Wednesday, November 30, 2011

Tenth Circuit: Lilly Ledbetter Fair Pay Act Tolls the Statute of Limitations on Claims for Discriminatory Compensation

In Almond v. Unified School District #501, the Tenth Circuit Court of Appeals ruled that the Lilly Ledbetter Fair Pay Act, which was enacted in 2009, does not extend the statute of limitations on all discrimination claims every time a person receives a paycheck.  Rather, the Tenth Circuit concluded it applies to extend the statute of limitations only when the claim is for discrimination in compensation.  In other words, the Act does not apply to all discriminatory decisions that result in lower pay rate, it only applies when a person claims that he or she is being discriminated against in receiving lower compensation than other similarly situated workers for the same work.

Utah Court of Appeals: Former Orem City Treasury Division Manager a Merit Employee Required to Appeal City Decision to Utah Court of Appeals

In Kocherhans v. Orem City, the Utah Court of Appeals upheld the decision of a trial court dismissing the claim of a former Orem City Treasury Division Manager for wrongful termination.  The court ruled that the former employee's failure to appeal the Employee Appeal Board's decision to the Utah Court of Appeals precluded him from bringing the claim in district court.  The former employee claimed that he should have been considered an "at-will" employee that was not governed by Utah Code Ann. section 10-3-1106, which required him to appeal such a decision.  The Utah Court of Appeals rejected the argument holding that Orem City was not required to designate his position as a division head or deputy position, declaring that cities in Utah have no obligation to create any deputy positions at all.

Wednesday, November 23, 2011

Utah Court of Appeals: Court "Takes Issue" with Workforce Appeals Board's Use of Unintroduced Computer Records to Overturn ALJ Decision

In Swenson v. Department of Workforce Services, the Utah Court of Appeals "[took] issue with the [Workforce Appeals] Board's reliance on evidence that was not presented to the ALJ or given to the parties" to reverse an ALJ's decision in an appeal of an unemployment benefits determination.  Although the Court ultimately affirmed the Workforce Appeals Board's decision on separate grounds, it spent significant time addressing the Board's reliance on Department of Workforce Service's computer records introduced at the Board level but not introduced during the initial hearing.  The Court concluded its analysis by stating that "the procedure followed by the Board appears to violate its own rules and Swenson's right to due process."

Saturday, September 17, 2011

Unemployment Fraud for Filing While out of the United States?

The Utah Department of Workforce Services has apparently begun a campaign of alleging that unemployment applicants are committing fraud when applying for benefits while out of the United States.  Relying on Utah Administrative Code Rule R994-403-112c(2)(i), the Department of Workforce Services has claimed that any travel outside of the United States makes a person ineligible to receive unemployment benefits even if (1) the claimant was on a job deferral and (2) could immediately return to the United States to accept work.  Apparently questioning the interpretation and enforceability of this rule prior to August 2, 2011, the Department of Workforce Services amended the rule in early August to include language that purportedly prohibits employees from claiming benefits for period they spend outside of the United States.

The Department of Workforce Services began this campaign after it updated its technology to identify the ip addresses of computers and telephones from which claims were being made.  The problem with this technology, of course, is that it (1) does not account for anonymizing software nor (2) does it identify that a claimant was actually in the same locality for the proceeding week, the week for which the claim is being made.

Although no published Utah case has dealt with this issue, the issue is ripe for judicial determination, particularly given the penalty that is assessed against a claimant---repayment of the amount claimed, plus a penalty in the same amount, and disqualification from future payments.

Monday, August 15, 2011

Tenth Circuit: Arbitrator Reinstating Employee Violating Rules and Lying About It Was Not Outside of the "Essence" of the CBA

The Tenth Circuit ruled that an arbitrator drew from the essence of the labor contract when he reinstated an employee and imposed a last chance agreement on the employee despite the employee having violated a company rule and then lying about it.  In Chevron Mining Inc. v. United Mine Workers of America Local 1307, the court ruled that, although the arbitrator found that the employe was negligent and provided false information, it was permissible for the arbitrator to consider the motive of the employee in doing so.  In this case, the arbitrator considered that because the employee's deception "was not for personal gain but to prevent loss of his reputation, seniority, and benefits," his conduct was forgivable.  Such a conclusion and imposition of alternative sanctions was not making a decision outside of "the essence of the contract."

