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...