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.