Friday, August 12, 2011

Tenth Circuit: Government Employee not Acting within Scope of Employment When Conducting an Examination of Subordinate in Women's Restroom

In Sandoval v. Martinez-Barnish, the Tenth Circuit Court of Appeals upheld a district court's decision to refuse to substitute the United States as the defendant in a case brought by a contract worker against the federal employee assigned to supervise her work.  The contract worker brought a claim for assault, battery, and outrageous conduct against the supervisor when, after the contract worker complained of flying ants in her work space, the supervisor asked the worker to partially disrobe in the bathroom to show her the ant bites on her body.  Although the supervisor was apparently intending to help the worker as a witness of the bites, the worker sued the supervisor.  The United States attempted to substitute itself in as the proper defendant but the Tenth Circuit agreed that the supervisor's behavior was outside the scope of her employment. 

Tenth Circuit: "Wear Away Period" Does Not Discriminate on Age

On August 11, 2011, the Tenth Circuit Court of Appeals ruled that a district court had properly dismissed an Age Discrimination in Employment Act and ERISA claim against an employer.  In Tomlinson v. El Paso Corporation, the court stated that it would determine whether an ERISA plan was discriminatory on the basis of age by looking at whether the crediting of their pension plan was discriminatory rather than whether the resulting output from the plan was discriminatory.  The court was unpersuaded by the argument of the plaintiffs that, because they were older and had benefited from a more generous plan, they were discriminated against during the transition period because they effectively did not accrue benefits during the transition since they could choose between benefits of the new plan or the old plan and the older plan would be more generous for a number of years.  The court dismissed this argument by stating "we will not hold that an otherwise permissible plan discriminates against older employee merely because older employees are more likely to qualify for a greater benefit."

Friday, August 5, 2011

Tenth Circuit: In Order for Employees to Prevail on Freedom of Association Claims They Must Show that the Association Related to a Matter of Public Concern

On July 25, 2011, the Tenth Circuit Court of Appeals, the federal appellate court having jurisdiction over federal cases in Utah, decided an issue that had yet to be decided by that court---whether an employee claiming a violation of his or her right to association was required to show that the association involved an issue of public concern.  The court ruled that there must be a public concern showing.

In Merrifield v. Board of County Commissioners, a former Youth Services Administater in the Santa Fe County Youth Development Program claimed, among other things, that he was given the harsh discipline of termination because the County Commissioners were angry that he had hired an attorney to defend himself in his disciplinary hearing.  He therefore claimed that his First Amendment freedom of association had been violated.  In response, the County claimed that the administrator's claim was not valid because he had not shown that the association was centered around a matter of public concern.  Instead, the County claimed, it was an association related to a private employment matter.  The administrator claimed that to assert a freedom of association claim no relationship to a matter of public concern was necessary.  He additionally argued that, even if such a relationship was required, his concern was a matter of public concern because "the attorney-client relationship categorically qualifies as a matter of public concern."

The Court, acknowledging that it had never decided the issue and that other federal circuit appeal courts disagreed about the issue, decided that in freedom of association cases involving associating "for the purpose of engaging in speech, assembly, or petitioning for redress of grievances" the issue around which the association is concerned must be "'a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.'"  In making this decision, it left open the question whether the matter of public concern element would be required in questions of association related to "intimate human interactions" or "free exercise of religion."  The Court rejected the administator's contention that his case was a matter of public concern, holding that if the attorney-client relationship were an issue of public concern in this circumstance, all employee grievances would be turned into constitutional claims.

Utah Court of Appeals: Tattoo Parlor Not a Religious Entity Exempt from Unemployment Statutes

In Lowery v. Workforce Appeals Board, a tattoo parlor, Happy Valley Tattoo, claiming to be a religious entity affiliated with UBU Ministries that "considered tattooing to be one of its core religious tenets," asserted that it was exempt from Utah's unemployment insurance statutes.  Acknowledging that such an exemption exists, the Utah Court of Appeals held that the employer had failed to establish the necessary elements to establish the exemption, including exemption "under federal law."

Utah Court of Appeals - Employee Who Failed to Follow Work Schedule Not Discharged for Just Cause

On July 29, 2011, the Utah Court of Appeals upheld a Workforce Appeals Board determination that an employee who failed to follow his work schedule was not terminated for just cause and was, therefore eligible for unemployment.  In Prosper Team, Inc. v. Department of Workforce Services, the Utah Court of Appeals stated that, although it might have decided the case differently, because the Workforce Appeals Board determined that the employee did not understand that he had been assigned a specific work schedule, the Court would not overturn the decision because "a reasonable mind might consider this evidence adequate to support the Board's finding that the Claimant did not have knowledge that he was expected to rigidly adhere to certain shift requirements."  The Court did not consider it notable that the employee had been given a written warning, verbal warnings, and email warnings.

