NY Times Details the Proliferation of Compelled Arbitration Agreements in Consumer Transactions, Health Care Claims and Employment Relationships

The New York Times completed a three-part series on the increasing use of arbitration provisions in consumer transactions and employment relationships yesterday.  The series slams the use and proliferation of mandatory arbitration provisions contained in agreements where there is unequal bargaining power and leverage between the contracting parties.  It outlines the use of arbitration agreements to defeat class action lawsuits, the use of arbitration agreements in health care and the proliferation of such agreements in employment arrangements. For example, data cited by the NY Times found that the number of lawsuits forced into arbitration has been on a steady rise over the past decade, and highlights the fact that citizens are being denied their right to a jury trial under the U.S. Constitution.  While the issue is much more complicated then the series would have you believe, there is no question that the growth of arbitration has been a very effective tool in defending against litigation.  This is an excellent series that should be read by businesses, consumers, lawyers and consumers.

You can access the first installment of the series here.  The first article in the series focuses on the rise of arbitration agreements in all types of transactions, and U.S. court's overwhelming acceptance of such agreements following the U.S. Supreme Court's holdings in key cases involving the Federal Arbitration Act, including American Express Co. v. Italian Colors Restaurant and Oxford Health Plans v. Sutter. 

You can access the second installment here.  The second article focuses on how arbitration privatizes the judicial process and strips citizens of their right to a jury trial. It highlights potential problems that arise with arbitration, including conflicts of interest and procedural unfairness.

You can access the third installment here. The third article discusses the use of religious arbitration and other non-traditional methods of resolving disputes  and the challenges of requiring persons to submit claims in such proceedings.

If you have questions about the use of mandatory arbitration, challenges to arbitration provisions, or questions about the Federal Arbitration Act or Utah's Arbitration Act, please call our office at (801) 758-7604 and speak to one of our litigation attorneys, or you can visit us online at www.utahtriallawyers.net.

Utah Supreme Court Addresses Wrongful Termination Claims Yet Again

In September, 2015 the Utah Supreme Court issued another opinion further clarifying the scope of Utah's judicially created wrongful termination in violation of a clear and substantial public policy claim. We last addressed this claim in August when the Court decided Pang v. International Document Services, 2015 UT 63, where the Court held that a former in-house counsel's complaint did not sufficiently plead a claim for relief for wrongful termination based upon Rule 1.13(b) of the Utah Rules of Professional Conduct - which requires in-house counsel to report suspected unlawful activity to its client - because the Rule did not constitute a clear and substantial public policy (but instead regulates the relationship between a lawyer and his client which the Court somehow found was not a sufficiently clear public interest).

In Ray v. Wal-Mart Stores, Inc., 2015 UT 83, the Utah Supreme Court answered a certified question from the United States District Court of Utah regarding the scope of Utah's judicially created wrongful termination claim.  Ray addressed whether the right of self-defense is a substantial public policy exception to the at-will employment doctrine that provides the basis for a wrongful discharge action. In Ray the Court concluded that the policy favoring the right of self-defense is a public policy of sufficient clarity and weight to qualify as an exception to the at-will employment doctrine, but limited the exception to situations where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw.

Ray involved two incidents at two Wal-Mart stores where a number of employees were fired after using force against armed shoplifters. The employees purportedly violated Wal-Mart's policy that required the employees to disengage and withdraw from apprehending shoplifters who have a weapon. In one situation, the shoplifter had a knife. In the other, the shoplifter had a gun.

Although the Court acknowledged that Wal-Mart's interest in regulating its workforce is important, it  concluded that there is a clear and substantial public policy in Utah favoring the right of self-defense for three reasons. First, the right of self-defense is enshrined in Utah statutes, the Utah Constitution, and our common law decisions. Second, a policy favoring the right protects human life and deters crime, conferring substantial benefits on the public. And third, the public policy supporting the right of self-defense outweighs an employer‘s countervailing interests in circumstances where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily injury and the employee has no opportunity to withdraw.

If you have questions about Ray or Pang, or the scope and application of Utah's judicially created wrongful termination in violation of a clear and substantial public policy claim, please call Stavros Law at (801) 758-7604 and speak to one of our experienced Utah employment law attorneys.  You can also contact us online at www.utahtriallawyers.net.

Utah Supreme Court Upholds Dismissal of In-House Counsel's Wrongful Termination Claim

The Utah Supreme Court issued a decision on August 5, 2015, Pang v. International Document Services, 2015 UT 63, upholding the dismissal of a in-house counsel's complaint alleging that he was terminated for refusing to violate usury laws and the Utah Rules of Professional Conduct. Pang, an at-will employee, asserted that his employer had asked him to violate Rule 1.13(b) of the Utah Rules of Professional Conduct in order to keep his job.  The Court held that his firing did not constitute wrongful termination because it did not violate a clear and substantial public policy of the State of Utah, and even if it did, other rules within the Utah Rules of Professional Conduct evince  strong policy choices that favor of allowing clients to terminate the attorney-client relationship at any time.

The Court began its analysis by noting that in Utah the presumption is that all employees are employed at-will and may be terminated for any reason or no reason, with or without notice. One exception to the at-will presumption, however, is an employer's wrongful termination of an employee in violation of a clear and substantial public policy. In order to state such a claim, an employee must prove (i) that his employer terminated him; (ii) that a clear and substantial public policy existed; (iii) that the employee's conduct brought the policy into play; and (iv) that the discharge and the conduct bringing the policy into play are causally connected.  

In Pang, the Supreme Court emphasized that the notions of "public policy" in this wrongful termination claim are much more narrow and limited than generalized notions of public policy.  Accordingly, to support a wrongful discharge claim under the public policy exception, the Court stated that "Mr. Pang‘s complaint must identify a public policy ―so clear and weighty, and as to which ―the public interest is so strong that the policy should be ―place[d] . . . beyond the reach of contract."  In order to make that determination, the Court, citing to its prior decisions, said it looks at the following factors:

(1) whether the policy at issue is reflected in authoritative sources of state public policy;

(2) whether the policy affects the public generally as opposed to the private interests of the employee and employer; and

(3) whether countervailing policies outweigh the policy at issue. 

