The Utah Business and Employment Lawyer

An en banc panel of the Seventh Circuit Court of Appeals held that that Age Discrimination in Employment Act (ADEA) does not cover disparate impact claims asserted by job applicants. You can read the opinion here: Kleber v. CareFusion Corp. The facts in Kleber are straightforward. Kleber, an attorney, applied for a senior in house position with CareFusion in response to a job posting that required applicants to have "3 to 7 years" of relevant legal experience (but no more).  He was 58 when he applied and the job was ultimately given to a 29 year old applicant. Kleber filed a lawsuit under the ADEA asserting both disparate treatment claims and disparate impact claims under Sections 4(a)(1) and 4(a)(2) of the ADEA. The disparate impact claim was based upon the premise that the impact of the job limitation on experience was to exclude applications who were older, even if that decision was not the result of discriminatory bias or intent.   Section 4(a)(2) of the ADEA makes it...

In a decision that will certainly provide injured workers with a boost and allow more attorneys to represent injured workers, the Utah Supreme Court held that the Labor Commission's regulation of the amount of fees that can be paid to attorneys representing injured workers is unconstitutional under  the Utah Constitution's separation of powers clause.  You can access the decision here . In a decision written by Justice Durham, the Utah Supreme Court held that Utah Code section 34A-1-309 and the Labor Commission's interpretive regulations violation Article VIII, Section 4 and Article V, Section 1, of the Utah Constitution because the Utah Supreme Court has the exclusive power to regulate the practice of law. The Court found that regulating the amount of attorneys' fees paid to an attorney goes to the very heart of the practice of law and regulating the practice of law in the State of Utah rests with the judicial branch, not the legislative branch For employees who ha...

In a move that was surprising to many, the Utah legislature passed, and the Governor signed, H.B. 251, the "Post-Employment Restrictions Act" in March of 2016. You can review the new law here , which sets a one year-limit on employment non-compete agreements starting May 10, 2016. While the Act that ended up being passed was altered significantly from the original bill that was introduced, the Act prohibits employee non-compete agreements from being longer than one year following termination, and, significantly, requires a non-prevailing employer who seeks to enforce an agreement in violation of the Act to pay attorneys' fees and costs to an employee who successfully challenges the enforceability of the post-employment non-compete agreement. What Non-Compete Agreements are Subject to the Act? Utah Code Section 34-51-201 provides that "in addition to the requirements under the common law, for a post-employment restrictive covenant entered into on or after May 10...

The U.S. Supreme Court issued a decision earlier this week confirming that an employee can bring a First Amendment Retaliation claim where he suffers an adverse action based upon the employer's mistaken belief that he engaged in protected speech. You can read the decision, Heffernan v. City of Patterson, here . Heffernan involved a police officer who was demoted because of his employer's mistaken belief that he supported the mayor's rival in an election.  In a 6-2 decision, the U.S. Supreme Court reversed the lower court's decision holding that Heffernan's claim that his managers' mistaken belief he was supporting the mayor's rival and his demotion are sufficient basis to raise a First Amendment retaliation claim under Section 1983. The decision was authored by Justice Breyer, with only Justice Alito and Justice Thomas dissenting. The opinion is unquestionably a huge victory for public employees because it focuses on the employer's motivation for t...

In CDC Restoration & Construction, LC v. Tradesman Contractors, LLC   the Utah Court of Appeals affirmed a jury verdict of trade secret misappropriation and confirmed established Utah law that a trade secret misappropriation claim can be supported entirely by circumstantial evidence, even where there is no direct evidence that a party actually used the information. The Court had considered  CDC's claims in a prior decision, finding that its claims of breach of fiduciary duty were preempted by the Utah Uniform Trade Secret Act, and reversing the trial court's grant of summary judgment to Tradesman, in part, by allowing its claim under the UTSA to go to trial. The case went to trial, and CDC prevailed. The CDC case is an example of the perils associated with trying to be secretive about starting a competing entity while working for an employer. While CDC's breach of fiduciary duty claims never went to trial, it appears that the jury relied heavily on the a...

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 ...