The Utah Employment Lawyer

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

2011-11-30T09:54:00.001-07:00

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

2011-11-30T09:21:00.001-07:00

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.

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

2011-11-23T08:50:00.001-07:00

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."

Unemployment Fraud for Filing While out of the United States?

2011-09-17T17:28:00.000-06:00

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.

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

2011-08-15T08:54:00.000-06:00

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."

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

2011-08-12T08:10:00.002-06:00

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

2011-08-12T07:53:00.000-06:00

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."

Social Media Keeping You From A Job?

2011-08-09T07:30:00.000-06:00

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

2011-08-05T11:12:00.001-06:00

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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

2011-08-05T09:16:00.003-06:00

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

2011-08-05T08:19:00.001-06:00

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.

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

2011-06-20T13:47:00.000-06:00

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.

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

2011-05-27T07:59:00.000-06:00

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

2011-05-27T07:39:00.000-06:00

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.

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

2011-05-20T07:36:00.000-06:00

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.

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

2011-05-18T09:02:00.000-06:00

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.

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

2011-05-03T18:19:00.000-06:00

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.

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

2011-05-01T09:17:00.000-06:00

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.

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

2011-03-21T10:19:00.001-06:00

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.

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

2011-03-01T15:20:00.001-07:00

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.

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

2011-02-23T09:23:00.000-07:00

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

2011-02-23T09:09:00.000-07:00

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.

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

2011-02-22T17:46:00.000-07:00

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.

Utah Court of Appeals: Workforce Appeals Board Decisions Upheld Again

2011-02-18T08:25:00.001-07:00

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.

Walmart Employees Fired for Disarming Gunman

2011-02-10T08:46:00.002-07:00

Video Courtesy of KSL.com

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

2011-02-10T08:23:00.000-07:00

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.

Is the Job Market More Difficult for Older Workers?

2011-02-09T07:21:00.000-07:00

A Recent Discussion Regarding Hiring by Small Businesses

2011-02-09T07:13:00.000-07:00

January Was A Busy Month for the Courts!

2011-02-07T12:11:00.002-07:00

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.

Tenth Circuit: Jury Got It Right---Charter School Did Not Violate Teacher's Right When It Banned Gossip and Discussions about School

2010-12-15T12:11:00.000-07:00

In Dillon v. Twin Peaks Charter Academy, the Tenth Circuit Court of Appeals upheld a jury verdict against a teacher's claims of violation of her free speech and association rights by a charter school. The teacher claimed that the charter school's ban on gossip and command "forbidding teachers from discussing school matters outside of school" were unconstitutional. The jury rejected her case and the district court awarded the charter school its costs. The Tenth Circuit found no harmful errors in the proceedings and affirmed the trial court's rulings and the jury verdict.

Tenth Circuit: No Claim When Deputy Quit Rather than Accept Reassignment

2010-12-14T07:00:00.000-07:00

In Lauck v. Campbell County, the Tenth Circuit upheld a district court's ruling that dismissed a case against a sheriff's department brought by a deputy after he was reassigned to the Civil Process Division. Although the deputy claimed that his reassignment constituted a demotion, because his pay and rank were the same before the transfer, the court held that the reassignment under the facts of this case did not constitute a breach of contract, a constructive discharge without due process, or a violation of First Amendment rights.

Tenth Circuit: Because Police Officer Was Given An Extensive Opportunity to Rebut Claims He Had No Complaint

2010-12-10T17:55:00.000-07:00

In Skogen v. Overland Park, the Tenth Circuit ruled that a police officer who had been terminated for off-duty conduct had no complaint for a violation of due process because an extensive investigation was conducted before he was fired. The court also concluded that the police department had a significant interest in preserving the integrity of its police department that were served by the termination.

The Utah Compact on Immigration is Making a National Impression

2010-12-10T09:30:00.002-07:00

Video Courtesy of KSL.com

Utah Court of Appeals: An Employee Who Requested to Rescind Resignation Still Considered to Have Quit Without Good Cause

2010-12-10T09:20:00.000-07:00

In Issa v. DWS, the Utah Court of Appeals affirmed the decision of the Workforce Appeals Board which denied unemployment benefits to an employee who attempted to rescind his resignation. The employee had resigned his employment after he was told he would be suspended for three days while the company investigated a second customer complaint. Rather than accept the suspension, the employee told his employer that he was quitting. Two days later, the employee told his employer that he had changed his mind, but the employer refused to accept the rescission and told him that it had accepted his resignation. The employee argued that such a situation did not constitute quitting without good cause. The Board disagreed and the Utah Court of Appeals upheld the decision of the Board.

Tenth Circuit: Municipality Not Liable for Employing Badly Trained Forensic Expert

2010-12-06T13:47:00.001-07:00

In Bryson v. Oklahoma City, the Tenth Circuit Court of Appeals ruled that Oklahoma City had no liability for its failure to properly supervise and train an expert forensic chemist who had testified in a trial that DNA from the plaintiff was found on a rape victim even though the tests clearly exonerated the plaintiff. As a result of the testimony of the expert, the plaintiff had spent twenty years in prison.

Despite the Tenth Circuit's sympathy to the plaintiff and the fact that if found "it deplorable that the conditions that led to his unjust confinement were permitted to continue for so long a time after the City was put on notice of the deficiencies in its forensic laboratory program," the court was not "persuaded . . . that it was highly predictable or plainly obvious that a forensic chemist would decide to falsify test reports and conceal evidence if she received only nine months of on-the-job training and was not supervised by an individual with a background in forensic science." Therefore, the court concluded the city was not deliberately indifferent and could not be liable for the employee's acts.

Employers Are Cutting Back on Holiday Parties

2010-12-06T12:38:00.000-07:00

What Should You Do About Workplace Bullies?

2010-11-19T08:46:00.001-07:00

The following report from Fox News is an interesting story about workplace harassment and bullying.