Pang argued that prior Supreme Court decisions had established that an employer may not terminate someone for (1) refusing to commit an illegal act, (2) performing a public obligation, (3) exercising a legal right or privilege, or (4) reporting illegal activities to a public authority. The Court dismissed Pang's first argument, however, saying that his complaint failed to include allegation that his employer made him perform an illegal act and his refusal to perform such an act. With respect to the three remaining arguments, the Court held that because Rule 1.13 does not establish a clear and substantial public policy, his claim ultimately failed.

Importantly, the Court did not restrict an in-house lawyer's ability to bring such a claim, and did not decide whether the Utah Rules of Professional Conduct constitute "judicial decisions" that could independently establish an exception to at-will employment, but instead found that Rule 1.13 governs relations between attorneys and their clients "not broad matters of public importance" and that those same rules articulate other countervailing policies. As the Court stated:

                "We emphasize, however, the narrow scope of our decision today—

                 we do not hold that in-house attorneys may never raise a wrongful 

                 termination claim, nor do we foreclose the possibility that an attorney 

                 fired for complying with an ethical rule, such as reporting criminal 

                 activity to public authorities under rule 1.6, could ever make out such 

                 a claim. We hold only that an attorney‘s duty to ―report up illegal 

                 activity to an organizational client‘s highest authority is not founded 

                 in the type of clear and substantial public policy that qualifies as an 

                 exception to the at-will employment doctrine. We leave these broader 

                 issues to a future case that squarely presents them."

For more information about the Court's decision, contact one of the employment law attorneys at Stavros Law at (801) 758-7604, or visit our website on-line at utahtriallawyers.net.

U.S. Department of Labor's Wage & Hour Division Issues Guidance on Worker Classification under the Fair Labor Standards Act

Today, the United States Department of Labor's Wage & Hour Division issued guidance on the Fair Labor Standard Act's (FLSA) "suffer or permit to work" standard regarding the classification of workers as employees or independent contractors under FLSA.  You can read the guidance here.

Recognizing an increasing number of complaints from workers about being treated as independent contractors by employers, the DOL determined it may be helpful to provide additional guidance on the issue of what workers qualify as employees or independent contractors.

In its guidance, the DOL stresses that most workers should be classified as employees and emphasizes that the economic realities test should be applied broadly to take into account the remedial purposes of FLSA. The DOL's guidance reiterates that the FLSA "defines 'employee' as 'any individual employed by an employer,' 29 U.S.C. 203(e)(1), and 'employer' as including 'any person acting directly or indirectly in the interest of an employer in relation to an employee,' 29 U.S.C. 203(d). The FLSA’s definition of 'employ' includes to suffer or permit to work. 29 U.S.C. 203(g). This 'suffer or permit' concept has broad applicability and is critical to determining whether a worker is an employee and thus entitled to the Act’s protections."

Under the economic realities test, Court's typically look at 1) the extent to which the work performed is integral to the employer's business; 2) whether the worker has an opportunity for profit or loss; 3) the extent of each party's investment in the relationship; 4) whether the work performed requires special skills and initiative; 5) the permanency of the relationship; and 6) the degree of control exercised or retained by the employer.  Generally, workers who are in business for themselves, have a true risk of loss and operate a business independent on the relationship with the employer are independent contractors. In contrast, workers who are economically dependent on the employer are employees.  See Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998) (the economic realities of the relationship govern, and the focal point is whether the individual is economically dependent on the business to which he renders service or is, as a matter of economic fact, in business for himself).

While the DOL's Administrative Guidance 2015-1 outlines the factors to consider when determining whether a worker is an employee or independent contractor, it is most significant in regard to the emphasis placed by the DOL on enforcing compliance and stomping out employee misclassification. As such, employers who have a question about appropriate classifications - or employees who believe they have been misclassified - should contact a competent wage and hour attorney to discuss their legal issues.

For more information about this guidance, or independent contractor/employee classification issues, please contact one of our Utah employment lawyers at (801) 758-7604, or visit us online at www.utahtriallawyers.net.  Our Utah lawyers can assist you with any issues you may have, including audits, lawsuits, investigations and compliance issues.

DOL Announces Sweeping Proposed Changes to FLSA Overtime Salary Basis Test

The U.S. Department of Labor issued proposed rules increasing the minimum salary for exempt employees from $23,660 (or $455 per week) per year to $50,440 per year (or $970 per week).  For more information about the proposed rules, go here.

The proposed regulations would alter what is typically called the "salary basis test."  Under current law, exempt employees need to earn at least $455 per week to maintain exempt status. Under the proposed rules, that amount would more than double to $970 per week. In addition, this new amount would be tracked to other increases to adjust over time, and the DOL would be able to update the salary basis amount on an ongoing basis without new rulemaking.

If approved, the new regulations would be a major victory for workers, and would impact millions of low and middle income families current paid on a salary basis who are classified as exempt and not entitled to overtime for hours worked in excess of 40 hours per week.  It will likely also change the way employers hire and classify workers, and will likely require employers to reconsider attempts to move employees from non-exempt to exempt status.

Under the Fair Labor Standards Act (FLSA), employees are entitled to overtime compensation unless they are properly classified as exempt from such requirements.  Many employees are misclassified or not paid for all overtime hours worked in a workweek.

If you have questions about the Fair Labor Standards Act, its overtime and minimum wage obligations, or any other issue, please call one of our Utah employment lawyers at (801) 758-7604 or visit Stavros Law online at utahtriallawyers.net for more information.

Right to Same Sex Marriage Affirmed by United States Supreme Court in Landmark 5-4 Decision

In a decision certain to invoke heavy debate across the United States, the U.S. Supreme Court held that same-sex couples have a right to marry under the United States Constitution's equal protection clause in a landmark decision written by Justice Kennedy.  Kennedy's written decision, which was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, held that the Fourteenth Amendment's equal protection clause prohibits states from denying marriage rights to same sex couples.

To read the Supreme Court's decision, go here.  The decision will have wide ranging impact on tax, estate planning and employment benefit issues. You can also access articles on the decision here and here.

If you have questions about the decision, please contact one of our employment law attorneys at (801) 758-7604, or you can contact us online at utahtriallawyers.net.

