. Two other employees who had given similar accounts were also fired. The Supreme Court ruled that by answering the questions as she did, the questioned employee was protected from retaliation whether she had complained about the behavior herself or not and was entitled to pursue her lawsuit against the local government.

Can a Description of Job Responsibilities Constitute an Employment Contract for a Guaranteed Term?

In Guisti v. Sterling Wentworth Corporation, the Utah Supreme Court again addressed whether a statement made by an employer can constitute an employment contract for a specified term. In that case, the plaintiff argued that an offer letter he received from his employer guaranteed twelve months of employment. In so arguing, the plaintiff relied on two sentences in the offer letter, which stated that the employer would provide the plaintiff with “a monthly subsidy payment or non-recoverable draw for a 12 month period to allow [the plaintiff] to build the staff in the product area and grow [his] personal book of business” and that “[f]or the first 12 months of employment, [the employer] will provide [plaintiff] with a payment of $7,500 per month.”

Although recognizing that employers can change the presumption of at-will status by manifesting an intent to guarantee employment for a specified period, the court held in Guisti that the employer’s statements in the offer letter did not rise to the level of a guarantee of employment. However, this case serves as a reminder that statements made by employers or their agents can, under certain circumstances, be used to alter the at-will employment presumption.

Friday, January 23, 2009

Utah Labor Commission is Proposing New Rules for Adjudicating Discrimination Claims and UOSH Citation Claims.

The Utah Labor Commission has proposed rules to govern the process for the adjudication of discrimination claims filed by parties in the Utah Antidiscrimination and Labor Division and the Utah Occupational Safety and Health Division. The comment period for he proposed new rules for Discrimination claims and Utah Occupational Safety and Health claims ends on March 3, 2008. The process for making comments is described at www.laborcommission.utah.gov/Proposed%20rules.html.

Can Non-Union Employees Be Forced by Statute to Pay Service Fees to a Union that Pays for a Union's National Litigation?

In some circumstances, the law requires employees who refuse to join unions to pay service fees to the unions that represent their local collective bargaining unit. As one would guess, these laws often upset non-union employees who believe that their First Amendment rights of association and speech are being infringed. Consequently, there has been a substantial amount of litigation about whether the government can force a person to contribute to a Union. In the latest case to grapple with this issue, Locke v. Karass, the United States Supreme Court held that non-Union employees may be charged a share of a union's "national litigation expenses" if the litigation is appropriately related to collective bargaining and the local unit may ultimately be benefited by the contribution.

When Does an Employer Have to Give a 60-Day Notice Before Laying-Off Employees?

The Worker Adjustment and Retraining Notification Act (WARN) requires certain employers to give 60 days advance notice of a mass lay off to its employees. WARN, however, does not require the notice in certain circumstances. The court having appellate jurisdiction over Utah, the Tenth Circuit, decided earlier this week in Gross v. Hale-Halsell Company, that a wholesale grocery warehouse and distribution center was not required to give such a notice because unforeseeable business circumstances prevented the company from giving the notice sixty days before the lay offs. WARN still requires, however, that even if a business cannot give sixty days advance notice, it give notice as soon as practicable. The Tenth Circuit ruled that the employer had met the requirement even though it had given the workers only one day's notice before the lay-offs.

Monday, January 19, 2009

Are You Ready for the New I-9?

Beginning February 2, 2009, all employers will be required to use a new I-9 form that has been issued by the U.S Citizenship and Immigration Services (USCIS). The USCIS issued a press release explaining the change on December 12, 2008. The new I-9 form may only be used after February 2, 2009.

Utah Legislature Considering Bills that May Affect Employers and Employees.

As discussed in an earlier post, the Utah legislature begins its general session on January 26th. In addition to the proposed legislation that may affect employers discussed in that earlier blog entry, legislators have proposed additional bills since that time. The following is a listing of additional proposed legislation that may affect employers and employees in Utah:

House Legislation:

House Bill 86, Division of Real Estate Related Amendments, will affect real estate brokers who employ or contract with real estate agents. It will also affect appraisors who employ or contract with other appraisors. Among other things, it modifies education and reporting requirements for real estate brokers and sales agents, requires criminal background checks for real estate appraisal trainees and modifies license and certificate renewal requirements for appraisors.

House Bill 91, Individual Development Account Amendments, proposes to add additional benefits for workers looking for work. It provides for an individual development account for individuals with disabilities to accumulate funds to allow them to buy technology, make modifications to cars, and improve their homes to allow them to participate in work-related activities.

House Bill 96, State Retirement System Participation for Charter Schools, allows Charter schools to elect to allow their employees to participate in the state retirement system despite an ealier election not to participate.

House Bill 99, Professional Licensure Exemptions, will affect architectural and engineering firms. It proposes to remove the licensing exemptions that currently exist for architects to practice engineering or structural engineering, and for professional engineers to practice architecture.

House Bill 103, Revolving Door Limitations for Public Officials to Become Lobbyists, would affect any employer who intends to employ a lobbyist. The bill would prevent any former elected official or appointed government officer from acting as a lobbyist for one year after leaving office.

House Bill 218, Family Employment Program Amendments, requires the Department of Workforce Services (Unemployment) to make a rule for the amount of cash assistance a participant is eligible to receive under the Family Employment Program.