Tenth Circuit: Nurse who Resigned on Advice of Supervisor did not Have claim for Discrimination

2010-11-16T13:54:00.000-07:00

In Chaplin v. Park Hospital District, Inc., the Tenth Circuit Court of Appeals ruled that a nurse who resigned her position in reliance upon her supervisor's statement that she would likely become the new Unit Coordinator could not bring claims for disability discrimination and FMLA violations because the record established that being placed in that position was not a reasonable accommodation since she could not be reassigned to it. The court also agreed that the statement by the supervisor could not be construed as an implied contract or enforceable promise.

Utah Court of Appeals: If You're on Vacation, You Can't Get Unemployment

2010-11-12T17:50:00.000-07:00

In Higgs v. DWS, the Utah Court of Appeals affirmed the Department of Workforce Services determination that a man who was on vacation in the U.S. Virgin Islands had fraudulently obtained unemployment benefits for the week of his vacation. The court rejected the man's claims that his ignorance of the requirements of the statute should preclude a finding of fraud given that he had received a copy of the Claimant Guide, which detailed that a claimant must contact the Department of Workforce Services in circumstances such as his. It also did not matter that he claimed he would have returned from vacation if he had been offered a job.

Tenth Circuit: Excluding Witness Testimony of Other Employees who Made Ageist Remarks Permissible

2010-11-12T17:43:00.000-07:00

The Tenth Circuit Court of Appeals ruled in Mendelsohn v. Sprint/United Management Company that the district court did not abuse its discretion when it excluded testimony of witnesses who claimed to hear ageist remarks before a RIF that included the plaintiff. The court reasoned that because the plaintiff alleged only that her RIF was inconsistent with the RIF criteria and not that the RIF was inherently discriminatory, what other employees reported that supervisors said who were not in the plaintiff's supervisory chain was irrelevant to whether she suffered discrimination. Accordingly, the Tenth Circuit ruled that the district court's exclusion of the witness testimony was appropriate. An earlier appeal in the case made it all the way to the United States Supreme Court. This decision came to the Tenth Circuit after it had been remanded back to the district court.

Work Thanksgiving Parties: Hopefully There is more Thanks and Less "Giving"

2010-11-11T17:25:00.000-07:00

Now that we are entering the holiday season, it is important to remember that even though an employer may host an off-site holiday party, there is a potential for employer liability for improper employee activity. Activities at employer-sponsored Thanksgiving parties have been at the center of at least two reported court cases. In Jordan v. Alternative Resources Corporation, 458 F.3d 332 (4th Cir. 2006), for instance, an employee brought a racial discrimination and retaliation claim as a result of some activities that occurred at an "office Thanksgiving party." Although the employer eventually won the suit, a vigourous dissent pointed to the fact that the employee was retaliated against at the party for having reported an inappropriate racially insensitive remark that had occurred some weeks before the party. Also, in U.S. v. Rogers, 50 M.J. 805 (USAF Crim App. 1999), a lieutenant colonel was convicted of "disorderly conduct of a nature to bring discredit upon the armed forces" for having fraternized and engaging in an inappropriate relationship with a lieutenant who got drunk at an off-site Thanskgiving party.

Although most employees will certainly behave appropriately, it bears noting that employers should be careful to assure that holiday parties do not foster or exacerbate any inappropriate or illegal conduct.

Happy Veterans Day!

2010-11-11T09:47:00.000-07:00

To all those who have served our country and their families, happy Veteran's Day. Not only have veterans contributed to all of us by willingly serving to protect our freedoms and way of life, but they are often excellent employees who are used to dealing with difficult issues calmly and quickly. Thank you for your service.

Utah Court of Appeals: Employee Who Said He Did Not Want to Remain Employed Because of his Supervisor Quit and was not Layed Off

2010-11-05T13:19:00.001-06:00

In Brucks v. DWS, the Utah Court of Appeals agreed with the Department of Workforce Services that an employee, who apparently was attempting to gain some concessions by approaching his field supervisor and saying he did not want to remain employed if he had to work with his immediate supervisor, had quit and was not laid off, precluding him from receiving unemployment benefits. The employee's claim that the employer agreed to report the claim as a lay-off did not change the outcome.

Tenth Circuit States Once Again: Title VII of the Civil Rights Act Does Not Create a General Civility Code

2010-11-05T13:04:00.000-06:00

In Musungayi v. Whirlpool Corporation, the Tenth Circuit Court once again reaffirmed the principle that Title VII of the Civil Rights Act does not create a general civility code. The court agreed with the district court's decision that the plaintiff had not stated a claim of discrimination despite the fact that some coworkers made stray comments about "dark Africa" and occasionally got angry with the plaintiff.

Arbitration Agreement Enforceable Against Employee Despite Illegality of Provision

2010-11-03T08:48:00.002-06:00

In Kepas v. eBay, the Tenth Circuit Court of Appeals, with one judge dissenting, affirmed a district court's decision to compel an employee to arbitrate a dispute. Applying California law, the Court reasoned that, although the arbitration agreement impermissably allowed the arbitration costs to be shifted to Kepas and the agreement was procedurally unconscionable, the defects were not significant enough to render the arbitration agreement unenforceable. The dissenting judge found the former employee's argument more compelling and chided the majority for concluding that the agreement was bilateral when the agreement excepted intellectual property claims from the arbitration requirement---a carve out that would exempt most claims brought by eBay from being arbitrated.

An Older Employee Must Demonstrate that He or She Was Replaced by a Younger Person to Sustain an Age Discrimination Claim

2010-10-29T10:24:00.000-06:00

In Kosak v. Catholic Health Initiatives, the Tenth Circuit Court of Appeals affirmed judgment against a woman who claimed she was discriminated against because of her age. Despite the woman's arguments to the contrary, the Tenth Circuit reaffirmed that "an ADEA plaintiff must ordinarily show that her position was filled by a younger person in order to make a prima facie case of discrimination."