United States Supreme Court Affirms the Viability of Disparate Impact Claims under the Fair Housing Act (FHA)

The United States Supreme Court on Thursday held that disparate impact claims are permissible under the Fair Housing Act of 1968, relying on the application of similar language in Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act (ADEA), in a decision written by Justice Kennedy.  

The Court's decision in Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project, Inc. extended the use of disparate impact claims to root out policies and other practices that have a discriminatory impact.  More information on the decision can be found here.

For information about housing-relating discrimination claims, including disparate treatment and disparate impact claims, you can call one of our Utah employment law attorneys at (801) 758-7604 or contact us online at utahtriallawyers.net.

Employer Interference with Family and Medical Leave Act ("FMLA") Rights

Congress passed the Family and Medical Leave Act (FMLA) in 1993 in an attempt to balance the demands of the workplace with the needs of families. When a family emergency arises, the FMLA provides protection to employees by ensuring that employees are not asked to choose between their employment and their family obligations.  At its core, the FMLA  provides job security to employees who must miss work because of their own illnesses, to care for family members who have illnesses, or to care for newborns. 

To be eligible for FMLA leave,  an employee must have worked at least a year and at least 1250 hours in the past year, and work for an employer with at least 50 employees within 75 miles.  The employee can take leave for the following reasons: a) birth or newborn care; b) adoption or foster care; c) family care for a serious health condition; d) care for the employee's own serious health condition; e) qualifying exigency due to family member in the military; or f) care of a covered service member with a serious injury or illness by family or next of kin.

To invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to take leave.  Where leave is unforeseeable, the employee must notify the employer as soon as possible. If the leave is foreseeable, the employee must provide advance notice of leave. An employee, however,  is not required to specifically request FMLA leave to satisfy the notice requirement.   The employee requesting leave does not need to specifically invoke the FMLA, or say "I need to take FMLA leave." It is enough if an employee informs her employer of the need for leave from work for a medical reason or other qualifying reason. Verbal notice is sufficient, and employee need only give enough notice that the employer is aware the leave may be qualifying. 

             

An eligible employee who gives notice of leave cannot have its FMLA rights interfered with, or otherwise be retaliated against for taking FMLA leave. Interference with FMLA rights can take a variety of forms, including: a) discouraging an employee from taking leave; b) refusing to authorize leave for FMLA qualifying reasons; c) manipulation by an employer to avoid FMLA obligations, such as reducing work hours; d) modifying an employee's duties to preclude leave; e) attaching negative consequences to taking FMLA leave in order to dissuade employees from taking leave; f) failing to reinstate an employee to the same or equivalent position following the return from FMLA qualifying leave; g) requiring excessive documentation to substantiate leave; h) mistreating FMLA leave as unauthorized leave; i) harassing an employee because of her leave or its affect on other employees; or  j) engaging in any other conduct that deters an employee from notifying an employer of her need for leave or taking FMLA qualifying leave.

If you have been denied FMLA leave, retaliated against for taking leave, harassed upon your return to work following leave, or terminated after you exercised your right to FMLA, you may have been denied your rights under the FMLA.  If you have questions about your situation, please feel free to contact one of our FMLA lawyers at 801-758-7604 or contact us online at www.utahtriallawyers.net.       

Making a Proper Demand for Payment of Wages Under the Utah Payment of Wages Act and U.C.A. § 34-27-1

A recent decision issued on May 7, 2015 by the Utah Court of Appeals, Francis v. National DME, 2015 UT App 119, underscores the importance of making a proper demand for wages prior to filing a lawsuit and seeking attorneys fees and costs under Utah Code Ann. § 34-27-1 (allowing recovery of attorneys fees to recover wages).

In Francis, National DME terminated Francis's employment after he failed to report to work for three consecutive days. He subsequently filed a wage claim with the Utah Labor Commission. Thereafter, Francis sent written demand for payment of wages he believed were owing, stating in his demand that he was owed more than $15,000 in commissions, among other damages.

At trial, the jury awarded Francis $24,000 in commissions. However, on appeal, the Court of Appeals struck the award, finding that the evidence submitted at trial only supported an award of $9,700 in commissions. Because the award was actually less than what was demanded, Francis was not entitled to attorneys fees and costs. Obviously, this type of result can be devastating to a client and his counsel, and may result in the loss of a significant amount of attorneys' fees that otherwise could have been recovered.

U.C.A. § 34-27-1 provides that whenever an employee brings suit for wages earned and a "demand has been made in writing at least fifteen days before suit for a sum not to exceed the amount so found due, then it shall be the duty of the court before which the case shall be tried to allow to the plaintiff a reasonable attorneys' fee in addition to the amount found due for wages, to be taxed as costs of suit." In interpreting Section 34-27-1, the Court of Appeals held that this provision requires that the demanded amount be more than the judgment obtained by the employee. As a result, Francis was not entitled to an award of attorneys' fees.

Francis deals with a common issue in wages claims - how to demand payment of wages for commissions that are due to an employee. Often, an employee who is paid wages on a commission basis does not know the exact amount of commissions owed to him at the time of his termination because all of the documents and information related to the commissions that are actually owed remain in the employer's possession. For example, commissions are typically owed to employees only after accounts are finalized, monies are paid for a sale or other conditions have been satisfied, such as a chargeback waiting period. In such situations, an employee is well advised to request a sum that is in alignment with what the employee knows is owed, and to include language indicating that if the sum is above such amount, the employee further requests payment of such amounts beyond the demanded amount. Alternatively, the employee may want to attempt to get commission records to establish the amount of commission that are due, and also review the applicable sales commission policy. If those documents are not available, an employee may be wise to send an initial communication about owed wages, followed up with a more specific demand for wages of a specific sum prior to filing a lawsuit.

In addition to the foregoing, there are a number of other strategies that can be used to get a better idea about the actual amount of commissions owed. If you have a claim for wages, or are defending against a wage claim, it's important to immediately attempt to determine the amount of wages at issue before proceeding at your own peril.  Please call one of our Utah employment law attorneys at (801) 758-7604 if you have questions about wage claims, or visit us online at utahtriallawyers.net for more information.

