The Utah Business and Employment Lawyer

Under Utah law, unemployment benefits are generally available to individuals who are unemployed through no fault of their own. However, if an employee has been discharged from her job, or if the employee leaves voluntarily for good cause, that does not mean the employee is ineligible for unemployment benefits. Employers often assume simply because they had reason to terminate an employee that benefits will be denied. And many employees wrongly assume they are not eligible for unemployment benefits if they left their job or if they were terminated.  If an employee is terminated by an employer, the employer has the burden of showing the termination was for just cause. This involves establishing three elements: culpability, knowledge and control. Establishing culpability involves looking at the seriousness of an employee's conduct and how harmful the conduct was to the employer. Establishing knowledge involves looking at whether the employee has knowledge of the expected conduct or s...

  We often review employee handbooks that contain head-scratching provisions while reviewing handbooks for updates, during the course of litigation, or in the context of advising employees on their rights and obligations. Over the past twenty-five years litigating employment cases, we've seen virtually every type of handbook provision that you could imagine. During that time, we've noticed a number of common areas where employers make mistakes that can often lead to heavy liability. Here are a few examples. 1. Including Restrictive Covenants in Employee Handbooks. We have seen numerous employees attempt to include various restrictive covenants in handbooks, including noncompete clauses, non-solicitation clauses and non-circumvention clauses. Avoid this at all costs. First, most of these provisions are unenforceable because other sections of the handbook expressly disclaim that the handbook creates and independent contractual agreement between the employer and employee. Second,...

Many employers using severance agreements to limit litigation risk and to assist employees with a transition to another position. When you are terminated - whether involuntarily, as part of a reduction-in-force or organizational restructuring - and presented with a severance agreement to review and sign, it's important to consider your legal options promptly. While negotiating a severance agreement can feel like a daunting task, especially when you're already dealing with the emotions and stresses of a job loss or a layoff, there are certain key steps that all employees should follow, which includes seeking representation from a skilled lawyer who is familiar with employment laws. In simple terms, a severance agreement is a legal document that outlines the terms and conditions of your departure as an employee from a company. It typically includes severance pay and other terms in exchange for your agreement to waive and release your employer from any and all claims. Often, thes...

The Federal Trade Commission (FTC) announced that it will extend the comment period through April 19, 2023 for its proposed rule banning non-compete agreements for employees and independent contractors. (See FTC Announcement ). On January 5, 2023 the FTC issues a proposed rule that prohibits employers from using non-compete clauses with employees and independent contractors. If adopted, the FTC rule would require employers to rescind any such clauses contained in agreements with their employees and independent contractors, and provide notice that such clauses are no longer in effect. It would also prohibit such clauses moving forward. The proposed rule can be accessed here (See FTC Proposed Rule ). The rule is expressly limited to restrictive covenants that prohibit employee mobility - accepting jobs with competitors. But the proposed rule would also reach non-solicitation and non-disclosure provisions to the extent such provisions are functionally equivalent to a non-compete clause. I...

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 ...