Claims under Utah Whistleblower Act Must be Filed Within 180 Days or They Are Barred

2010-10-29T10:16:00.001-06:00

In Thorpe v. Washington City, the Utah Court of Appeals declared that an employee who failed to file a complaint in a court raising his Utah Protection of Public Employees Act ("Whistleblower Act") claims within 180 days was barred. The employee attempted to circumvent the requirements of the Whistleblower Act by claiming that a Notice of Claim filed pursuant to the Governmental Immunity Act of Utah should be considered a "civil action" that was required to be filed by the Whistleblower Act. Instead, the Court reaffirmed and clarified that for a party to file a claim under the Whistleblower Act against a governmental entity, it must comply with the Notice of Claim requirements of the Governmental Immunity Act and the 180 day requirement of the Whistleblower Act. "It follows that the plaintiff must submit the notice of claim before the elapse of 120 days from the date of the alleged [Whistleblower Act] violation so that, after governmental either denies or fails to approve the notice of claim within 60 days, the plaintiff may still file a timely complaint within the . . . 180-day statutory period."

The Court of Appeals also rejected the employee's claim that he could bring an action in the district court regarding his termination without first appealing the decision of the city's employee board of appeals to the Utah Court of Appeals.

Former KMart Store Manager Did Not Suffer Discrimination

2010-10-25T09:38:00.000-06:00

In Gardner v. Sears Holding Corporation, the Tenth Circuit upheld a trial court's order granting summary judgment against a man who claimed he was discriminated against on the basis of his age and race when his employment was terminated. The court ruled that because "Kmart had established legitimate, non-discriminatory reasons for reprimanding Mr. Gardner by documenting the poor conditions of his store and the compliants of his employees," the manager's claims of race and age discrimination could not withstand summary judgment.

Employee's Failure to Identify that Her Termination was a Result of Discrimination Defeated her Discrimination Claim

2010-10-25T09:32:00.000-06:00

In Logdson v. Turbines, Inc., the Tenth Circuit Court of Appeals ruled that a former employee who filed a charge of discrimination with the EEOC that contended she had been discriminated against when she was demoted, was not promoted, and was disciplined did not preserve her claims of discriminatory termination. The court ruled that "it was not reasonable to expect the EEOC to investigate her discharge as discriminatory or retaliatory based solely on the prior, 'remote' reference to the discharge in [a later submitted document]." Because she failed to raise the issue with the EEOC, her discrimination claim was dismissed.

Unemployment Benefits Recipient Did Not Unreasonably Reject Offer to Work only Two Day of Work

2010-10-25T09:25:00.000-06:00

The Utah Court of Appeals ruled that a laid-off employee could not be denied unemployment benefits even though she rejected an offer to work at her former employer for at least two days with an offer to work more if the work existed. The Court stated in Duong v. DWS that "the decision of the Board disqualifying Duong from benefits based upon a refusal [in this circumstance] . . . 'exceeds the bounds of reasonableness and rationality.'"

Employee who Admitted Misconduct and that He had No Evidence of Discriminatory Intent Had No Discrimination Claim

2010-09-16T08:16:00.000-06:00

In Hall v. Interstate Brands Corporation, the Tenth Circuit Court of Appeals---the federal appellate court having jurisdiction over Utah---recently ruled that a district court correctly dismissed an employee's discrimination claim against his employer when the employee admitted that he had engaged in misconduct and conceded that there was no evidence other than his own personal belief that the discipline imposed upon him was imposed based on his race. The Tenth Circuit also affirmed the district court's conclusion that limited, isolated incidents of inappropriate conduct did not create a hostile work environment.

Employees Who Received Payments Pursuant to an Equity Participation Program Must Pay Them Back to Bankruptcy Trustee

2010-09-14T16:17:00.000-06:00

The Tenth Circuit Court of Appeals ruled in In re Dittmer that employees who received $34,556 each in payment for their stock appreciation rights (SARs) must return to their employer's bankruptcy trustee all of the money they received because the SARs were payments from the bankruptcy estate. The employees had argued that the payments were not property of the bankrutpcy estate because the payments were entirely dependent upon the economic decisions of the employer. The Court rejected the argument because the pre-bankruptcy contract required a payment to them if a certain event occurred. Accordingly, the Court stated that the obligation existed before the employer filed for bankruptcy.

Utah Valley State College and Two Administrators Should Have Been Dismissed from Suit

2010-09-02T12:49:00.000-06:00

The Tenth Circuit Court of Appeals---the federal appellate court having jurisdiction over Utah---reversed a district court decision that allowed a former instructor at Utah Valley State College (UVSC) to remove his Age Discrimination in Employment Act and civil rights complaints to state court. In Helmick v. UVSC, the Tenth Circuit ruled that once the trial court concluded that the defendants were immune from suit by the 11th Amendment and that two UVSC administrators were qualifiedly immune, the Court should have dismissed the case instead of allowing the plaintiff to remove the case to a state trial court

Former CEO not Entitled to Indemnification at this Point

2010-08-30T15:48:00.000-06:00

In Flood v. ClearOne Communications, Inc., the Tenth Circuit Court of Appeals---the appellate court having jurisdiction over Utah----overruled a Utah district court judges decision that an employer was required to continue to pay its former CEO's criminal defense costs. The district court had concluded that the agreement that the former CEO and ClearOne had reached must be interpreted to require indemnification because otherwise the contract was illusory. The district court therefore forced ClearOne to pay 60% of the CEO's defense cost and pay the other 40% in to an escrow account for later payment if the Court determined the fees were reasonable. The Tenth Circuit disagreed with the district court, saying that the contract was not illusory and ,even if it were, the district court should have refused to enforce it rather than force ClearOne to abide by it. It therefore reversed the district court's decision. The Tenth Circuit left open the question as to whether the district court could later enter a new order requiring indemnification.

Demoted School Administrator Age Discrimination Claim Should Not Have Been Dismissed

2010-08-24T17:46:00.000-06:00

In Jones v. Oklahoma City Public Schools, the Tenth Circuit---the federal appellate court having jurisdiction over Utah--- overruled the decision of the trial court dismissing the claims of a school administrator for having too weak of a case of discrimination. Although the trial court ruled that the administrator had presented evidence of discrimination, it ruled that the evidence was just not strong enough. The Tenth Circuit rejected the analysis and explained that the administrator "was under no obligation to provide additional evidence of age discrimination" and should have been permitted to present her case to a jury.

