Tag Archives: Utah

DOL Partnership regarding worker misclassification — 34 States and Counting

Thirty-five states have agreed to “team up” with the US Department of Labor to investigate worker misclassification. Is your state one of them?

In 2015, Department of Labor launched an initiative to combat the misclassification of employees as independent contractors. As a part of this initiative, the Department of Labor sought to partner with the state agencies and agree to share information and conduct joint investigations regarding independent contractor misclassification. To date, 35 states have entered into a memorandum of understanding regarding worker misclassification issues.

These states are:

  • Alabama
  • Alaska
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Florida
  • Hawaii
  • Idaho
  • Illinois
  • Iowa
  • Kentucky
  • Louisiana
  • Maryland
  • Massachusetts
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • New Mexico
  • New York
  • North Carolina
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Dakota
  • Texas
  • Utah
  • Vermont
  • Virginia
  • Washington
  • Wisconsin
  • Wyoming

What does this mean for employers in these states?

Employers in the above-listed states should expect collaborative efforts between their state agencies and the Department of Labor during a investigation into potential employee misclassification as the state and the Department of Labor will share information. This could lead to simultaneous, multi-agency investigations into worker classification. It is recommended that companies have qualified legal counsel review any existing independent contractor arrangements. In addition, before entering into an independent contractor relationship, speak with an HR Professional or qualified legal counsel to verify that the worker truly is an independent contractor.

New Utah Law Requires Computer Technicians to Report Child Pornography

Utah has enacted a new law (House Bill 155) relating to child pornography. Under this new law, a “computer technician” who finds (or “views”) “an image on a computer or other electronic device that is or appears to be child pornography is now required to report that finding to either:

  1. a state or local law enforcement agency,
  2. the Cyber Tip Line at the National Center for Missing and Exploited Children; or
  3. an employee designated by the employer to receive the report of the image (this employee must then report to images to the above-listed authorities).”

Under this new law, a “computer technician” is defined as an individual who in the course and scope of his/her employment is paid to install, maintain, troubleshoot, upgrade, or repair computer hardware, software, personal computer networks, or peripheral equipment.

Failure to report these images is a class B misdemeanor.

Recommendation for Utah employers

Due to the broad definition of the term “computer technician,” it is likely that most, if not all, information technology (“IT”) employees will be covered by this new law. It is recommended that employers with IT staff should both train those employees on the law. Employers should also consider developing a reporting procedure that directs all IT staff to report any images to a single authorized employee within the organization.

New Utah Law Requires Employers to Provide Reasonable Accommodation to Pregnant Employees

The Utah Antidiscrimination Act already prohibited employers from discriminating against employees on the basis of pregnancy, childbirth, or pregnancy-related conditions, but a newly enacted amendment to that Act (Senate Bill 59) now requires Utah employers to provide reasonable accommodation for pregnant employees.

Under the new law, an employer is prohibited from:

  1. Refusing to provide reasonable accommodations for an employee related to pregnancy, childbirth, breastfeeding, or pregnancy-related conditions if the employee has requested an accommodation;
  2. Requiring an employee to terminate employment (or take a leave of absence) if another reasonable accommodation can be provided to accommodate the employee’s pregnancy, childbirth, breastfeeding, or pregnancy-related condition; and,
  3. Denying employment opportunities to an employee, if the denial is based on the employee’s need for a reasonable accommodations related to her pregnancy, childbirth, breastfeeding, or pregnancy-related conditions.

An employer may be excused from providing reasonable accommodation to an employee for pregnancy, childbirth, breastfeeding, or pregnancy-related conditions if the employer can demonstrate that the accommodation would create an undue hardship on the operations of the employer. An “undue hardship” is defined in the Act as “a requirement that would cause the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s operations.”

Employers may require the employee to provide certification from the employee’s health care provider concerning the medical advisability of a reasonable accommodation. If a certification is required by the employer, it shall include the following elements:

  1. The date the reasonable accommodation becomes medically advisable;
  2. The probable duration of the reasonable accommodation; and
  3. An explanatory statement as to the medical advisability of the reasonable accommodation.

Employers may not require an employee to provide medical certification for “minor” accommodations (e.g. the need for more frequent restroom, food, or water breaks). In addition, employers are not required to permit the employee to have her child at the workplace for purposes of accommodating pregnancy, childbirth, breastfeeding, or related conditions.

Finally, the new law requires employers to notify employees of their rights to reasonable accommodations for pregnancy, childbirth, breastfeeding, or related conditions. This notice may be given by including a provision in the employee handbook relating or by posting a written notice in a conspicuous place in the workplace.

Recommendation for Utah employers

In light of this new law, Utah employers should consider either (1) adding a pregnancy-related reasonable accommodation policy to their employee handbooks or (2) developing a written notice advising employees of their rights under this law.