Employees Obtain Significant Victory In U.S. Department of Labor Administrative Review Board Ruling

The U.S. Department of Labor’s Administrative Review Board (ARB) issued a 3-2 decision in favor of a whistleblower, Robert Powers, in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034,  in a decision that was a resounding victory for employees asserting whistleblower claims.  In Powers the ARB held that the correct standard of proof was a contributing factor causation standard for retaliation claims brought under various whistleblower laws enforced by the U.S. Department of Labor. Prior to the decision in Powers, a whistleblower was required to show that his protected activity was the “but for” cause of his termination or other adverse employment action. After Powers an employee need only prove that the protected activity was a “contributing factor” leading to an adverse employment action.  This distinction is significant for many reasons, including, perhaps most importantly, an employee's ability to get to a hearing on the merits of his claims.  A "contributing factor" standard only requires a whistleblower to show that his protected activity was one of perhaps many factors that led to his termination or other adverse employment action. In contrast, a "but for" standard requires a showing that, but for the protected activity, the employee would not have been terminated. 

Powers involved a whistleblower claim under the Federal Rail Safety Act  (FRSA), 49 U.S.C.A. § 20109, as amended. Powers filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that his employer, Union Pacific Railroad Company (Union Pacific), violated FRSA by terminating his employment because he reported a work-related injury. After its investigation, OSHA issued a finding of reasonable cause for a violation. OSHA ordered relief that included Powers began working at Union Pacific in December, 1996. In May of 2007 he was operating a rail saw while working and he hurt his hand. He reported the injury to his supervisor, Leroy Sherrah.

His supervisor suggested that Powers take care of his hand over the weekend, and that they would fill out an injury report if it still hurt on Monday.  The following Monday Powers reported to his supervisor that he nursed his hand throughout the weekend, but still felt pain. Powers filled out an accident report.

Powers then sought treatment and an x-ray on his hand.  He was diagnosed with a contusion and tenosynovitis, and immobilized with a cast. He was placed on work restrictions that included no lifting over 5 to 10 pounds, and no heavy pulling, tugging or lifting. Union Pacific accommodated Powers' medical restrictions and put him on light duty that required him to prepare a truck in the morning, drive during the day, and occasionally lift objects under ten pounds. Further monthly medical examinations and work restrictions followed. 

In October 2007, Powers was "force recalled" to a higher paying system welding job. The manager for the job accommodated Powers' medical restrictions, but after two weeks informed Powers that he could no longer accommodate the restrictions. After his dismissal from the welding job, Powers took an unpaid medical leave of absence and filed for disability benefits with Union Pacific's private disability insurer and the Railroad Retirement Board.  When Powers returned with work restrictions, he was placed under surveillance by Union Pacific, and found to have been dishonest about his activities at home and not abiding by his work restrictions. As such, Union Pacific terminated Powers' employment following investigations and hearings. Powers grieved his termination to the Public Law Board, and obtained a reversal of his termination.  The decision was appealed, and the ALJ reversed, finding in Union Pacific's favor. The ALJ held that Powers did not show his protected activity was a contributing factor in the discharge because he had no direct evidence of retaliation and that his circumstantial evidence was insufficient.  

The ARB noted that under FRSA a railroad carrier "may not discharge ... or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act" involving one of various statutorily protected activities. 49 U.S.C.A. § 20109(a); 29 C.F.R. § 1982.102(b). The protected activities include "notify[ing], or attempt[ing] to notify, the railroad carrier ... of a work-related personal injury or work-related illness of an employee." 49 U.S.C.A. § 20109(a)(4); see also 29 C.F.R. § 1982.102(b)(l)(iv).  FRSA further provides: "A railroad carrier or person covered under this section may not discipline, or threaten discipline to, an employee for . . . following orders or a treatment plan of a treating physician." 49 U.S.C.A. § 20109(c). For purposes of subsection (c), "[t]he term 'discipline' means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee's record." Id.

Relying on the standards of proof for AIR21 claims, the ARB held that FRSA incorporated AIR 21's "two-part burden-shifting test." Under that test, a complainant must prove, by a preponderance of evidence, three specific elements: (1) that complainant engaged in a protected activity, as statutorily defined; (2) that he suffered an unfavorable personnel action; and (3) that the protected activity was a contributing factor in the unfavorable personnel action. Once the complainant makes that showing, the burden shifts to the employer to demonstrate by "clear and convincing evidence" that the employer would have taken the same unfavorable personnel action in the absence of the complainant's protected activity.  Under the law, a contributing factor includes any factor which tends to affect in any way the outcome of the decision.

In Powers, the ARB held that in determining whether a whistleblower has submitted sufficient evidence to prove contributing factor causation, legitimate, non-retaliatory reasons for employer action (which must be proven by clear and convincing evidence) may not be weighed against a complainant's showing of contribution (which must be proven by a preponderance of the evidence). Moreover, where the evidence is intertwined, the employer bears the risk that legitimate and non-legitimate reasons may not be separated. While anALJ may consider an employer's evidence challenging whether the whistleblower's actions were protected or whether the employer's action constituted an adverse action, as well the credibility of the whistleblower's causation evidence, it may not venture into legitimate, non-discriminatory reasons in challenging a prima facie case. 

The ARB further held that a whistleblower need not demonstrate an employer's retaliatory motive, and also has no obligation to disprove evidence of a subjective non-retaliatory motive in the context of advancing evidence supporting a showing of contributing factor" as part of a prima facie case.  Accordingly, the ARB found under the facts of the case that the ALJ committed error when it ruled Powers failed to show his termination was a contributing factor because the ruling was "based upon the subjective testimony of Company managers regarding their alleged legitimate business reasons for Powers' termination-evidence that is of highly questionable relevance to contribution." In relying on that subjective testimony by Company managers to rebut Powers' evidence of contribution, the ARB found the ALJ improperly applied the preponderance of evidence standard to evidence of non-retaliatory motive. Accordingly, the ARB remanded the case to the ALJ to determine whether Union Pacific can demonstrate, by clear and convincing evidence, that it would have discharged Powers in the absence of his protected activity.

For additional information regarding federal and state whistleblower laws, or for additional information about our employment and labor law services, please contact Stavros Law at (801) 758-7604 or visit our website, www.utahtriallawyers.net.