Public Employer Not Immune From Suit for Firing for a Claim that He Was Fired for Losing A Defamation Claim

2010-08-24T17:31:00.000-06:00

On August 24, 2010, the Tenth Circuit Court of Appeals---the federal court having jurisdiction over Utah---ruled in Deutsch v. Jordan that a sheriff could continue in his claims against a city manager for firing him for what she claimed was his false testimony in a private law suit he brought against a citizen. The private citizen had claimed that the sheriff had misappropriated money to purchase a laptop computer. After making the accusation, the sheriff brought a claim of defamation against the citizen in small claims court. The sheriff lost the case and afterward was fired by the city manager for alleged false statements made in the court proceeding.

The sheriff then brought a claim against the city manager for violation of his first amendment right to free speech. The city manager claimed that the sheriff's testimony in trial was not protected speach and that, even if it were, she was entitled to immunity from suit. The Tenth Circuit rejected both arguments and affirmed the district court's determination that the sheriff could continue with his claim against the city manager.

Utah Court of Appeals Upholds Workers Compensation Decision Allowing Surgery

2010-08-23T09:35:00.000-06:00

On August 19, 2010, the Utah Court of Appeals upheld the Utah Labor Commission Appeals Board's order affirming a decision permitting a surgery that was required after an employee suffered an industrial injury. In Resort Retainers v. Labor Commission, the Court of Appeals ruled that Labor Commission Appeals Board had not erred when it affirmed the ALJ's decision to allow the petitioner to file a doctor's opinion late in the proceeding and the ALJ's decision to refer the matter to a medical panel, and when the Appeals Board affirmed the medical panel recommended surgery.

Sleeping on the Job Constitutes Good-Cause for Termination

2010-07-07T12:54:00.000-06:00

In Williams v. Solvay Chemicals Inc., the Tenth Circuit Court of Appeals, the federal court having jurisdiction over Utah, ruled that an employee who was terminated for sleeping on the job did not have a claim against his employer even thought he had an employment contract that only allowed for termination for good cause. The court, applying Wyoming law, ruled that the company had a good faith belief that the employee could be terminated for sleeping on the job and that the stated reason for the termination was "applied in good faith."

Union Fairly Represented Union Employee in Grievance Hearing

2010-07-07T12:40:00.000-06:00

The Tenth Circuit ruled in an unpublished decision today that a union member did not have a claim against his union for violating the duty of fair representation. In Menges v. ABF Freight System, Inc., the court ruled that, although the union agent representing an employee in a grievance hearing after the employee was terminated may have had a grudge against the employee, the agent acted reasonably in the representation. The court dismissed the employee's claims that the agent attempted to sabotage his case, that the agent failed to present certain evidence, and that the agent failed to keep out certain evidence presented by the employer.

Are You Verifying Employment Eligibility?

2010-07-02T08:11:00.001-06:00

As of July 1st, all employers who employ more than fifteen employees are required to register with a "status verification system," or an E-Verify system operated by the federal government to verify the federal legal working status of any individual who is a newly hired employee. The requirement is a provision found in Senate Bill 251 which was passed by the legislature in its last legislative session.

Public Employee Threatening Life of Police Chief Justifiably Terminated

2010-06-25T11:26:00.000-06:00

In Turner v. Lone Peak Public Safety District, the Utah Court of Appeals upheld the rather uncontroversial determination of a local government entity appeals board that an employee's threat to kill his boss, the police chief, justified his termination. The fact that the employee was under the influence did not excuse the threat nor did the fact that the threat occurred in a private call with the employee's ex-wife.

Two-Member NLRB Did Not Have Authority to Issue Decisions.

2010-06-21T14:37:00.000-06:00

The United States Supreme Court ruled on June 17, 2010, in New Process Steel L.P. v. NLRB, that as of December 31, 2007, when there were no longer three members of the NLRB, the NLRB lacked authority to act as a Board. In ruling as it did, the Court stated that it "was not insensitive to the Board's understandable desire to keep its doors open despite vacancies," but nonetheless ruled that "[i]f Congress wishes to allow the Board to decide cases with only two members, it can easily do so."

A Governmental Entity's Audit of Text Messages was Reasonable Despite Assumption that Text's were Private.

2010-06-21T14:27:00.000-06:00

On Thursday, June 17, the United States Supreme Court upheld the discipline of a police officer for sending personal and some sexually explicit text messages on a city provided pager. In Ontario v. Quon, the Supreme Court assumed without holding that the police officer had a reasonable expectation of privacy in his text messages. It did so given its explicit hesitancy to answer the question because of "[r]apid changes in the dynamics of communications and information transmission." In any event, the Court concluded that despite the assumed privacy expectation, the City had reasonably searched the texts because (1) the stated basis for the search---to determine the reasonableness of the text character limitations---was justified at its inception, (2) the investigator had only reviewed the officer's texts sent while on duty, and (3) it was reasonable for the officer to expect that his texts would be subject to audit given his role as a police officer.

United States Supreme Court Concludes that Every Time a Discriminatory Practice is Used, it Gives Rise to Discrimination Claim

2010-05-24T16:20:00.000-06:00

In a decision issued May 24, 2010, the United States Supreme Court ruled that, in claims of disparate impact, every time a discriminatory practice is used a new cause of action arises, even if the decision establishing that practice was made after the statute of limitations has run. Justice Scalia, writing the opinion for the Court in Lewis v. Chicago, declared that, although the Court had ruled in a seemingly contrary fashion for disparate-treatment claims, the result was required by the statutory language, which expressly give a cause of action against an employer who "uses a particular employment practice that causes a disparate impact." The decision was unanimous.

Utah Health Care Facilities Not Immune for Negligently Credentialing Their Doctors

2010-05-17T20:00:00.000-06:00

On May 14, 2010, the Utah Supreme Court ruled that Utah health care facilities are not immune from claims brought by patients against them asserting that the facilities were negligent when they credential doctors or health care professionals at their hospitals. In Archuleta v. St. Mark's Hospital, the Court stated that "negligent credentialing is 'simply the application of broad common law principles of negligence,' and is a natural extension of torts such as negligent hiring."

Employers May Be Protected by Workers Compensation Decisions, But Third Parties Are Not.