New Limitations on Post-Termination Noncompete Agreements in Utah

With a stroke of the pen, Utah Governor Gary Herbert has signed into Utah law the Post-Employment Restrictions Act. This act sets a maximum limit on the duration of post-employment noncompete agreements between employers and employees. This new law goes into effect on May 10, 2016 and applies to all agreements entered into on or after that date.

Under the new law, a noncompete provision in a “post-employment noncompete agreement” can only be for the maximum period of one year from the employee’s date of separation. Any “post-employment noncompete agreement” that contains a noncompete restriction of more than one-year will be void.

A “post-employment noncompete agreement” is defined as “an agreement, written or oral, between an employer and employee under which the employee agrees that [he or she], either alone or as an employee of another person, will not compete with the employer in providing products, processes, or services that are similar to the employer’s products, processes, or services.”

The new law does not affect nonsolicitation agreements, nondisclosure agreements, or confidentiality agreements. Additionally, a “reasonable” severance agreement can contain a longer noncompete restriction provided that the severance agreement was “mutually and freely agreed upon in good faith at or after the time of termination”. A post-employment restrictive covenant related to or arising out of the sale of a business is also not subject to this restriction provided that “the individual subject to the restrictive covenant receives value related to the sale of the business.”

Impact on Utah Employers

This law has a significant impact on employers who employ persons in Utah. If your Company requires its Utah employees to sign agreements with post-employment restrictions, it is recommended that you review these agreements to ensure that any noncompete restriction complies with the new law.

Terminating An Employee For Acting In Self-Defense Can Amount To Wrongful Termination

In a recent case (Ray v. Wal-Mart Stores), the Utah Supreme Court found that terminating an employee for acting in self-defense can amount to wrongful termination of employment if the employee:

  1. Reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm, and
  2. Has no opportunity to withdraw from the situation.

In this case, the plaintiffs were five former employees of Wal-Mart stores who had been terminated from their employment with Wal-Mart because of how they handled two different shoplifting incidents.

In the first incident, the suspected shoplifter pulled out a knife and threatened to stab the two employees after they confronted her. The employees did not release her, but instead wrestled the knife from the shoplifter.

In the second incident, three employees caught a man stealing a laptop and brought him into the back room. Once there, the shoplifter pulled out a gun on the employees. The employees engaged in a struggle with the shoplifter, pinned him against the wall, and took the gun away. Following these incidents, the employees were terminated for violating Wal-Mart’s no confrontation policy, which requires employees to “disengage” from an individual with a weapon or who becomes violent, “withdraw to a safe position, and contact law enforcement.”

In finding that the employees were wrongfully terminated in violation of public policy, the Court explained that the right of self-defense is recognized by the Utah Constitution, state statutes, and common law and “a policy favoring the right of self-defense protects human life and deters crime, conferring substantial benefits on the public.” The Court further explained that under certain circumstances the right of an employee to defend himself outweighed the employer’s business interests – specifically when the employee reasonably believes that he is in danger of serious harm and the employee is unable to escape the situation. In evaluating the facts of this case, the Court found that the employee’s actions were in the interest of public policy and their termination from employment was, as a result, unlawful.

How should employers react to this case? In general, employees should be discouraged from engaging in “vigilantism.” However, before terminating an employee for addressing a dangerous situation in a manner that violates a company policy of “walking away,” employers might want to consider whether the employee was acting in self-defense and whether termination is the best course of action.

Utah Supreme Court – Handbook Disclaimers, A Must

In a recent decision, the Utah Supreme Court stressed the importance of including a disclaimer in employee handbooks. In Tomlinson v. NCR Corporation, plaintiff sued for wrongful termination alleging that he was not an at-will employee but, rather, he had an employment contract with NCR.  Plaintiff claimed that NCR’s employment policy handbook created an implied in fact contract.

NCR’s handbook contained a policy stating the following:

“NCR managers to review an employee’s performance to assess the performance gap, prepare a PIP with clear goals and a timetable for improvement, deliver the PIP to the employee with detailed instructions, and conduct routine follow-up sessions to assess the employee’s progress. If an employee meets all of the performance goals, managers are instructed to “formally close out the ‘PIP’ with the employee.”

Plaintiff argued that this provision created an implied in fact contract of continued employment.  Plaintiff also pointed to the fact that NCR’s handbook did not contain a disclaimer (i.e., a statement that nothing in the handbook could be construed as eroding the at-will employment status).

The court ultimately held that the absence of such a disclaimer does not alone create a contract for continued employment, however, disclaimers are important and should be included in handbooks as a matter of good practice.

Sexual Orientation/Gender Identity Discrimination Unlawful in Utah

On March 12, 2015, the Utah Antidiscrimination Act was amended.  The new amendment prohibits employment discrimination on the basis of an individual’s sexual orientation and gender identity.

The law adds sexual orientation and gender identity as prohibited bases for discrimination in employment and requires employers to adopt rules and policies that permit employees to dress and utilize sex-specific facilities consistent with their gender identify.