US Supreme Court Issues Important Decision Affirming Accommodation Rights for Pregnant Employees

In a decision written by Justice Breyer the United States Supreme Court in Young v. United Parcel Service, Inc. reaffirmed protections for pregnant workers under the Pregnancy Discrimination Act.  In its decision, the Court held that a pregnant worker may show disparate treatment by showing that she sought an accommodation, that the employer failed to accommodate her, but that the employer accommodated other non-pregnant employees who were "similar in their ability or inability to work." The Court further held that an employee can create a triable jury issue by providing evidence that the employer's policies prohibiting accommodation for pregnant workers impose a significant burden, and that the employer's reason for the policy are not sufficiently strong to justify the burden, but instead give rise to an inference of intentional discrimination.

Peggy Young, the appellant, worked for UPS as a delivery driver.  She requested a leave of absence in order to undergo fertilization treatment. She became pregnant and during her pregnancy she was placed on lifting restrictions by her physician (she was told not to lift more than 20 pounds).  UPS required employees holding Young's position to lift more than 20 pounds. Because Young could not satisfy the lifting requirement of her job, UPS forced Young to take an extended, non-paid leave of absence (she had used all of her FMLA leave). Young brought suit under Title VII, as amended by the Pregnancy Discrimination Act, and the Americans with Disabilities Act, alleging sex discrimination and disability discrimination.

The Pregnancy Discrimination Act amended Title VII to specify that Title VII’s “ter[m] ‘because of sex’ . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §2000e(k). It further provides that  “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work...." Id. (emphasis provided).

To support her claim, Young submitted evidence showing that UPS would accommodate workers injured on the job, workers suffering from disabilities as defined by the ADA, and those who had lost DOT certifications (to drive). She also submitted evidence that UPS had accommodated several individuals when they suffered disabilities that created work restrictions similar to hers. 

In analyzing the plain language of the PDA, the Court rejected the parties' proposed interpretation of the Act, instead creating a new prima facie standard for claims of pregnancy discrimination, and remanded the case back to the district court and vacated the Fourth Circuit's decision granting summary judgment in favor of UPS.  The Court announced the following standard:

"[A] plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing . . . that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'"The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, non- discriminatory” reasons for denying her accommodation. But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accom-modates.  If the employer offers an apparently “legitimate, non-discriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual."

The Court further held as follows: 

"We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate preg- nant employees give rise to an inference of intentional discrimination."

The Court's decision in Young resolves a split that had developed below and provides clarification to the EEOC's recent guidance on this issue.In July, 2014 the EEOC had issued guidance providing that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).” 2 EEOC Compliance Manual §626–I(A)(5), p. 626:0009 (July 2014). 

The Court's decision reaffirms a plaintiff's ability to prove disparate impact claims by circumstantial evidence, and provides clear guidance on the standard that an employee must meet to survive an employer's motion for summary judgment.  

For more information about this decision, please call Stavros Law at (801) 758-7604 or visit us online at utahtriallawyers.net. 

Proving or Defending Against Age Discrimination Claims in the Workplace

Employees and employers are often confronted with claims of age discrimination in the workplace. Most studies indicate that age discrimination is a real presence in today's workforce. This form of employment discrimination is illegal under a number of different circumstances and in different settings. Unfortunately, age discrimination can be uniquely difficult to prove. Thankfully, there are a number of ways in which you can aid your attorney in helping to back up your claim with solid evidence. If you hope to prove that you are being discriminated against because of your age at work, it is imperative that you let your attorney know if any of the following scenarios have occurred in regards to your situation.

1) statements made to you or directed at you that include age-based comments, or that can be inferred as being age-based;

2) evidence that you were treated differently than those younger than you with respect to the terms, conditions and privileges of employment;

3) evidence that you have been excluded from training, company social events and co-worker lunches due to your age;

4) evidence that you've been denied privileges granted to younger employees, including assignments. allocation of work and work projects, travel, etc.;

5) statements made to you or directed at you regarding your retirement or your longevity at work;

If any of the above factors are present, it would be wise to contact an age discrimination lawyer with experience in bring claims under the Age Discrimination in Employment Act of 1967 (ADEA), or similar state law provisions, such as the Utah Antidiscrimination Act of 1964. In addition, if you are being targeted because of the costs of benefits to you because of your age, or because of the additional premiums associated with your health care or related benefits, you should speak to a lawyer. In some cases, you may also have claims under Section 510 of ERISA.







Age discrimination may be difficult to prove, but it is certainly not impossible to do so. If you suspect that you are being discriminated against at work and may have proof of such treatment, please do not hesitate to speak with an experienced employment law attorney who can help you navigate your legal options.


Please call us at (801) 758-7604, or contact us online at www.utahtriallawyers.net to discuss your situation.

Utah Legislature Passes Landmark Anti-discrimination Bill Providing Protections For Sexual Orientation and Gender Identity

On March 12, 2015 the Utah Legislature passed a landmark discrimination bill extending protections in Utah's Antidiscrimination Act of 1965 to sexual orientation and gender identity.  The bill has been recognized across the United States as a progressive step toward balancing the competing interests of the LGBT community with religious expression.  

The bill amends the Utah Antidiscrimination Act of 1965 and Utah's Fair Housing Act to provide protections to the LGBT community.  While the bill sidestepped the issue of whether private business owners, based on truly held religious beliefs, may refuse services to to homosexuals, it provides clear protections for employees against discrimination on the basis of sexual orientation or gender identity.

The bill modified Utah Code Ann. Section 34A-5-106 to prohibit discrimination in the terms, privileges and conditions of employment, or the hiring, promotion, demotion or termination of an employee because of the employee's gender identity or sexual orientation. Sexual orientation is defined to mean "an individual's actual or perceived orientation as heterosexual, homosexual or bisexual.  Gender identity is tied to the DSM 5 and can be established through medical history, or other evidence that gender identity is "sincerely held", part of a person's core identity and not being asserted for an improper purpose.

