Thursday, May 31, 2018

Utah Whistleblower Protections Expanded!

The Utah Legislature recently passed legislation, SB 199, requiring all public employers in the state to give a copy of the Utah Protection of Public Employees Act to all employees when they are hired and, once again, if they file a complaint or grievance alleging retaliatory action for whistleblowing.  Before the amendment, an employer was required to give a copy of the statute to an employee only upon request.  All public employers in the state should update their policies to assure that they are complying with the Act.

Tuesday, May 29, 2018

D. Scott Crook to Present at Seminar on Employment Law: Advanced Issues and Answers

D. Scott Crook, the creator of The Utah Employment Lawyer, will be one of the presenters at the upcoming Continuing Education Seminar entitled Employment Law:  Advanced Issues and Answers.  He will be presenting on Recent Developments in State and Federal Employment Law and Conducting an Effective Internal Investigations.

The seminar will be held on June 20, 2018 and Mr. Crook will be presenting from 9:00 a.m to 10:30 a.m.  Further information can be found at the National Business Institute website.

New Utah Employment Legislation

Summary of legislation passed by the 2018 Utah Legislature.
1.     Background Checks
HB0069 – National Crime Prevention and Privacy Compact – Allows Utah to join the National Crime Prevention and Privacy Compact and permits Utah to share information with other states and the federal government relating to background checks and criminal histories for use in noncriminal-justice background checks.  
2.    Discrimination Legislation
HB0031 – Utah Antidiscrimination Act Amendments – Removes a provision relating to the Utah Antidiscrimination and Labor Division (UALD) holding hearings upon receiving complaints, grants UALD subpoena powers during an investigation, instructs the UALD to assign a mediator, makes amendments regarding mediators duty to conciliate and persuade, requires notice of right to request an evidentiary hearing, makes the issuance of a determination and order an action not subject to the Utah Administrative Procedures Act.
3.    Employment Incentives/Grant Programs
HB0327 – Rural Online Initiative – Requires Utah State University (USU) to help individuals living in rural areas take advantage of freelance, job, and business opportunities available online.
HB0390 – Rural Economic Development Incentives – Authorizes a rural employment expansion grant for the creation of new jobs in counties of the fourth, fifth, or sixth class.
HCR0014 – Concurrent Resolution Recognizing Utah’s Robust Economic Growth and Urbanization – Recognizes the need for forward thinking in, among other things, development of a talented workforce in Utah’s metropolitan areas.
SB0103 – Strategic Workforce Investments – Amended the definition of an eligible partnership to include a statewide partnership, amends provisions related to a proposal for strategic workforce investment funding, and places restrictions on the use of an appropriation for strategic workforce investment.
SB0104 – Talent Development and Retention Strategy – Creates a program to provide an incentive loan to a student who intends to work in a qualifying job.
SB0147 – Nursing Initiative – Provides a process for the Legislature to provide funding to certain programs that prepare an individual to enter a nursing profession.
4.    Licensing
HB0037 – Occupational and Professional Licensing Amendments – Modifies the Division of Occupational and Professional Licensing’s (DOPL) authority to share certain information, modifies provisions related to unlawful and professional conduct, modifies provisions related to unpaid penalties, modifies exemptions related to cosmetology and associated professions, and modifies background check requirement and other requirements for certain medical professionals. 
HB0046 – Educator Licensing Modifications – Authorizes the State Board of Education (SBE) to implement an educator licensing system, modifies provisions related to endorsements and letters of authorization, repeals requirement that a district superintendent hold a license, modifies provisions related to youth suicide prevention training for employees, and repeals the Compact for Interstate Qualification of Educational Personnel.
HB0063 – Cosmetology and Associated Professions – Allows DOPL to offer required examinations for cosmetology and related professions in languages in addition to English.
HB0170- Licensing Fee Waivers Amendments – Provides that an applicant applying for a license from DOPL does not have to pay fees in certain circumstances.
HB0173 – Occupational Licensing Requirement Amendments – Modifies the authority of DOPL to issue licenses to individuals who have been previously licensed in other states, districts, or territories of the United States.
HB0200 – Dentist Licensing Amendments – Changes provisions related to an examination required for licensure as a dentist under the Dentist and Dental Hygienist Practice Act.
