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.