The bill provides protections to employees who express religious or moral beliefs and commitments in the workplace in "a reasonable, non-disruptive, and non-harassing way" on "equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace." It further prohibits employers from taking adverse action against an employee for "lawful expression or expressive activity outside of the workplace regarding the person's religious, political or personal convictions" concerning marriage, family or sexuality, unless such expression directly conflicts with the essential business related interests of the employer. It further exempts religious leaders and religious organizations from these protections, as well as the Boy Scouts of America.

In addition, the bill provides the same protections under Utah's Fair Housing Act, Utah Code Ann Section 57-21-6, extending protections to discriminatory housing practices to include sexual orientation and gender identity.

For additional information concerning the new protections afforded to employees and residents on the basis of sexual orientation and gender identity, as well as the exceptions to such protections, and express protections for religious freedoms, please call (801) 758 7604, or contact us online at utahtriallawyers.net.

Utah Supreme Court issues Important Decision Holding Employers May Owe Duty of Reasonable Care to Third-Party in Hiring, Traning & Supervising Employees

In a recent decision written but Justice Lee (with a very well-reasoned dissent by Justice Nehring), the Utah Supreme Court in Graves v. North Eastern Services, Inc., 2015 UT 28, held that the “fault” to be apportioned under Utah Code Section 78B-5-818 (Utah's comparative negligence statute) is not limited to negligence but extends to intentional torts. Additionally, and perhaps more importantly for Utah employers, the Court held that employers may owe a duty of reasonable care to third-parties in hiring, training and supervising employees in certain circumstances. Lastly, the Court held that expert testimony on the standard of care was not needed with respect to questions of ordinary negligence. Where the standard implicates scientific matters beyond the capacity of an ordinary juror, however, expert testimony may be required, such as in medical malpractice cases.

In Graves, the parents of a minor girl who had been assaulted at one of the Defendant's client'' residences, filed suit against the assaulting employee and later added claims against his employer based upon its negligence in hiring, supervising and training the assaulting employee.  After discovery, the employer filed a motion for summary judgment claiming, among other things, that it owed no duty of care to the minor - a third-party guest in the home of the Defendant's clients - in its hiring, training, and supervision of employees. Soon after the filing of the  motion, the parents voluntary dismissed their claims against the assaulting employee. The Defendants then filed a notice asserting their intention to seek apportionment of comparative fault to the employee under Utah Code Section 78B-5-818. The District Court denied the motion for summary judgment on the negligence claims. It also approved dismissal of the assaulting employee as a defendant and ruled that apportionment as to his intentional conduct was improper under section 78B-5-818.  The Court's ruling was then appealed to the Supreme Court.

The Supreme Court affirmed in part and reversed in part the District Court's decision, holding 1) that  the “fault” to be apportioned under Utah Code Section 78B-5-818 is not limited to negligence but extends to intentional torts; and 2) that employers owe a duty of reasonable care in the hiring, training and supervising of employees.

The facts at issue on the summary judgment motion were fairly straightforward. One of the Defendants provided residential treatment services to mentally and physically disabled clients under a contract with the State of Utah, Department of Human Services. It provided services to its clients under a plan of care, which included, in some cases, interaction with children as part of the care plan. The services were provided in residential neighborhoods at various locations. At a duplex where services were being provided to clients, a minor girl was sexually assaulted by an employee.

The record indicated that the main door to the duplex was often left open during the summer, allowing children to come in or out as they pleased. One of the residents of the duplex was known for having candy on hand in his room. When neighborhood children asked about candy, the Defendant's staff would sometimes retrieve it for them from the client’s room. Alternatively, the client or the staff would sometimes invite the children into the duplex to find the candy. The record also indicated that the Defendant's staff had maintained a portable swimming pool outside the open door to the duplex. The principal purpose of the pool was for the benefit of a client, and neighborhood children often used it to play in during the summer. Neighborhood children also often entered the residence to watch television or videos with the residents and/or Defendant's staff.

The minor  was sexually abused by an employee. On that day the minor was playing in the common area outside of the duplex, asked for some candy, and was invited into the residence to watch television with the employee and one of the residents. The minor was then sexually assaulted by the employee in a bathroom of the residence.

At issue on Defendant's motion for summary judgment were the Defendant's actions in hiring and supervising the employee, and training staff. The evidence established that the employee who had assaulted the minor had been terminated from a recent job in the same field for sexually abusive conduct, The employer, in its interview, apparently never asked about  previous employment, and the interviewing employee indicating that she had never been trained to ask such questions. The evidence was disputed as to whether the employer had contacted the assaulting employee's former employer to obtain information regarding his prior employment. In addition, the assaulting employee's supervisor had received no training on how to keep children safe from assault or other harm.

In holding that the employer owed a duty of care to the minor, the Court emphasized the distinction between malfeasance and misfeasance, based on its precedent, and noted that "a key threshold question regarding duty is whether the plaintiff’s harm is alleged to have been caused by (a) an affirmative act of the defendant or (b) an act of a third party that the defendant failed to prevent.  In the former case, the duty of care is clear. However, "in the latter case the general rule is the contrary. A person generally has 'no duty to control the conduct of third persons.'"

However, the Court emphasized that a defendant may have a duty to control the conduct of third persons where a special relationship exists between the parties. Relying on Section 317 of the Restatement (2nd) of Torts, the Court found the basis for a duty of an employer to exercise reasonable care in preventing an employee from acting outside the scope of employment in “intentionally harming others.” The duty requires "proof (a) that the employee who intentionally harms another is on premises he is entitled to enter only by virtue of his status as an employee, and (b) that the employer knows or has reason to know that he has the ability to control the employee and knows or should know of the necessity and opportunity for exercising such control. In this cause, the Court found that "it was more than foreseeable" that Defendant's employees would come into contact with the public, and children, and thus the employer should have known of the necessity and opportunity for exercising control over the employee.

In a puzzling move that potentially allows negligent employers and others to escape meaningful liability, the Court held that fault under the comparative fault statute should be apportioned among intentional torts.  Finding that apportionment under the comparative negligence statute is not just for breaches of duty but for any act or omission that proximately causes or contributes to injury or damages, the Court read the text of the  statute to call for apportionment for torts like the sexual assault committed in this case.