HB0243 – Division of Real Estate Amendments – Amends the Utah Residential Mortgage Practices and Licensing Act regarding requirements for licensure, record requirements, and investigations, amends the Appraisal Management Company Registration and Regulation Act regarding registration requirements, qualifications, professional standards, amends the Real Estate Licensing and Practices Act regarding exemptions to licensure and investigations, and amends the Real Estate Appraiser and Licensing Act regarding the Division of Real Estate’s denial of licensure, certification, and registration, and investigations.
HB0369 – Auto Dealership License Amendments – Creates a direct-sale manufacturer license, creates a direct-sale manufacturer salesperson license, permits a direct-sale manufacturer licensee to act as a salesperson for one direct-sale manufacturer under certain conditions, and exempts a direct-sale manufacturer from the provisions of the New Automobile Franchise Act.
SB0015 – Environmental Health Scientist Act Amendments – Clarifies the qualifications for licensure for an environmental health scientist and an environmental health scientist-in-training.
SB0063 – Charity Registration Amendments – Amends the definition of a professional fund raiser, professional fund raising counsel or consultant, and the criteria for registration.
SB0068 – Physician Assistant Vital Statistics Act Amendments – Adds certain physician assistants to the list of individuals who can practice as a health care professional under the Utah Vital Statistics Act and creates requirements a physician assistant must meet in order to practice.
SB0078 – Office of Licensing Amendments – Authorizes the Office of Licensing within the Department of Human Services to suspend a license for up to three years.
SB0129 – Private Investigator License Revisions – Modifies the number of hours of investigative experience and other requirements that are required to apply for a private investigator agency license.
SB0197 – Private Security Amendments – Modifies training requirements for licensed armed private security officers.
SB0217 – Physician Testing Amendments – Prohibits a health care facility from requiring a physician to take a cognitive exam at a certain age to obtain employment, privileges, or reimbursement.
SB0227 – Licensing Standards for Military Spouses – Provides certain exemptions from occupational and professional licensure in a variety of occupations and professions for an individual serving in the military and his or her spouse if the individual is licensed in another jurisdiction.
5.    Payment of Wages
HB0364 – Employment Law Amendments – Modifies the definition of employer for purposes of the Payment of Wages Act, enacts the Service Marketplace Platforms Act, and establishes a presumption that a building service contractor who affiliates with a service marketplace platform is an independent contractor.
SB0212 – Separation from Payroll Amendments – Addresses the payment of unpaid wages to a commission-based sales agent after the employer separates the sales agent from the employer’s payroll.
6.    Non-Competition Agreements
HB0241 – Post-Employment Restrictions Amendments – Addresses the circumstances and conditions under which a post-employment covenant between a broadcasting company and a broadcasting employee is valid.
7.     Public Employees
a.    Background Checking
HB0089 – Permitting the Department of Health to collect fingerprints from minors who are seeking clearance for direct patient access.
SB0143 – Employment Background Checks – Provides certain state entities the authority to conduct background checks for employees, contractors, appointees, and volunteers.
b.    Benefits
HB0019 – Health Insurance Right to Shop Amendments – Amends provision that allows insurers to reward enrollees for selecting “high-quality and low-cost health care providers.” 
HB0029 –Public Employees Long-Term Disability Act Amendments – Amends certain key definitions, identifies when an employee will be evaluated for ongoing disability benefits, modifies reductions or reimbursements for a disability benefits, and requires repayments of overpayments. 
HB0034 – State Employee Leave Policy Amendments – Allows certain state employees to paid leave to provide certain volunteer disaster relief services. 
HB0146 – Postretirement Reemployment Restrictions Act – Repeals the requirement that, for a retiree who is reemployed as an affiliated emergency services worker, the termination date of the reemployment is considered the retiree’s retirement date for the purpose of calculating the one-year separation requirement. 
HB0147 – Retirement Forfeiture for Employment Related Offences – Authorizes a district attorney, a county attorney, the attorney general’s office, or the state auditor to notify the Utah State Retirement Office and the employee’s participating employer if an employee is charged with an offense that is or may be an employment-related offense and requires the participating employer who received the notification to make certain report to the entity that provided the notification. 
