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.