2010-05-17T19:29:00.000-06:00

The Utah Supreme Court ruled on Friday, May 14, 2010, that a workers compensation decision holding that a worker's injuries were not caused by the operation of a machine could not be used by by the party that created or designed the machine in a later lawsuit if that party was not the worker's employer. The court reasoned in Gudmundson v. Del Ozone that because the third-party could not be a party to the workers compensation claim under the statutory scheme, it should not benefit by the decision. The court explained that such a decision would not promote judicial efficiency since a worker could not as a practical matter bring the third party into the workers compensation case and, therefore, to bring its claims against the third parties would have to assert the claims in a separate proceeding.

Airline and Railroad Companies Subject to New Rule.

2010-05-10T12:18:00.001-06:00

The National Mediation Board announced today that it would recognize an airline or a railroad union if a simple majority of ballots cast in an organizing election supported organizing a union. This Final Rule reverses an earlier rule that required a majority of the entire work force to favor unionizing. This is a major change that could have a substantial impact on the number of workplaces that will become unionized in these industries. The Board approved the change by a 2-1 vote with the Chair filing a stongly worded dissent.

Are You Ready for May 11, 2010? New Laws Affecting Utah Employers.

2010-04-30T16:18:00.001-06:00

The 2010 legislative sessions saw a lot of activity affecting employers and employees. Approximately fifty newly enacted laws will have some affect on employers and employees. With only two or three exceptions, all of these laws become effective May 11, 2010. (For a complete list of all the bills passed and their effective dates click here.)

A number of bills passed that added new elements to employee drug testing and background checking policies:

A number of laws relate to immigration issues:

There were amendment to the statutes governing unemployment:

There were amendments to the statutes governing workers' compensation:

Several pieces of legislation related to health insurance, underprivileged individuals, and individuals with disabilities:

A number of bills passed that modified and changed the licensing requirements for different professionals.

There were several significant bills that affected public employees benefits.

There were also statutes that applied generally to public entities:

Requiring Specific Employee Dress is Not Equivalent to Requiring a Uniform

2010-04-29T19:56:00.003-06:00

On April 29, 2010, the Utah Court of Appeals in Juricic v. Autozone, Inc., clarified that an employer may require a certain dress standard, including specifying the colors of shirts and pants to be worn at work, without such a requirement being considered a uniform. This is significant because it forecloses an employer from being required to reimburse employees for the purchase of such clothing under the Labor Commission's regulations. Specifically, the regulation states as follows: "Where the wearing of uniforms is a condition of employment, the employer shall provide the uniforms free of charge." Utah R. Admin. R610-3-21(A). The Court's ruling affirmed an earlier decision that Autozone, Inc., did not need to reimburse its former employee for ten years worth of clothing he purchased to comply with the dress code.

EMPLOYERS BEWARE! New Case Expands Employee Protection and Claims Substantially

2010-04-23T14:02:00.005-06:00

On April 23, 2010, the Utah Supreme Court substantially expanded the rights of employees to bring claims for emotional distress against former employers. In Cabanese v. Thomas, the Court ruled that the date the statute of limitations is triggered is "at the time the last injury occurred or the tortious conduct ceases." Accordingly, in repeated conduct cases, an employee can bring a claim for all conduct arising before the last event.

Moreover, the Court expanded the scope of recoverable damages by ruling that emotional distress and mental anguish damages are properly given in breach of employment contract cases when the contract (or employee handbook language) contemplates that an employee might suffer that type of injury when certain conduct occurs---such as when the handbook provides that the employer will not tolerate harassment.

Finally, the Court narrowly construed broad disclaimer language found at the beginning of the handbook that purported to disclaim contractual liability.

All employers should take a close look at their policies and amend them to limit their liability in light of this case.

Return of the Long Absent Employment Lawyer

2010-04-23T11:43:00.002-06:00

To all my readers:

Please excuse my absence for the past few months. Unfortunately, I have been heavily involved in litigation, etc., and have not had time to pay attention to my blog. I will now return my attention to it.

Look for more frequent updates

Bills to Be Considered by the Utah Legislature

2010-01-11T10:03:00.005-07:00

The Utah legislature will be in general session beginning January 25, 2010. It will be considering several bills that may have an impact on employers and employees throughout the state. To date the following bills have been introduced in the House:

House Bills:

H.B. 11, Licensing of Elevator Contractors and Elevator Mechanics. The bill provides for the licensing of elevator contractors and mechanics and continuing education requirements to retain licensure.

H.B. 17, Amendments to Programs for People with Disabilities. The bill modifies the Utah State Personnel Management Act to allow for the competitive career service schedule to include positions filled through an on-the-job examination intended to appoint a qualified person with a disability.

H.B. 18, Unemployment Insurance Amendments. The bill modifies the definition of the base period for qualification for unemployment insurance benefits.

H.B. 20, Amendments to Health Insurance Coverage in State Contract. This bill amends existing statutes that requires contractors with certain state entities to provide health insurance to their employees by, among other things, requiring waiting periods for coverage to be less than 90 days, clarifying that to be covered the employees or dependents must live in Utah, clarifying that the health insurance coverage required is a minimum standard, and defining what constitutes qualified health insurance coverage.

H.B. 23, Workplace Drug and Alcohol Testing. The bill amends statutory requirements for employer drug and alcohol testing, including provisions related to employer liability.

H.B. 27, Per Diem and Travel Expense Modifications. The bill modifies per diem and travel expense language used for boards, commissions, councils, and committees.

H.B. 28, Controlled Substance Database Amendments. This bill amends provisions requiring an individual who is licensed to prescribe a controlled substance or applying for a license to register to use the database and take tests related to the database.

H.B. 37, Criminal Background Checks on Motor Vehicle Dealers and Salespersons. This bill will require all applicants for a motor vehicle dealer or salesperson license to submit to a criminal background check.

H.B. 41, Constable Amendments. This bill amends what constables political subdivisions may hire.

H.B. 42, School District Employees - Career Status Requirements. This bill modifies the Utah Orderly School Termination Procedures Act regarding requirements for school district employees to obtain career status. It allows school districts to determine whether career status can be obtained after three, four, or five years.