House Bill 230, Credit Required in Teacher Transfers, would require local school boards to consider when negotiating a contract of employment with a teacher the total teaching experience that the teacher has in Utah public schools and the teacher's documented teaching experience outside of Utah.

Senate Legislation:

Senate Bill 89, Public Safety Death Benefit Modifications, will affect Public Safety retirees. It proposes to raise the cap on death benefits in both the Public Safety Contributory Retirement System and the Public Safety Noncontributory Retirement System from 65% to 75%.

Friday, January 16, 2009

Can an Employee Collect Unemployment After Giving Two Weeks Notice?

Can employees collect unemployment after they have given their notice to quit? The answer to that question depends on the employer’s conduct. On January 15, 2009, the Utah Court of Appeals in Hughes General Contractors v. DWS held that an employee was eligible to receive unemployment benefits, even though the employee had given his employer two-weeks notice of his intent to quit, because the employer elected to consider the resignation effective immediately and did not pay the employee for the two week notice period. In its decision, the Court relied on rule 994-405-204 of the Utah Administrative Code, which provides that “[i]f a claimant notifies the employer of an intent to leave work on a definite date, and the employer ends the employment relationship prior to that date, the separation is a discharge unless the claimant is paid through the resignation date.”

The employer argued that the decision was contrary to the purposes of the Unemployment Act and that it should be allowed to cure by simply paying the employee for the two-week notice period. Although the Court recognized that the award could appear “disproportionate to the amount of time during which the claimant was involuntarily unemployed,” it rejected the employer’s arguments and upheld the Workforce Appeals Board’s conclusion that the employee was terminated without just cause and was therefore eligible for benefits. The bottom line is that if an employee submits his or her notice of resignation and the employer elects to treat the resignation as immediate, the employer must pay the employee the amount of wages he or she would have earned during the notice period, or the employee may be eligible for unemployment

Wednesday, January 14, 2009

Employers May Be Liable for their Supervisors' Misconduct Even When They Act Reasonably.

The Tenth Circuit decided in a case issued on January 12, 2009, that a Utah movie theater may be liable for its supervisor's sexual assault of a subordinate even when (1) the theater acted reasonably under the circumstances , (2) the supervisor had no history of sexual harassment before the assault, and (3) the theater fired the supervisor and took other appropriate corrective measures after it learned of the assault. The court in Chapman v. Carmike Cinemas declared that, because the theater did not prove that the victim had failed to promptly notify the theater, the theater could not defend itself from vicarious liability for the supervisor's actions. The case, however, hinted that the outcome may have been different if, instead of arguing that the application of the current Tenth Circuit allowed it to prevail, the theater had argued for the application of a different rule that had been adopted by a different appellate court.

Monday, January 12, 2009

Utah Legislation That May Affect Employers and Employees.

On January 26, 2009, the general session of the Utah legislature begins. Currently, there are several bills that have been introduced that may have an impact on employers and employees in this legislative session. The following is a list of current bills that may have an effect on employers and employees in the state.

House Legislation:

House Bill 39, Utah Injured Worker Reemployment Act. This act amends particular portions of the Workers Compensation statute related to the rehabilitation and reemployment of injured employees. It amends and restructures the existing Utah Injured Worker Reemployment Act and includes reporting requirements for rehabilitation efforts made by employers and insurers. It provides for the Division of Industrial Accidents to make rules and regulations consistent with the statute. It further clarifies the process for making referrals and initial reports of rehabilitation efforts. It also clarifies provisions related to a rehabiliation counselor and extends the sunset date of the statute to July 1, 2014.

House Bill 82, Teacher Mortgage Loan Program. Although this is not a bill generally applicable to all employees, the bill provides a new benefit to teachers employed in local school districts or charter schools. The bill would provide those teachers a loan of up to $15,000 for the purchase of a first home. Loan amounts are forgiven depending upon how long a teacher stays employed by the school district or charter school.

House Bill 12, County Sheriff Qualifications Amendments. Again although not a bill generally applicable to all employers, it is an important bill for counties. It provides new certification requirements for county sheriffs elected after the 2008 general election.

Senate Legislation:

Senate Bill 39, Immigration Amendments. This bill makes amendments to the Identity Documents and Verification Act. It clarifies that no local public entity may enter into a contract through a request for proposal process with a contractor who has failed to register and participate in an approved Status Verification System, such as the federal E-Verify program. It also provides that an individual need not verify lawful presence in the country to receive benefits under the Utah State Retirement and Insurance Benefit Act.

Senate Concurrent Resolution 1, Concurrent Resolution Requesting a Federal Waiver to Establish an Employer-Sponsored Work Program, urges Congress to grant Utah a waiver to allow it to institute an employer-sponsored work program providing a two-year, renewable guest worker authorizaton for foreign workers and undocumented immigrants currently residing in the state and allowing employers to withhold federal FICA and Medicare revenue to apply it toward the health insurance and other administrative costs of the program.

Senate Bill 31, Utah Residential Mortgage Practices and Licensing Act. Although not a bill generally applicable to all employers, it is an important bill for businesses originating and making residential mortgage loans. It makes amendments to licensing requirements, including examination, prelicensing education, and continuing education requirements; conditional licensing; and reactivating inactive licenses, for residential mortgage lenders.