The Utah Business and Employment Lawyer

Amid controversy, and with a pending United States Supreme Court decision lurking in the background - the Equal Employment Opportunity Commission (EEOC) issued updated guidance on discrimination, harassment and bias under the Pregnancy Discrimination Act. A fact sheet created by the EEOC for small businesses addressing the new guidancecan be accessed here .  Under the PDA, employers are required to treat women affected by pregnancy, childbirth and related medical conditions in the same manner as other employees (or applicants for employment) with respect to leave time, attendance issues and other work-related restrictions. Employers cannot discriminate against employees because of their pregnancy, pregnancy related medical conditions, childbirth or past pregnancy, or because of an employer's intention, desire or potential to become pregnant. Such prohibition also includes discrimination on the basis of lactation or breastfeeding. The PDA also prohibits harassment because of ...

In an article last week by USA Today, reporter Jessica Guynn details allegations relating to the purported sexism that is rampant in Silicon Valley's technology industry and the technology profession in general. It's a good read for employees and employers who operate in industries typically dominated by male employees, such as construction, firefighting, law enforcement, accounting/finance and politics. Employers who operate businesses in such industries need to be extremely vigilant with implementing and enforcing sexual harassment policies and procedures. In addition, employers need to pay close attention to hiring, pay and promotion practices to avoid claims of gender discrimination in compensation, promotion and hiring decisions. Employees who work in such industries who suspect that they are being treated differently on the basis of gender should seek competent legal counsel who can assist employees with analyzing their situations and exploring possible legal remedi...

Last week, in a divided decision issued by Judge Lucero, the Tenth Circuit Court of Appeals, in Kitchen v. Herbert, Case. No. 13-4178 , affirmed Judge Shelby's (U.S. District Court of Utah) decision holding that the Due Process Clause and Equal Protection Clause of the United States Constitution protect those who wish to marry a person of the same sex in the same way they protect those who wish to marry a person of the opposite sex, and declared that Utah's Amendment 3 to its constitution banning same-sex marriage did not withstanding strict scrutiny because the right to marry is a fundamental right protected by the Constitution.   In a 108 page opinion with included a lengthy dissent from Judge Kelly, the Tenth Circuit concluded that the State of Utah may not deny a citizen benefit of the right to marry based solely on the sex of the person the citizen chooses to marry. For more information about the decision, and what Utah plans to do in response to the decision, yo...

In a unanimous decision  issued by the United States Supreme Court and written by Justice Sotomayor, the U.S. Supreme Court re-emphasized the importance of protecting government employees free speech rights. The Court, in Lane v. Franks, reversed the Eleventh Circuit's decision upholding summary judgment against Mr. Lane and held that Lane's sworn testimony outside the scope of his ordinary job duties was entitled to First Amendment protection because it consisted of speech as a citizen of public concern and the government had no legitimate interest in treating Lane differently because of his speech, in accordance with the Court's decision in Pickering v. Board of Ed. of Township High School Dist.,  391 U. S. 563.  Under Pickering, if speech is made in fulfilling an employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes. But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to whethe...

Today Forbes ran an article entitled " Proliferating State & Local Pregnancy Laws Make Modifying ADA/FMLA Procedures a Must for Most Employers "  which discusses the increasing trend among states and municipalities to enact pregnancy accommodation requirements with greater obligations for employers to accommodate employees who are pregnant than existing federal laws such as the Family & Medical Leave Act of 1993 and the Americans with Disabilities Act of 1990, as amended by the ADAAA of 2008. While Utah has not enacted specific protections for pregnancy related accommodations beyond those found in the ADA, FMLA and Utah Antidiscrimination Act,  there is an increasing amount of litigation in Utah and across the United States involving pregnancy-related claims and caregiver discrimination (i.e., family responsibilities discrimination) and related claims. These cases include cases alleging discrimination, retaliation and/or harassment for being a caregiver to childr...

A few days ago I ran across an article in the New York Times, "Noncompete Clauses Increasingly Pop Up In Array of Jobs" , which talked about the proliferation of non-compete agreements in Massachusetts and the government's attempt to respond to this proliferation by proposing legislation that restricted the use of non-compete agreements. The article compares the experience of California's technology sector which has thrived despite California's general ban on the use of non-compete agreements in employment relationships, to what has happened in Massachusetts, which has largely enforced such agreements. It's a good read for both employers and employees about the impact and benefit (or lack thereof) of non-compete agreements. I often discuss with my clients (both employers and employees) my general disdain for overreaching non-compete agreements intended solely to stifle competition or to prohibit employees from working. And, as with Massachusetts, we'v...

Protecting Your Utah Proprietary Information In today’s competitive economic climate, protecting confidential, proprietary and/or trade secret information  is an essential part of successful business protocol. Proprietary information can be the lifeblood a business, but disclosure, misuse, theft or misappropriation of such information can ruin a thriving business. Because of this, it is important for business owners to properly identify such information and keep it out of the wrong hands. However, it is just as important not to treat all aspects of your business as proprietary. For example, information that can be obtained easily through “public sources,” through a “basic research task,” or through a “simple internet search” is not proprietary. See e.g., CDC Restoration & Constr., LC v. Tradesmen Contrs., LLC , 274 P.3d 317, 326 (Utah Ct. App. 2012). Such publicly available information is not entitled to trade secret protection and efforts to protect such informati...

Following an on-the-job injury, many employees worry that reporting their injury and any subsequent workers’ compensation claim may affect their job security. Employers also must be cautious when making employment decisions after an employee suffers a workplace injury. In some cases, if a decision to fire a worker occurs after a workers’ compensation claim it could provide the basis for a wrongful termination claim. When can an employer fire a worker who has filed for workers’ compensation?  This can be a complicated question and a qualified employment law attorney, like the attorneys at Stavros Law P.C., can provide counsel based on the facts of an individual matter.  This article will address some of the initial considerations in bring or defending against such claims. Workers’ compensation is generally the only remedy for an employee injured at a Utah workplace (at least for non-intentional injuries). The safety net means the employer’s workers...