HB0229 – Surviving Spouse Insurance Death Benefit – Repeals the provision that a surviving spouse of a covered individual who is employed by the state and has a line-of-duty death is eligible for group health coverage paid for by the state only until the surviving spouse remarries and provides that a surviving spouse of a covered individual is eligible for group health covered paid for by the state as long as the surviving spouse continues coverage with the program. 
SB0005 – Retirement and Independent Entities Base Budget – Provides, among other things, budget for Department of Human Resources and approves employment levels for internal service funds.
SB0021 – Public Safety and Firefighter Retirement Death Benefit Amendments – Amends the death benefits payable to a member of Divisions A or B in the Public Safety Contributory Retirement Act and the death benefits of a member of Division B of the Public Safety Noncontributory Retirement Act.
SB0073 – Public Employees’ Benefit and Insurance Program Amendments – Amends the requirements for the contributions made by an employer to the health savings account for a federally qualified high deductible health plan.
SB0181 – Infertility Insurance Coverage Pilot Program – Requires PEHP to create a 3-year pilot program to cover a portion of the cost of using an assisted reproductive technology.
SB0206 – Local Public Safety and Firefighter Surviving Spouse Trust Fund Amendments – Authorizes certain law enforcement agencies that employ public safety officers or firefighters to elect to participate in the Local Public Safety and Surviving Spouse Trust Fund.
SJR004 – Joint Resolution Authorizing Pay of In-Session Employees
c.     Employee Grievance/Review
HB0183 – Career Service Review Office Amendments – Repeals a requirement that the administrator of the Career Service Review Office (CSRO) employ a court reporter to make a transcript of a grievance procedure hearing and requires the CSRO to record a grievance hearing. 
HB383 – Work Environment and Grievance Procedure Amendments – Incorporates in statute the state’s policy and commitment to provide a work environment free of abusive conduct, includes abusive conduct and other actions as conditions for which an employee may file a grievance and complaint, prohibits retaliatory action against an employee who advocates in a grievance procedure for another employee, amends deadlines for submitting grievances to higher steps, and provides for an administrative appeal to the administrator of the CSRO.
d.    Mandatory Human Resource/Personnel Policies
HB0133 – Employment Amendments – Expands nepotism provision of Title 52, Chapter 3, Prohibiting Employment of Relatives, which applies to public entities, to apply to household members.
HB0134 – Conflict of Interest Disclosure Requirements – Exempts certain public officers and employees from filing certain disclosures regarding the person’s business interests if the person filed a conflict of interest disclosure under the Election Code. 
SB0070 – Human Resource Requirements – Requires charter schools and local districts to establish human resource management policies, ensures that at least one of the school’s or district’s employees or another person is assigned human resource management duties and receives appropriate training, and modifies a requirement that the executive director of the Department of Human Resource Management provide certain entities with human resource management advice and training recommendations.
SB0199 – Utah Protection of Public Employees Act – Exempts an action filed under the Utah Protection of Public Employees Act from certain requirements of the Governmental Immunity Act of Utah, expands the list of entities to whom an employee may communicate wrongful governmental conduct, defines independent personnel board, sets a deadline for an independent personnel board to hear a complaint, requires a state institution of higher education to adopt a policy to establish an independent personnel board to hear and take action on a complaint, provides an exception to the 180-day time limit, and expands the circumstances under which an employer is required to provide a copy of the Utah Protection of Public Employees Act.
e.    Record Keeping/Disclosure
HB0056 – Emergency Personnel Recording Amendments – Provides that an audio recording made (a) during an emergency event when an emergency responder is treating or resuscitating an individual and (b) which is intended to be used for purposes of training emergency responders is a protected record under the Government Records Access and Management Act (GRAMA). 
HB0072 – Communications of Governmental Entity Employees and Officers – Provides that an email sent by a governmental entity email system in violation of the prohibition against political and campaign solicitations is a record subject to disclosure under GRAMA.