H.B. 43, Unemployment Compensation Amendments. This bill modifies provisions in the Employment Security Act regarding the computation of benefits and the offset of Social Security benefits.

H.B. 51, Family Employment Program - Cash Assistance to Single Minor Parent. This bill modifies cash assistance to single minor parent provision of the Family Employment Program.

H.B. 73, Utah Construction Trades Continuing Education Amendments. This bill modifies the continuing education requirements for the construction trades.

H.B. 199, Municipal Clerk and Recorder Responsibilities. This bill allows legislative bodies of town to establish a director of finance position.

H.B. 211, Continuing Education Requirements for Landscape Architects. This bill provides that a landscape architects complete continuing education requirements.

H.B. 215, Amendments to Public Employees' Benefit and Insurance Program Act - Risk Pools. This bill amends the number of eligible full-time enrollees an institution of higher eduction must have in order to participate.

House Resolutions:

H.J.R. 3, Joint Resolution on Teacher Performance Pay. The resolution recommends that performance pay or differentiated pay plans for public school teachers be developed using guiding principles.

COBRA Subsidy Extended

2009-12-29T11:52:00.002-07:00

On December 19, 2009, President Obama signed the Fiscal Year 2010 Department of Defenses Appropriates Act . Although a defense appropriation bill, the legislation included provisions that extended and expanded the COBRA subsidy program that was enacted under the American Recovery and Reinvestment Act. Among other things, the bill provides that the COBRA premium subsidy is expanded from nine to fifteen months and extends the eligibility date to February 28, 2010.

What Are the Implications of the enactment of the ADA Amendments Acts?

2009-12-11T10:04:00.002-07:00

The ADA Amendments Act of 2008 was promulgated in reaction to a line of Supreme Court cases that had substantially narrowed the class of individuals covered by the the Americans with Disabilities Act. In fact, the findings and purposes found in section 2 of the Act make specific mention of the cases to be abrogated and identify that the Congress intends the reasoning of each of the cases to be rejected and a more liberal reasoning to serve as the basis for all further analysis of whether a person is disabled.

What the amendments and the proposed regulations that have been promulgated since the amendments were adopted suggest is that the question of whether a person has a disability will be much less of an issue in future ADA cases. This is expressly what the amendments contemplate: "it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." In fact, the EEOC's proposed rules have incorporated this presumption and have explicitly identified a number of "impairments [that] will consistently meet the definition of disability:" autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

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

2009-11-18T09:40:00.002-07:00

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.

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

2009-11-16T10:09:00.003-07:00

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.

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

2009-11-04T08:42:00.002-07:00

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.

Demotion Without Reduction in Pay is Not Appealable

2009-10-30T11:34:00.004-06:00

In Olson v. Utah Department of Health, the Utah Court of Appeals ruled that the Career Service Review Board (CSRB), established for review of certain disciplinary actions taken against state employees, did not have jurisdiction over the appeal of a disciplinary transfer of an employee. It ruled this way even though when originally transferred the woman had also received a cut in pay. Because her employer had determined to rescind the cut in pay, the CSRB determined that it no longer had jurisdiction after her original wage was restored. The Utah Court of Appeals agreed that for the CSRB to have jurisdiction over such disciplinary transfers there must be a reduction in pay as well.

Salt Lake City Considering Proposed New Ordinance Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity

2009-10-20T09:31:00.004-06:00

Salt Lake City Mayor, Ralph Becker, has proposed that the Salt Lake City Council consider the adoption of a new ordinance that would prohibit discrimination by any Salt Lake City employer who employs more than 15 employee from discriminating against an employee because of his or her sexual orientation or gender identity. The City Council will be briefed on the proposed new ordinance by the mayor's office in the City Council's Work Session today , October 20, 2009, at 3:00 p.m. The city council has issued a fact sheet explaining how any individual may submit comments. The agenda for the meeting is also attached.

Road Workers Not Discriminated Against Because of Political Affiliation

2009-10-19T11:50:00.002-06:00

In Trujillo v. Huerfano County Board, the Tenth Circuit Court of Appeals---the federal court having jurisdiction over Utah---ruled that two former road supervisors who had publicly supported a Democratic candidate for county commissioner had not been discriminated against when they were disciplined by a new Road Supervisor who had been installed shortly after the Republican county commissioner was sworn in. The Court ruled that the temporal proximity of the discipline was insufficient to establish political retaliation when other substantial evidence existed that showed the two other county commissioners---both Democrats---supported the changes that took place before the discipline occurred.

Caring For Sick Father Does Not Excuse Missing Appellate Deadline.

2009-09-24T12:42:00.003-06:00

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.

Can a Railroad be Liable for Using an After-Market Air Conditioner?

2009-09-23T10:45:00.006-06:00

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.

Are Deductions from Employee Wages Proper?

2009-09-14T11:35:00.003-06:00

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.

Salt Lake City Considering Antidiscrimination Ordinance to Prohibit Discrimination on the Basis Sexual Orientation and Gender Identity and Expression

2009-08-25T09:33:00.003-06:00

Salt Lake City Mayor, Ralph Becker, has declared his intention to deliver a nondiscrimination ordinance in mid-September that will recommend the adoption of an ordinance that will prohibit employers in Salt Lake City from discriminating against employees or applicants for employment on the basis of a person's "actual or perceived [sexual] orientation" or a "person's actual or perceived gender related identity." The ordinances would potentially exempt small employers, religious organizations, and governmental entities.

Court Upholds Dismissal of Police Officer for Failing to Properly Write Reports.

2009-08-24T17:47:00.002-06:00

In Boston v. Salt Lake City Civil Service Commission, the Utah Court of Appeals upheld the dismissal of a police officer because she had failed to give a field sobriety test when a situation warranted it and when she failed to properly write a report on a theft charge. The Court rejected the officer's argument that she had been treated more harshly than other officers.

Are You Prepared for New Return-to-Duty and Follow-Up Drug Testing Requirements?

