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.