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.