The Utah Business and Employment Lawyer

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 ...

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 t...

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 wi...

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 a...

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 ...

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 .

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 .

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 ...

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...

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...

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...

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 t...

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 ...

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'' re...

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 ...

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 th...

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 ...