2018 Utah Workplace Legislative Update

Transcription

1 2018 Utah Workplace Legislative Update Shawn Kee Jackson Lewis P.C. Salt Lake City Jackson Lewis P.C.

2 Agenda Statistical Trends 2018 Legislative Session Utah Case Law Update Where are We Going 2

3 3 STATISTICAL TRENDS

4 National Trends Total Workplace Lawsits EEOC Charges Discrimination Lawsits 4

5 EEOC Charges

6 National Trends by Category Discrimination FLSA Labor ERISA FMLA 6

7 Utah Discrimination Charges UALD EEOC 7

8 Utah Workplace Lawsits Total Discrim FLSA Labor ERISA 8

9 Title III - ADA All US

10 Title III - ADA Utah

11 UTAH 2018 LEGISLATIVE SESSION 11

12 Utah Legislatre Sits for 45 days Passed 533 bills (2 less than last year) 3 vetoes. One of those was becase the bill sponsor asked the governor to veto it de to the inadvertent omission of langage in the final version of the bill. 12

13 Antidiscrimination Act Amendments Amends the Act to assign a mediator prior to an investigation and allows mediators and investigators to attempt settlement prior to finding a violation. (This is already how the UALD actally works). Grants the UALD power dring its investigation to sbpoena a person to cooperate and participate in an interview or to prodce records. 13

14 Workers Compensation Claim Amendments Makes it nlawfl to interfere with an employee s ability to seek workers compensation benefits, inclding throgh intimidation or harassment Also prohibits retaliation against an employee for seeking workers compensation benefits. Provides that the Utah Labor Commission may impose a fine of p to $5,000 for each violation. However, the bill states that it does not affect the rights or obligations of an employee or employer nder common law. Ths, an employee may still bring a wrongfl termination claim nder Utah law for workers compensation retaliation. 14

15 Payment of Wages Act Amendment 2017 Amendments to the Utah Payment of Wages Act changed the definition of employer to match the FLSA. Practical impact of that part of the 2017 bill is that it provided for individal liability Amendment states that an Employer mst be: 1) an officer; 2) a manager of a manager-managed limited liability company; 3) a member of a member-managed limited liability company; 4) a general partner of a limited partnership; or 5) a partner of a partnership. Non-officers (HR managers, directors, lower-level managers) have been exclded from liability for wage violations. 15

16 Post Employment Restrictive Covenants Act In 2016, Utah legislatre passed a bill that restricted noncompetes to one year. Bill proposed in this session wold have prohibited noncompetes for all members of the media. Media exectives lobbied hard against the bill. As passed, the bill is very narrow. It states that a non-compete with a broadcasting employee is valid only if: 1) the broadcasting employee is exempt (meaning earns $47,500 per year or more); 2) the non-compete is part of a written contract of for years or less; and 3) the company terminates the employee for case or becase the employee breached the employment contract. Governor signed this bill bt stated that he wold veto any frther non-compete legislation, calling sch efforts nnecessary. 16

17 17 CASE LAW UPDATE

18 DeWitt v. Sothwestern Bell Tel. Co. 10 th Circit Diabetic call center employee was terminated for violating company policy by hanging p on two cstomers in one day. Tenth Circit affirmed becase the employer s representatives honestly believed its reasons and acted in good faith on those beliefs. Spervisor relied on mltiple factors in making the decision that hang ps had been on prpose and not becase of disability Difficlt to hang p on cstomer Employee had worked rest of the day withot incident Employee had not taken break after hang ps. No witnesses of disorientation Previosly issed last chance stats had placed job in jeopardy and cold have motivated dishonesty. 18

19 Tabra v. Kellogg USA 10 th Circit Seventh Day Adventist employees did not want to work on the Sabbath (sndown Friday throgh sndown Satrday). Religios practice conflicted with job schedles at food prodction plant. Eventally, Kellogg terminated the employees. Tenth Circit reversed grant of smmary jdgment for defendant. Cort fond that it was a qestion of fact as to whether the proposed accommodations were reasonable. Employees cold not have avoided working some schedled Satrdays even if they had sed all vacation and PTO. Shift swaps were permitted, bt evidence that it was very difficlt to make swaps. Also evidence Kellogg was not helpfl in facilitating swaps. 19

20 Peterson v. Avalon Care Ctr. Dist. of Utah Employee broght claim for hostile work environment and retaliation based pon several incidents of alleged harassment. Director of Employee Relations visited worksite and met with employee abot several concerns, inclding spervisor s condct. Director took detailed notes of meeting. Director explained what constitted harassment and asked whether employee believed she had been harassed. Employee said that she did not believe she had been harassed and cold contine working with spervisor. Cort granted motion for smmary jdgment in part becase Director was able to determine that the employee did not sbjectively perceive the environment to be absive. 20

21 James v. West Valley City Dist. of Utah Employee made two FMLA leave reqests and was terminated shortly after the second reqest. She broght a claim for FMLA retaliation and interference. Of corse, employee also sffered from performance isses. HR involvement HR Director was aware of performance isses months before termination HR employee sent ot FMLA paperwork for first reqest, then followed p with a denial letter when employee did not complete paperwork. Spervisor asked to terminate and HR told him to hold off becase of FMLA leave reqest. Finally, HR agreed to termination after frther performance isses. Cort granted smmary jdgment becase there was no reason to connect the employee s leave reqests to her termination. 21

22 WHERE ARE WE GOING ON UTAH WORKPLACE LAW ISSUES 22

23 Utah Anti-Discrimination and Labor Division Critical media 2017 Performance Adit Legislative focs 23

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25 Five Lessons for 2018 and Beyond #metoo Increasingly knowledgeable employees on accommodation and leave From diversity to inclsion What abot those Californians Updated policies and agreements 25

26 Thank Yo With 800 attorneys practicing in major locations throghot the U.S. and Perto Rico, Jackson Lewis provides the resorces to address every aspect of the employer/employee relationship. jacksonlewis.com 26