Wednesday, November 18, 2009

What is Actionable Retaliation Against a Public Employee for Exercising First Amendment Rights?

On Tuesday, November 17, 2009, the Tenth Circuit Court of Appeals---the federal appellate court having jurisdiciton over Utah---determined that the correct standard to be assessed on retaliation claims arising under the First Amendment is whether the alleged retaliatory actions are actions that "would deter a reasonable person from exercising his . . . First Amendment rights." In Couch v. Board of Trustees, the Tenth Circuit was asked to determine whether a doctor employed by a state hospital had suffered retaliation for expressing his support of a more stringent drug-testing policy. After he began advocating for such a policy and implicating certain doctors at the facility of having drug problems, he was the subject of investigations, was not reappointed to a seat on a committee, and administrative proceedings were instituted against him. Although the Court considered some of the actions as potentially retaliatory, it concluded in every instance that the motives for the actions were not a result of the doctor's advocacy but were the result of other unrelated incidents or events.

Monday, November 16, 2009

Salt Lake City Council Passes Non-Discrimination Ordinance Protecting From Discrimination on the Basis of Sexual Orientation or Gender Identify

On November 10, 2009, the Salt Lake City Council passed an ordinance banning certain employers from discriminating against employees or job applicants "because of a person's sexual orientation or gender identity." The ordinance does not give an employee a private right of action against an employer but permits a person to file a complaint with the City Administrator. After an investigation and conciliation efforts, the City can decide to file a claim against an employer found to have violated the ordinance. Employers of 50 or fewer employees are subject to a $500 fine while employer of 51 or more employee are subject to a $1000 fine for violations of the ordinance.

Wednesday, November 4, 2009

Utah Labor Commission Has Broad Statutory Authority to Correct Old Workers Compensation Judgments

In Frito-Lay v. Labor Commission, the Utah Supreme Court clarified that, although Utah state courts do not have authority to impose the Utah Rules of Civil Procedure on administrative proceedings, the Utah Workers' Compensation Act gives the Labor Commission broad authority to correct orders even after statutory appellate deadlines have passed. Accordingly, in Frito-Lay, the Supreme Court ruled that the Labor Commission could properly review an order that "did not reflect the [Administrative Law Judge's] determination at the hearing" even after the "30-day deadline [for an appeal] provided by the Utah Administrative Procedures Act" had passed.