Monday, June 20, 2011

Utah Court of Appeals: When a Utah Public Employee Retires Twice, His Retirement is Calculated on Two Different Service Periods

In McLeod v. Retirement Board, the Utah Court of Appeals refused to reverse the Utah State Retirement Board's decision that a Davis County sheriff deputy's "retirement benefits from two periods of public employment must be calculated separately."  The Court disagreed that the plain language of the statute required the Board to treat the two separate periods as one for benefit calculations.  It also agreed that the former employee had failed to meet his burden to estop the state from using the statute to the employee's detriment.

Friday, May 27, 2011

United States Supreme Court: Legal Arizona Workers Act of 2007 Not Preempted by Federal Immigration Law

In Chamber of Commerce v. Whiting, the United States Supreme Court determined that an Arizona law enacted in 2007 that allows Arizona courts to suspend or revoke licenses to do business in Arizona if an employer knowingly or intentionally employs an unauthorized alien and requires all employers in the state to use E-verify was not preempted by federal law.  The Court determined that the plain statutory language of the federal Immigration Reform and Control Act, though preempting "State of local law imposing civil or criminal sanctions," specifically permitted sanctions imposed "through licensing and similar laws."  In this case, the Court found that the Arizona act was a licensing regime that was specifically not exempted.  Additionally, it concluded that, although the federal law prohibits the federal government from mandating the use of E-Verify, it does not prohibit states from doing so.  Accordingly, the Court upheld the Arizona law.

Utah Court of Appeals: ALJ Did Not Err When She Refused a Continuance Despite Key Witness Being Seriously Ill in Bed

In InnoSys, Inc. v. DWS, the Utah Court of Appeals upheld an Administrative Law Judge's [ALJ's] determination to grant a discharged employee unemployment insurance.  One of the issues before the court was whether the ALJ had improperly denied a motion for continuance because a witness was confined to bed because of her medical condition.  In Utah, unemployment hearings are generally held telephonically and witness testimony is given over the telephone.  Apparently, in this case, the witness had a serious medical condition that prevented her from meeting with attorneys before the hearing and prevented her from seeing exhibits.  Moreover, during her testimony, she began to suffer side effects from her pain medication, she was distracted by the pain, and that she began bleeding.  The Utah Court of Appeals concluded that the ALJ was not informed of the medical condition and concluded that some of the complaints were unrelated to the medical condition of the witness.  Accordingly, it concluded that the ALJ did not abuse his discretion in refusing to grant a continuance.

Friday, May 20, 2011

Tenth Circuit: County Employees Have Constitutional Claims When County Failed to Place Employee's Contract on Agenda

In Borde v. Board of County Commissioners, the Tenth Circuit Court upheld a trial court's order denying immunity to County Commissioners for violating former employees' due process rights when, among other things, they failed to put on the agenda of the meeting that they would be considering the employment contract of the employees.  Stating that placing an item on a legislative agenda does not implicate the legislative function, the Court ruled that the commissioners were not entitled to legislative immunity.

Wednesday, May 18, 2011

Utah Court of Appeals: Despite Being Fired for Distributing Pornography, Employee Should Still Be Paid Disability Benefits

In Stampin' Up, Inc. v. Labor Commission, the Utah Court of Appeals affirmed the Labor Commission's finding that an employee was entitled to temporary disability benefits after he was fired for distributing pornographic images to other employees.  Reasoning that, because there was no evidence that the employee had not intended his acts to get him fired, the Utah Court of Appeals said that such acts did not disqualify him from receiving benefits under the plain language of the statute.

Tuesday, May 3, 2011

Tenth Circuit: Trainer Truck Driver Required to Disclose HIV Status to Potential Trainees Before Being Allowed to Train not Discriminatory

In EEOC v. C.R. England, Inc., the 10th Circuit Court of Appeals affirmed the dismissal of a case brought by an HIV-positive truck driver.  The truck driver, who had been hired to train new truck drivers for C.R. England, Inc., disclosed his HIV-positive status to C.R. England.  After doing so, C.R. England prepared a form that any potential trainees would be required to sign before the trainer would be allowed to train the truck driver.  If the trainee did not sign the document, the trainer would not be permitted to train the trainee.  The first trainee presented with the document signed it, and the trainer began training him.  Various issues arose and the trainer ended up heading home in Florida after his request for "home time" was denied. 