2009-08-14T11:10:00.003-06:00

On July 30, 2009, the Department of Transportation issued a new final rule that will become effective August 31, 2009, requiring that all return-to-duty and follow-up drug tests be done pursuant to Direct Observation. Although the rule found at 49 CFR 40.67(b) was originally issued on June 25, 2008, because of intervening court action the final implementation of the rule was delayed.

An Employee Must Show Employer Knew Statements Were False or Recklessly Disregarded Truth in Making Defamation Claim.

2009-07-31T17:01:00.003-06:00

In a decision issued July 31, 2009, the Utah Supreme Court ruled that in order for an employee to prevail on a defamation claim against his or her former employer, the employee must show that the employer knew the statements were false or acted in reckless disregard of the truth of the statement. The case, Ferguson v. Williams & Hunt, Inc., involved a law firm's termination of an employee at the firm. The employer conducted an investigation of the employee's billing practices when it noticed a substantial deviation in the billing practices of the employee and the absence of the employee from the firm at times he claimed he billed large amounts of time. The firm conducted an investigation. After doing so, it concluded that the employee had overbilled his largest client. Accordingly, it fired the employee and told his client that the firm could not trust the accuracy of his bills. The employee's client subsequently terminated its relationship with him.

The employee sued the firm for, among other things, defamation. He argued that the purported investigation of his billing practices was flawed and did not take into account time away from the office that he spent billing. The Utah Supreme Court ruled that, because under Utah law the employer had a conditional privilege in its communication with the client, the employee had to show that the firm actually knew the communication was false or that the firm was reckless in establishing the truthfulness of the claims. It therefore ruled that the employee had no claim because the employee did not establish that the statements were knowingly false or were made with reckless regard for the truth.

Who Has Jurisdiction to Determine Whether a City Employee is At-Will or Not?

2009-07-31T16:37:00.002-06:00

In a decision filed July 30, 2009, the Utah Court of Appeals said that the proper place to appeal a city's employee appeal board's determination of the at-will status of one of its employees is a state district court. In Pearson v. South Jordan Employee Appeals Board, the Court stated that despite relevant statutory language authorizing a direct appeal to the Court of Appeals from any "final action or order of the appeal board," because the appeal board did not have statutory authority to review the determination of the at-will status of the employee, the only appeal proper venue to appeal that determination was the district court under the authority of a different statute.

What does this mean? It means if an appeals board determines that an employee is at-will, the employee must first appeal that decision to the district court. However, if the appeals board determines that an employee is not at-will and the employee loses his underlying appeal to the board on its merits, the employee must file the appeal with the Utah Court of Appeals.

The Utah Court of Appeals Reverses City's Termination Decision for Failure to Give Adequate Notice.

2009-07-23T11:08:00.006-06:00

On July 23, 2009, the Utah Court of Appeals reversed a decision by the Sunset City Appeal Board's affirming the termination of a police officer, declaring that Sunset City had failed to give the employee adequate notice when it sent notice only by certified mail. In Becker v. Sunset City, the Court explained that because the notice of the hearing was sent only one week before the hearing by certified mail which would require Mr. Becker to be at home at the time of delivery, the employee did not receive adequate notice. The Court held that the city was required to do more to ensure that the employee received actual notice such as "[s]ending the notice by both certified and regular mail, placing a phone call to inform Becker of the imminent hearing, or hand delivering a copy of the notice." The Court further found that Sunset City improperly refused to grant a continuance of the hearing under the circumstances.

Utah Supreme Court Affirms Labor Commission's Discretion in Partial Disability Determinations.

2009-07-21T11:56:00.003-06:00

In LPI Services v. McGee, the Utah Supreme Court ruled on July 21, 2009, that the Labor Commission had discretion to make rules as to what the phrase "other work reasonably available" meant under the permanent total disability provisions of the Workers Compensation statute. The employer of a former employee who had been injured on the job argued that, because the legislature had specifically included at least five considerations the Labor Commission must assess, the Labor Commission was statutorily prohibited from considering any other factors. The Supreme Court rejected the argument concluding that the legislative history demonstrated that the five factors were not intended to be exclusive. Accordingly, the Court affirmed the finding of permanent total disability based upon an analysis that included factors in addition to the five identified in the statute.

Union Arbitration Award Successfully Vacated.

2009-07-17T13:25:00.003-06:00

The Tenth Circuit Court of Appeals, the federal appellate court having jurisidiction over Utah, affirmed a district court's vacation of an arbitrator's award in a union dispute. While acknowledging that "judicial review of arbitral decisions is among the narrowest known to law," the Court in Air Methods Corporation v. Office and Professionl Employees International Union agreed with the trial court that the arbitrator had incorrectly awarded relief to the Union. Specifically, the court stated that the arbitration award "did not draw its essence from the [collective bargaining agreement] because it was contrary to the express language of the contract and [was] without factual support in light of the working and purpose of . . . the agreement as shown by the language, context, past practice, and negotiating history."

This case is noteworthy because vacating an arbitrator's award is an extremely rare occurrence.

Are You Ready for the New Minimum Wage? (Corrected)

2009-07-13T17:35:00.004-06:00

As many employers know, July 24th is an important date. Due to amendments that occurred within the last couple of years, the minimum wage payable to employees will be increasing on that date. On July 24, 2009, the rate will increase to $7.25 per hour.

Act Intending to Increase Warning of Layoffs Introduced.

2009-07-08T09:31:00.003-06:00

On June 25, 2009, legislation was introduced in the Senate and the House to amend the Worker Adjustment and Retraining Notification Act (WARN). The Act entitled the FOREWARN Act would now require employers of 75 employees (rather than 100 under the WARN Act) to warn employees of potential layoffs of 25 or more workers (the WARN Act had the threshold at 50 workers) more than 90 days (up from 60 days under the WARN Act) before the layoffs are to occur. The Act also increases penalties to double back pay.

Employee Free Choice Act of 2009

2009-07-08T08:58:00.008-06:00

A recent visitor to this blog asked a question about the Employee Free Choice Act of 2009.

Dear Mr. Crook:

Any updates on the Employee Free Choice Act?

Would you be able to comment on how this act may affect public employers? If passed, would it make it nearly impossible for public employers to keep unions out? I've read where "newly certified unions would enter binding arbitration if they cannot reach agreement on an initial contract after 90 days of negotiations."