The opinion includes a very forceful and well-written decent from Justice Nehring arguing that the Utah Legislature did not intend for the allocation of fault to include intentional torts. Central to his dissent are the policy implications of the Court's holding. Noting that "the concern that allowing allocation to intentional tortfeasors could have the consequence of rendering the duty of reasonable care by others unenforceable, making it unlikely that a jury would ever allocate a significant portion of fault to an unintentional actor.

Utah Supreme Court Clarifies "Good Cause" to Quit Standard for Receipt of Unemployment Benefits in Utah

In an opinion issued today the Utah Supreme Court settled the appropriate standard of review for an appellate court's review of a denial of unemployment benefits, holding that in a case of a worker quitting for good cause, the determination is a fact-like mixed question, and appellate courts should apply a deferential standard of review to a lower tribunal’s resolution of this issue, but must be vigilant to ensure that they are based on correct legal principles. Sawyer v. Dept. of Workforce Services, 2015 UT 33, ¶ 47. The Court further held, in a victory for employees, that the relevant inquiry in a good case quit case is whether a reasonably prudent person would be justified in quitting under the circumstances, and that quitting in order to avoid a discharge does not automatically bar an employee from receiving unemployment benefits. Id. at ¶ 30.

In Sawyer, the Dept. of Workforce Services denied Sawyer’s application for unemployment benefits based upon its finding that she quit her job without good cause.  Sawyer was a special education teacher for Jordan District who had received two bad performance evaluations. She was informed if she had another bad evaluation she would be terminated in accordance with the District's policy (or given the option to resign).  The record indicated that "Sawyer had little confidence that she could perform at a level that would allow her to pass a third evaluation" and that she was "concerned that if she were terminated that she would not find future employment as a teacher." Accordingly, Sawyer elected to resign rather than submit to a third evaluation.  Id.at ¶ 5. She subsequently filed for unemployment benefits.  Her benefits were denied on the basis that she had quit without good cause. On appeal the Department's ALJ affirmed the decision, and Sawyer appealed again to the Workforce Appeals Board. The Board held that “[q]uitting in order to avoid a discharge . . . does not establish good cause.”  Id. Ms. Sawyer appealed the Board's determination to the Utah Supreme Court. The Supreme Court reversed and remanded the case for further proceedings consistent with its opinion.

Under Utah law, an individual who is involuntarily terminated by their employer can apply for unemployment benefits and receive those benefits unless the employer proves the employee was terminated for "just cause." Just cause requires that the employer establish the employee had the requisite knowledge, culpability and control with respect to the issue that led to the employee's termination. In contrast, an individual is ineligible for unemployment benefits if he or she quits “without good cause.” U.C.A. § 35A-4-405(1)(a).  Under Utah Law, “[g]ood cause is established where the unemployment is caused by pressures so compelling that a reasonably prudent person would be justified in quitting under similar circumstances.” Hurst v. Indus. Comm’n, 723 P.2d 416, 419 (Utah 1986). At issue in Sawyer was whether quitting to avoid imminent discharge can ever be justified for purposes of establishing "good cause" for quitting.

Relying on the persuasiveness of a Supreme Court decision from Oregon, the Court held "that the administrative judge and appeals board erred by concluding that the possibility that Ms. Sawyer could have retained her job was sufficient to defeat her employment benefits claim. Good cause to quit is measured by the objective standard of whether “a reasonably prudent person would be justified in quitting under similar circumstances.” Sawyer, at¶ 30 (citing Hurst v. Indus. Comm’n, 723 P.2d 416, 419 (Utah 1986)).  The Court went on to explain:

This assessment should be based on the information that the worker knew or should have known at the time of the resignation . . .Reasonably prudent persons, of course, must often make decisions based upon an assessment of potential consequences rather than in the context of certain outcomes. Little in life is guaranteed. In evaluating whether a reasonably prudent employee would quit in order to avoid a potential termination, administrative law judges and courts should consider (1) the likelihood of termination, in spite of the employee’s reasonable efforts to remain employed, and (2) the degree to which termination will negatively affect future employment.




In other words, in some case, quitting to avoid a discharge may constitute good cause, and DWS and
Courts should look to the likelihood of termination and the degree to which termination will negatively affect future employment.  Because the administrative law judge and appeals board did not assess whether a reasonable person in Ms. Sawyer’s shoes would have quit, but rather whether there was some possibility that she could have retained her job, the Court concluded that an incorrect legal standard was applied to the facts of the case.

The situation in Sawyer is a situation often confronted by employees who see the writing on the wall, but are fearful that quitting will disqualify the employee from receiving unemployment benefits. The fact that an employee can realistically determine the "negative affect" a termination while have on future employment in determining whether to quit should alleviate this problem, and at least give an employee options where termination is imminent and the impact of termination will make finding another job very difficult.

The Department of Workforce Services has issued regulations that set forth the standard for proving good cause. To establish good cause under the regulations, an employee seeking unemployment benefits must show continuing the employment would have caused an adverse effect which the claimant could not control or prevent. R994-405-102. Further, the employee must show that  an immediate severance of the employment relationship was necessary. Moreover, even though there is evidence of an adverse effect on an employee, good cause does not exist where the employee reasonably could have continued to work while looking for other employment, or had alternatives that would have made it possible to preserve the job, or failed to provide the employer with notice of the hardship.

Sawyer makes clear that employees who are faced with termination need not hold out for the employer's decision to terminate in order to be eligible for the receipt of unemployment benefits.

For more information about the Court's decision in Sawyer, or Utah unemployment benefits, please contact Stavros Law P.C. at 801-758-7604 or visit stavroslaw.com.

Utah Supreme Court Clarifies Scope of Utah Payment of Wages Act by Holding LLC Managers are not Personally Liable for Unpaid Wages

In a much anticipated decision for Utah employers and employees, the Utah Supreme Court in Heaps v. Nuriche 2015 UT 26, held that the Utah Payment of Wages Act (UPWA) does not include LLC managers as "employers" who are liable for the non-payment of wages under the UPWA. As noted earlier, this ruling is contrary to the Labor Commission's long-standing interpretation of the scope of the UPWA, and its practice of holding officers liable for wage claim violations.