The trainer sued, claiming that he was discriminated against when, among other things, CR England provided the disclosure document to the trainee.  The district court granted summary judgment against the trainer, holding that, given the only trainee ever presented with the disclosure document signed it, the trainer's opportunities to train were never actually limited and the trainer suffered no adverse employment action.  The Tenth Circuit agreed, although noting several times that the disclosure document may have the potential to cause adverse employment action to be taken in different circumstances.

The case also involved several other interesting discrimination claims and issues.

Sunday, May 1, 2011

Tenth Circuit: Utah Anti-Discrimination and Labor Division Did Not Discriminate

In Kline v. Utah Anti-Discrimination and Labor Division, the Tenth Circuit Court of Appeals refused to overturn a Utah District Court's ruling that the Utah Anti-Discrimination and Labor Division (UALD)---the agency charged with investigating claims of discrimination in Utah---did not illegally discriminate against one of its former discrimination investigators.  Concluding that the UALD acted appropriately under the circumstances, the Tenth Circuit agreed that the plaintiff had not alleged an actionable claim of discrimination even though the investigator claimed that she was treated harshly and was singled out for poor treatment.  The court agreed that the district court had properly concluded that the treatment was not because of the investigator's sex but because of her performance.

Monday, March 21, 2011

Tenth Circuit: Employee Did Not Waive Right to Bring Later Court Action After Union Arbitration Proceeding

On March 16, 2011, the Tenth Circuit overruled a district court decision that dismissed a discrimination claim brought by a former union member.  The district court had determined that, because the former employee and union member had participated in a union arbitration of an anti-discrimination contract clause that had required the arbitrator to analyze the claim under the applicable state and federal law, the former employee had waived his right to seek a judicial remedy.  In reversing the district court, the Tenth Circuit stated that it did not matter that the arbitrator had applied federal law in arbitrating the breach of union contract claim becaue "the district court's conclusion ignores the 'distinctly separate nature' of contractual and statutory rights, which is 'not vitiated merely because both wree violated as a result of the same factual occurrence.'"  Thus, the Tenth Circuit reiterated the principle that a union employee does not waive his statutory right to bring a claim in a judicial forum unless the specific language of the collective bargaining agreement provides otherwise. 

Tuesday, March 1, 2011

United States Supreme Court: If a Supervisor Performs an Act Motivated by Antimilitary Animus, Employers May Be Liable Even If a Different Supervisor Fires the Employee

In Staub v. Proctor Hospital, an opinion issued today, the United States Supreme Court ruled  that an employer can be liable for a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) even if the supervisor who ultimately made the decision to discipline an employee was not motivated by anti-military animus. 

The Court considered the argument of the employer that, although the immediate supervisors of the employee who was in the Army Reserve did act with a discriminatory intent, it did not matter because the supervisor who did fire him did not act with discriminatory intent.  In rejecting that argument, the Court stated that, because the disciplining supervisor relied on earlier discriminatory disciplinary action taken against the employee by the other supervisors, her decision violated USERRA.  "[I]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."  The Court further explained, "The decisionmaker's exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes."  The Court also rejected a rule that would entirely immunize an employer who conducts an independent investigation, stating that only "if the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action" will the employer be free from liability.

Wednesday, February 23, 2011

Tenth Circuit: Employer Who Failed to Properly Calculate Overtime Based in Part on Attorney's Advice Still Wilfully Violated the FLSA

The Tenth Circuit Court of Appeal concluded that an oil field operator who had sought advice from an attorney about its overtime policies had still wilfully violated the statute when it relied in part on that advice.  In Mumby v. Pure Energy Services (USA), Inc., the Court ruled that "[a]lthough consultation with an attorney may help prove that an employer lacked wilfullnes, such a consultation is, by itself, insufficient to require a finding in favor of the employer."  Instead, the Court said the inquiry focues on the employer's diligence.  Although in this case, the oil field operator had received incorrect advice from the attorney with which it had complied, it had failed to adhere to the portion of the advice that was correct.  Accordingly, the employer was found to have wilfully violated the statute, subjecting it to one more year's worth of back pay and liquidated damages.