SB0230 – Law Enforcement Protection Amendments – Creates a process by which a law enforcement officer may have their personal information removed from publicly available state or local government sites.
SB0238 – Legislative Hiring Practices Amendments – Provides exemption from the Open and Public Meetings Act when a meeting is held in relation to making an employment recommendation to the Legislature.
f.     Teachers/Education
HB0233 – Teacher Salary Supplement Revisions – Provides a salary supplement for a teacher who has a degree in special education and is assigned to teach special education.
HB0236 – Public Education Reference Check Amendments – Requires a local education agency to make reference checks under certain circumstances and requires a local education agency to respond to certain reference check requests within 20 business days.
HB0237 – Concurrent Enrollment Enhancements – Requires the State Board of Regents establish a policy describing required qualifications for an individual to be an eligible instructor for a concurrent enrollment course and repeals requirements related to eligible instructors, including requirement that certain eligible instructors be approved as adjunct faculty.
HB0270 – Teacher Employment Amendments – Requires the State Board of Education to ensure that a public education database for teacher credentials performs in a certain manner.
SB0008 –State Agency and Higher Education Compensation Appropriations – Provides funding for salary increases, health insurance benefits, dental insurance benefits, long-term disability benefits, retirement rate changes, and defined contribution plans.
g.    Training
HB0179 – State Training and Certification Requirements – Requires that certain training and certification required by public officials, employees, and volunteers be presented or available in an on-line web-based format. 
8.    Workers’Compensation
HB0219 – State Money Management Act Amendments – Requires the state treasurer to invest the assets of the Employer’s Reinsurance Fund and the Uninsured Employer’s Funds in particular ways.
HB0288 – Workers’ Compensation Claims Amendments – Makes it unlawful for an employer to interfere with an employee’s ability to seek workers’ compensation benefits or retaliate against an employee for seeking workers’ compensation benefits.
SB0014 – Industrial Accident Restricted Account Sunset – Eliminates language that provides for a repeal of provisions related to the Industrial Accident Restricted Account.
SB0040 – Workers’ Compensation Dependent Benefit Amendments – Modifies the calculation of benefits paid to one or more dependents of an employee with a disability under the Workers’ Compensation Act.
SB0064 – Workers’ Compensation Health Care Amendments – Among other things, addresses the rate at which certain workers’ compensation carriers and self-insured employers must reimburse a hospital for covered medical services.
SB0075 – Labor Code Amendments – Modifies the mailing requirements under Title 34A, Utah Labor Code and provides circumstances under which the Division of Industrial Accidents may waive or reduce a penalty for conducting business without securing workers’ compensation coverage.
SB0092 – Workers Compensation Attorney Fees – Provides that to the extent allowed by court rule, an employee may be awarded reasonable attorney fees in an adjudication of a workers’ compensation claim where only medical benefits are at issue.
SB0176 – Student Internship Liability – Removes a distinction to broaden the class of student interns that the State Risk Fund covers.

Thursday, May 10, 2018

Cases --- April 29th through May 5th, 2018


Cases --- April 22nd through 28th, 2018

Workers Compensation/Occupational Safety & Disease

Davis v. Labor Commission (Utah Ct. App., April 26, 2018) (declining to disturb Commission determination that worker was not acting in the course of his employment at the time of his accident:  discussion of the instrumentality exception to the "going and coming" rule---the truck was not an instrumentality of company's business)

Pittman v. Berryhill (10th Cir., April 26, 2018) (affirming denial of social security benefits)


Nealis v. Coxcom, LLC (10th Cir., April 24, 2018) (affirming summary judgment in favor of Coxcom on Nealis's retaliatory discharge claim: Nealis failed to present evidence of a causal relation between her protected activity and her termination)

Hankishiyev v. ARUP Laboratories (10th Cir., April 25, 2018) (affirming summary judgment in favor of ARUP on Hankishiyev's retaliation claim, and dismissing his age discrimination claim)

 *Cases marked with an asterisk are cases the 10th Circuit does not consider binding precedent except under the doctrines of law of the case, res judicata, or collateral estoppel. They may be cited, however, for persuasive value under Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

Cases --- April 15th through 21st, 2018