At issue in Heaps was whether the UPWA imposed personal liability on managers of a limited liability company for unpaid wages of employees.  The Plaintiffs, Ron Heaps and Phillip Sykes, along with other individuals, founded Nuriche, LLC, a limited liability company formed in Nevada which conducted business in Utah.  Heaps and Sykes brought suit alleging that the other founding members of Nuriche promised them compensation and other benefits in connection with their employment by Nuriche, but that Nuriche and the remaining managers refused to provide the promised compensation upon their termination of employment.

The District Court granted summary judgment for Nuriche on the Plaintiffs' claims under the UPWA, and the Plaintiffs appealed. On appeal, the Plaintiffs argued that the plain language of the UPWA imposes personal liability on LLC managers for unpaid wages. In contrast, Nuriche argued, among other things, that the UPWA did not hold LLC managers personally liable.

The UPWA provides that an “employer shall pay [unpaid] wages to [an] employee within 24 hours
of the time of separation.” U.C.A. § 34-28-5(1)(a). Under the UPWA, the term "employer"
includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this state, and any agent or officer of any of the above mentioned classes, employing any person in this state." Id. § 34-28-2(1)(c) (emphasis added). Plaintiffs argued that the LLC managers were agents and officers of Nuriche, who were thus employers under Section 34-28-2(1)(c). The Court, however, looked at the statutory language and found that "while the phrase 'agent or officer of any of the above-mentioned classes' encompasses a large group of individuals, that phrase is narrowed by the last clause of the definition." Id. at ¶14.  Further, "[t]he last clause—'employing any person in this
state'—modifies each of the terms in the preceding list. Thus, the statute limits the definition of employer to one who employs."  Id.  Because the Plaintiffs were employed directly by Nuriche, and not the LLC managers, the Court found the managers were not personally liable for unpaid wages.

The Court went on to explain that its holding was supported by principals of corporate law, including the limited liability of officers, shareholders and directors, and other situations where the Utah legislature has expressly imposed personal liability (in contrast with the UPWA). The Court emphasized that "[h]ad the Legislature intended to impose personal liability in contravention of long-standing principles of corporate law, it would have done so expressly as it has in other sections of the code." Id. at ¶16.

It further rejected the Plaintiffs' argument to restrict the liability of agents and officers to those who have the ability to remove employees from the payroll. In rejecting this argument, the Court held it was not supported by the language of the UPWA. And, to allow liability for all officers and employees would cause an absurd result the Legislature could not have intended.  Id. at ¶17-20.  Of course, as a practical matter, no officer or agent ever directly employs any employee, and the legislature's inclusion of the language "any agent or officer of any of the above-mentioned classes"  in Section 34-28-2(1)(c) is essentially rendered meaningless by the Court's reading of this Section. Nonetheless, the Court was clearly concerned with the scope of this language, and thus decided to read this Section out of the statute by use of the modifying clause.

Moving forward, while the decision was limited to LLC manages it is clear that any agents or officers who do not actually employ an employee are not subject to liability of the UPWA. However, there may be other grounds to hold such agents and officers liability, including for unjust enrichment, promissory estoppel and potentially negligent misrepresentation and fraud.

For additional information about the Court's decision, or the payment of wages to employees in Utah, please contact Stavros Law P.C. at 801-758-7604, or visit www.stavroslaw.com.

Utah Supreme Court Drops "Improper Purpose" as a Viable Method of Proving Intentional Interference with Prospective Economic Relations Claims

In a very important decision issued yesterday, the Utah Supreme Court in Eldridge v. Johndrow, 2015 UT 21, abandoned the "improper purpose" avenue of proving intentional interference with prospective economic relations claims.  

Despite recognizing that proof of interference for an improper purpose has been the law since the Court's decision more than 30 years ago in Leigh Furniture & Carpet Co.v. Isom, 657 P.2d 293, 307 (Utah 1982), the Court side-stepped its prior precedent, referenced the risks inherent in proving motive or purpose and the potential for causing juries to find liability too easily for "legitimate commercial activity" to justify its reversal.  The Court further noted that despite its attempt to circumscribe the doctrine by allowing improper-purpose liability only where “the improper purpose predominate[s]” and by counseling that it would usually be “prudent” not to apply the doctrine to “commercial conduct," such attempts had been largely futile. Accordingly, the Court reversed its prior precedent and held that "no tortious interference claim can succeed without evidence of improper means."  Eldridge, at ¶ 4. In doing so, it concluded "that the improper-purpose doctrine has not worked well in practice, and that "more good than harm will come by departing from precedent” and "should therefore be abandoned." Id. at  ¶ 64 (quoting State v. Menzies, 889 P.2d 393, 399 (Utah 1994)). 

In Pratt v. Prodata, Inc. 885 P.2d 786 (Utah 1994) the Utah Supreme Court held that improper means can be shown when the plaintiff proves that the defendant's means of interference were"contrary to statutory, regulatory, or common law or violated 'an established standard of a trade or profession." Id. at 788 (citations omitted).  Further in Leigh Furniture, the Court held that "[a] deliberate breach of contract, even where employed to secure economic advantage, is not, by itself, an 'improper means.'" 

While the exact contours of improper means have yet to be defined in Utah, its seems clear that some violations of statutory (e.g., anti-trust laws; unfair competition laws), regulatory (e.g., licensing regulations) and common law (e.g., defamation/slander) would be sufficient to show an improper means. It is not clear that all such violations would meet this requirement.  Recognizing this lack of development, the Court noted that in rejecting the improper purpose standard, it does not mean that 
"defendants’ motives and intent are entirely irrelevant to tortious interference  claims. Eldridge, at  ¶65. Instead, it suggested that a defendant's motives may be relevant in two ways. First, motives may shed light on intent.  Id. at ¶66. Second, motives may be relevant to showing improper means by, for example, reference to the underlying means employed. Id. at ¶66 However, "it will never be the defendant’s motivation by itself that leads to liability." Id. And, importantly, "a person who violates no legal duties, infringes no one’s rights, and commits no wrongful action can never be held liable for malice alone. Id. at ¶69.

If you have additional questions about the Court's decision, or this cause of action in Utah, please contact one of the lawyers at Stavros Law P.C., 801-758-7604, for additional information.