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 .

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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.

Friday, January 9, 2009

Do Governmental Employees Have the Right to Comment on their Belief that the Agency by which they are Employed is Acting Outside its Authority?

The federal appellate court having jurisdiction over federal questions arising in Utah, the Tenth Circuit, issued a decision on January 8, 2009, explaining that an employee's concern over the scope of an investigation was a matter of public concern. The court in Dixon v. Kirkpatrick held that, although an employee had raised an issue of public concern, the agency for which she worked was justified in terminating her employment because the agency had a more substantial interest in protecting the details of ongoing investigations.

The employee in this case was hired as an "investigative assistant" by the Oklahoma Board of Veterinary and Medical Examiners (OBVME). An investigative assistant is a person assigned to an investigator to provide primarily clerical assistance. In this case, during the employee's tenure of employment, the OBVME assisted in the investigation of a dog-fighting ring. There was some question as to whether any veterinary was involved in the ring, and, the investigative assistant was concerned that the OBVME was inserting itself in matters over which it had no jurisdiction. The employee expressed those concerns, together with concerns about the management of the office and the conduct of the investigator she was assisting, to a local veterinarian who was a member of a committe of a private trade organization of veterinarians.

After it was discovered that she had spoken with the veterinarian, the employee was fired on the basis that she had spoken about an ongoing investigation to a member of the public. Although there was some dispute, the court assumed that the OBVME had never formalized a policy prohibiting such discussions.

Unlike private employees, employees working for governmental entities have constitutional protections that keep their governmental employers from unreasonably restricting the employees' first amendment right to speech. Although other questions are important to a determination of the legality of the any speech restriction, in this case, the questions important to the Tenth Circuit were (1) whether the employee's discussion of the OBVME's activities that allegedly exceeded the scope of its statutory authority was a discussion of a matter of public concern and (2) whether the government's interest in preventing the speech outweighed the employee's interest.

In commenting on the first question, the court ruled that the employee's concern about the OBVME's improper use of public funds to investigate a matter outside its jurisdiction was a matter of public concern that implicated the employee's free speech rights. On the other hand, the court ruled that the employee's concern about the management style of the director and the conduct of her supervisor were not matters of public concern given the lack of the seriousness of the allegations.

Even though the court initially concluded that at least one issue about which the employee had spoken was a matter of public concern, the court still concluded the OBVME was justified in terminating the employee because the OBVME had a legitimate interest in protecting the confidentiality of its investigations that outweighed the employee's interest. The court was particularly concerned that such a rule was necessary to protect the inadvertant disclosure of details about an investigation that would disrupt the OBVME in fulfilling its mission. The Tenth Circuit was very careful, however, to limit its decisions to the specific facts of this case.

Does the Knowledge Requirement for Just Cause in Unemployment Cases Require Knowledge of Potential Discipline

In Utah, an applicant for unemployment can be denied unemployment compensation if his termination was for "just cause." The elements necessary to satisfy that inquiry include whether the employee had knowledge of a workplace standard, whether he or she had control over, among other things, the alleged behavior supporting the termination, and whether he or she was culpable.

The Utah Court of Appeals in a decision published on January 8, 2009, was asked to decide whether a person can be denied unemployment for being terminated for just cause if he did not have knowledge that the potential discipline could include termination. In the case entitled Montoya v. Department of Workforce Services, the Court answered a clear, "No." The court stated, "[T]his is not the relevant inquiry. [The employee] did not, and does not, dispute that he had knowledge of the safety protocol and that he failed to follow it. These facts satisfy the knowledge element."

The court also said that the culpability standard was met where an employee attempted to conceal his or her actions.

Does a Utah Governmental Employee Have a Right to Stay in Current Job Position?

The federal appellate court having jurisdiction over federal questions arising in Utah, the Tenth Circuit, issued a decision on January 6, 2009, delineating the scope of the rights that an employee employed by a governmental entity may have in staying in the same position that he or she has historically had. The case, Potts v. Davis County, involved the law suit of a sheriff deputy employed by the Davis County Sheriff's Department. The deputy, who was a Patrol Sergeant, was investigated for six alleged violations, including failing to respond to calls for assistance, requiring his crew to leave assigned areas, and spending an inordinate amount of time in inactive capacity. After the investigation, he was terminated.

The deputy then appealed his termination to the county merit system appeal board. During the hearing, the Davis County Sheriff dropped the three above-mentioned charges, and the appeal board reversed the termination on the other three charges. The deputy was reinstated to the same rank in the Davis County Sheriff's Deparment. However, the Sheriff assigned the deputy to court security rather than back to patrol. After requesting reassignment to patrol, where he could get night differential, the deputy quit and sued the County for violating his due process rights.

Unlike private employees, employees working for governmental entities have constitutional protections that keep their governmental employers from taking away the employees' property or liberty without due process. In this case, the deputy alleged that he had a property right to continue in his position as a Patrol Sergeant. He also claimed that his liberty interests were violated when he was not able to prove that the three dropped charges against him were false.

The Tenth Circuit ruled against the deputy saying that a governmental employee does not have the right to the same position even if another position to which he is transferred does not have "every nuance and detail" that is the same as the original position. The court also said that, because the governmental employee had been reinstated after his hearing, he was not entitled to clear his name of the other three charges that had been dropped because the public would look on his reinstatement as a indication.

Thursday, January 1, 2009

Are You Ready for FMLA Changes?

As you may or may not know, beginning January 16, 2009, new administrative rules governing an employer's duties under the Family and Medical Leave Act (FMLA) will begin to be enforced by the federal government. The regulations have made it necessary for employers to review their employee handbooks, posters, and notices to assure that they comply with the new regulations. Additionally, the Department of Labor has updated several forms and now requires that employers use a new form when administering any FMLA leave with their employees. The newest forms are available at this website: http://www.dol.gov/esa/whd/fmla/finalrule.htm.