Tenth Circuit: College Decision to Discharge Chief Information Officer for Criticizing Contractor Not Violation of First Amendment

In Sarkar v. McCallin, the Tenth Circuit affirmed a trial court's decision to dismiss a case that a Chief Information Officer brought against his former employer.  The CIO argued, among other things, that he was dismissed for exercising his First Amendment rights in complaining about the contract performance of one of the computer software vendors providing services to his college.  The court ruled that all of the statements were made as part of his official duties and that he was not acting in his capacity as a citizen or taxpayer.  Thus, the speech was not protected, and the adversarial relationship created by the CIO justified his discharge.

Tuesday, February 22, 2011

Utah Supreme Court: Mayor Exonerated in Criminal Trial Is Entitled to Reimbursement for Attorney Fees

On February 18, 2011, the Utah Supreme Court upheld a trial court's ruling that a mayor who had been charged with criminal conduct could bring a claim against the city in which he served for reimbursement for his attorney fees based on the Utah Reimbursement Statute, Utah Code Ann. Section 52-6-201(1), when he was found not guilty of misusing public funds while he was mayor.  In Olsen v. Eagle Mountain City, the Court rejected the city's argument that the mayor was not entitled to reimbursement because he failed to give the city the opportunity to defend him in the suit.  The Court found that the language upon which the city relied was clearly intended to relate to civil cases rather than criminal cases and, therefore, was not applicable in the case of a criminal charge.

The decision is the second in less than a month dealing with the Utah Reimbursement Statute.  In the earlier case, Acor v. Salt Lake City School District, the Utah Supreme Court held that for purposes of the statute, the relevant inquiries entitling an employee acquitted of criminal conduct were only (1) whether an employee was acquitted of charges, not whether the employee could be found to have been guilty in the later civil trial requesting reimbursement, and (2) whether the complained of act occurred at a time and place of authorized employment, not whether the employee was acting outside the scope of his or her employment.

Friday, February 18, 2011

Utah Court of Appeals: Workforce Appeals Board Decisions Upheld Again

In two cases decided on Thursday, February 11th, the Utah Court of Appeals affirmed decisions of the Workforce Appeals Board.  In Konan v. DWS, the Utah Court of Appeals affirmed a fraud overpayment finding against a claimant who was required to repay the amount he received and to pay a statutory penalty.  The man who claimed to be unemployed was actually self-employed and operating his own business at the time he was claiming unemployment.  Although he argued that he would suffer a financial hardship in being required to make the repayment and pay the penalty, the Court noted that "once the elements of fraud have been found, the statutory penalty cannot be altered." 

In Welte v. DWS, the Court of Appeals affirmed the Board's determination that an employee quit when she did not return to work although no one told her that her employment was terminated.  In fact, she refused to return even after being asked to return.

Thursday, February 10, 2011

Walmart Employees Fired for Disarming Gunman

Video Courtesy of

Tenth Circuit: Not Unreasonable to Send Employee Home to Establish Ability to Continue Working When Employer is Ignorant of Disease Disclosed by Employee

In Fryer v. Coil Tubing Services, the Tenth Circuit Court of Appeals affirmed a trial court's decision dismissing an employee's Americans with Disabilities Act (ADA) claim. In this case, the employee disclosed to his employer that he suffered from Hepatitis C. The human resource manager he discussed the disease with admitted she was unaware of the disease or its effects but sent the employee home until a doctor could clear him to work. The employee sued the employer, in part, because he claimed that his employer regarded him as disabled when it did so. The Tenth Circuit upheld the trial court's decision stating, "Being temporarily uncertain of a situation is not the same as considering an employee disabled." The Court continued by explaining that it was "not unreasonable" for the employer "to give [the employee] an opportunity to establish his ability to safely work in the environment and to provide him full pay while it researched the situation.

Monday, February 7, 2011

January Was A Busy Month for the Courts!

As you have probably noticed, it has been a long time since I posted anything on my blog.  Please excuse me for failing to do so.  From December 23rd to February 7th was an exceptionally busy time for me.  It included year-end partner meetings, a trial, and deposition preparations.

In any event, in the approximate six week span, there were twenty-seven new employment law cases decided by the Utah Supreme Court, Utah Court of Appeals, United States Supreme Court, and Tenth Circuit Court of Appeals.  Although I wish that I could give them all individual treatment, I have simply listed them here.  There were significant cases that decided issues of employee privacy, retaliation claims, trade-secret violation claims, and the Utah governmental employees' right to reimbursement of attorney fees.  I have linked to all of the cases.