Thank you!

Signed,

Very Concerned HR Professional

The Employee Free Choice Act of 2009 was introduced in the House as H.R. 1409 and in the Senate as S. 560. The legislation amends the National Labor Relations Act (NLRA) in an attempt to make it easier for employees to form or join a labor union at their place of employment by allowing certification of a Union without a secret-ballot election if "a majority of the employees in a unit appropriate for bargaining has signed valid authorizations." The legislation further requires an arbitration panel to resolve any dispute that prevents the entry of a collective bargaining agreement within 120 days of a newly formed unit. The legislation also strengthens enforcement mechanisms to protect against employer violations of the NLRA during the formation process.

The legislation has been referred in the House to the House Subcomittee on Health, Employment, Labor, and Pensions and in the Senate to the Committee on Health, Education, Labor, and Pensions.

The legislation does not affect public employers at all since it does not include any language expanding the NLRA's reach to federal or state governments or their agencies.

Supreme Court Rules that City Violated Title VII When It Threw Out Test Results Because of Its Fear of Violating Title VII.

2009-06-29T10:52:00.003-06:00

In an opinion issued today entitled Ricci v. DeStefano, the United States Supreme Court ruled that the city of New Haven, Connecticut violated Title VII when it "threw out" promotional examination results after it discovered that the results disproportionately favored non-minority test takers.

Although the city had carefully planned the test and hired an organization to design the test to assure racial neutrality, the test results showed a significant disparity in results. There was no question that the results established a prima facie case of disparate-impact discrimination---a policy or practice that produces a disparate impact on a protected minority group. There was also no question that throwing the test results out would constitute disparate treatment discrimination because it would harm successful test takers based solely on their race, i.e., because they were white and received a high score, there test results would be thrown out. This put the city in an uncomfortable position---it had to determine whether to throw-out the test results and risk a lawsuit by the successful applicants for disparate-treatment discrimination or certify the test results and risk a lawsuit by the unsuccessful applicants for disparate-impact discrimination. The city chose the former and risked the lawsuit with the successful applicants.

Thus, the question for the Supreme Court was "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination."

The Court answered the question in this way: "[B]efore an employer can engage in intentional discrimination for the asserted purposes of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action." In other words, there must be strong evidence to support the fear of liability for the disparate results complained of before an employer may take any race-conscious action.

In this case, the Court ruled that the city of New Haven did not have strong evidence of such liability and, therefore, ruled that the act of throwing out the tests was a violation of Title VII.

United States Supreme Court Rules that to Prove Age Discrimination Age Must Be More than Just a Motivating Factor

2009-06-19T09:42:00.004-06:00

On Thursday, June 18, 2009, the United States Supreme Court ruled that in order to prove age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), a person must prove more than that age was a "motivating factor." Instead, the Court stated in its opinion entitled Gross v. FBL Financial Services, Inc., that "a plaintiff must prove by a preponderance of the evidence . . . that age was the 'but-for' cause of the challenged employer decision." In other words, "that age was the 'reason' that the employer decided to act." This decision sets ADEA claims apart from discrimination claims brought under Title VII, which allow people to bring claims if race, color, sex, religion, or national origin was simply "a motivating factor for any employment practice, even though other factors also motivated the practice."

Utah Court of Appeals Affirms Penalty for Fraud in Unemployment Application.

2009-06-04T11:27:00.004-06:00

On June 4, 2009, the Utah Court of Appeals affirmed the Department of Workforce Services' assessment of a penalty against an unemployment benefits recipient who failed to disclose that she worked during weeks in which she received unemployment benefits. In Mugleston v. Department of Workforce Services, the Court ruled that despite the recipients claims that "she did not knowingly submit incorrect information," the recipient "was accountable for the information in the claimant guide and the information presented to her in the initial claim instructions," which both notified her "that she was required to report work performed, regardless of when she was paid for such work." The Court agreed that the woman had willfully misrepresented or concealed the information.

Interesting and Funny Employee Orientation Videos.

2009-06-03T17:45:00.005-06:00

I thought it might be interesting to take a break from the more mundane employment law topics for a change. In preparing for employee training for one of my clients, I recently did a search of You Tube to find some entertaining and/or funny employee orientation videos. I was able to find a few I thought were entertaining. Enjoy.

When is a Sarbanes-Oxley Retaliation Claim Timely?

2009-06-02T09:42:00.004-06:00

In Rzepiennik v. Archstone-Smith, Inc., the Tenth Circuit Court of Appeals, the federal circuit having jurisdiction over Utah, considered the question of when a retaliation claim under the Sarbanes-Oxley Act (SOX) is considered timely. The employee in the case contended that his employer had retaliated against him when he reported financial irregularities internally by terminating his employment. After his termination and during an investigation of the claims, he alleged that his employer offered him an incentive bonus of $255,589 for his work only if he agreed "1) not to disclose to any person or regulatory agency the facts about the alleged fraud or [the employer's] investigation, and 2) to return to [the employer] all documents and copies he possessed relating to his allegations." This offer was made on August 20, 2003, and it gave him 21 days to accept the terms. On September 12, 2003, he attempted to negotiate the terms but the employer refused to change the terms.

On December 15, 2003, he filed a complaint with the Occupational Safety and Health Administration (OSHA), the agency responsible for SOX compliance. The Court ruled that the filing was late because it had been more than 90 days---the statute of limitations time period---since the illegal offer was made. The employee, among other things, contended the proper trigger date was September 12, 2003, the date the offer expired and the date of his negotiations with the employer. The Tenth Circuit rejected that argument, ruling that the discriminatory act was the employer's illegal offer and it was made on August 20, 2003. The Court also considered and rejected the argument that the Lilly Ledbetter Fair Pay Act applied to SOX violations.

Utah Employment Selections Procedure Act Amended.

2009-06-01T10:11:00.003-06:00

The Utah Employment Selections Procedure Act was amended in the recent special legislative session. The amendment clarifies and expands the times that birthdates, social security numbers, and drivers license numbers can be requested. However, the law continues to restrict the use of this information and continues to require a document retention policy.