This is Utah SHRM Legal-blog no. 2011-8 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

RETURN OF NO MATCH:  There are a couple of new developments of note in the field of immigration law.  The Social Security Administration (SSA) has announced that it will resume the practice of sending “no match” letters to employers.  “No match” letters advise employers that the information on an employee’s W-2 or W-2c form does not match the records of the SSA.  You cannot assume this means you have hired an undocumented worker because often such letters result from typos or incomplete reports of names.  However, you cannot assume there is no problem either because sometimes these letters can indicate that the person involved is misusing someone else’s identifying information.  Employers should allow employees time to resolve any problems with the SSA but if they cannot be resolved, termination may be appropriate.  Consult legal counsel in try to minimize and manage legal risk in such situations.

NEW I-9 RULES:  In another immigration law development, the US Citizenship and Immigration Services office (USCIS) has published its final rules attempting to improve the I-9 process.  The new regulations take effect on May 16, 2011.  The new rules require that employers accept only unexpired documents and otherwise revise the list of acceptable documents.  You can read the new rules at http://edocket.access.gpo.gov/2011/2011-9152.htm.  Note also that although I-9 rules do not require that you keep copies of employee documents presented during the I-9 process (even though this is a good idea), USCIS requires that you keep copies of a permanent resident card, employment authorization document or passport used as part of the photo matching E-Verify process.  For more details, please see: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bbcbfb41c8596210VgnVCM100000b92ca60aRCRD&vgnextchannel=bbcbfb41c8596210VgnVCM100000b92ca60aRCRD

CLASS ACTION WAIVERS OK IN CALIFORNIA: The United States Supreme Court recently ruled that class action waivers are valid in California.  The California courts had declined to enforce such waivers, in which consumers or employers agree to arbitrate their disputes and waive their right to participate in a class action lawsuit.  The Supreme Court held that California state law did not govern the issue in that case, but rather the question of enforceability must be decided under the Federal Arbitration Act which preempts state laws.

ANNUAL SUMMER INTERN REMINDER:  As the temperatures climb, it is time once again to think of such things as warm weather vacations, baseball and the risk of employing unpaid summer interns.  Here is a link to the fact sheet from the United States Department of Labor (DOL) on how to manage this issue: http://www.dol.gov/whd/regs/compliance/whdfs71.pdf In a nutshell, interns will be considered employees who must be paid unless: (1) The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; (2) The internship experience is for the benefit of the intern; (3) The intern does not displace regular employees, but works under close supervision of existing staff; (4) The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded; (5) The intern is not necessarily entitled to a job at the conclusion of the internship; and  (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

ROCKY MOUNTAIN HIGH?  The Montana Supreme Court has enforced a workers’ compensation award for an injured employee despite evidence of his use of marijuana.  The employee worked for a bear park and was injured while feeding the bears.  There was evidence that he was a regular user of marijuana and had smoked it on his way to work the day of his injury.  However, there also was evidence that he had smoked with the owner of the park.  So before you start to growl about what sounds like an unbearable ruling, read the court’s logical explanation for its ruling.  The court noted that “use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.”  However, the court also explained that grizzlies are “equal opportunity maulers” without regarding to use of marijuana and thus the drug use was not a major contributing cause to the injury.  Wow…now that’s a ruling with some teeth in it!

Written by: Employment Attorney, Michael Patrick O’Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

WATCH OUT FOR “CAT’S PAW” IN JOB DECISIONS: The Supreme Court also ruled that employers can possibly be liable in what are called “cat’s paw” cases.  A “cat’s paw” case involves one where an allegedly-biased person does not make the employment decision at issue, but somehow influences or manipulates it.  Another legal update explained it this way: “The ‘cat’s paw’ principle derives its name from a fable in which a monkey convinces a gullible cat to pull chestnuts from a hot fire. The cat snatches the chestnuts from the fire, each time singeing his paw, only to have the monkey eat all the chestnuts. Today, the term ‘cat’s paw’ is generally used to describe a person who is unwittingly manipulated by another to accomplish his purposes.” The underlying case involved a claim for alleged anti-military bias under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The Court held that in such cases if a supervisor commits an act based on bias and that act causes injury to the employee, the employee can sue based on the injury.  The clear implication for employers is that they will need to ensure that their decisions are not (and do not appear to be) manipulated by persons who have indicated they have an illegal bias.  Again, as explained by another legal commentator, employers must avoid the “situation in which a biased lower level supervisor, who lacks decision-making power, uses the formal decision maker in a deliberate scheme to trigger a discriminatory employment action.”

COURT ALLOWS HARASSMENT CLAIM BY NONEMPLOYEE:  The Tenth Circuit Court of Appeals (which governs Utah and other Western states) recently reversed a trial court’s decision to dismiss a claim of employment harassment where the conduct at issue originated not from an employee, but a nonemployee.  The case involved a plaintiff who worked for a nursing home.  She filed a lawsuit against her employer claiming she was constantly subjected to groping and verbal sexual abuse from one particular resident.  The employer responded by confronting the resident and requiring that two staff members be present at all times when dealing with him.  However, the abuse continued and culminated in a confrontation in which the employee called the resident a name.  The employer then fired the employee and the trial court dismissed the harassment and retaliation claims that followed.  The Tenth Circuit reversed, however, finding that there was enough evidence to allow a jury to decide if the employer knew enough about the resident’s misbehavior and whether it responded sufficiently to stop it.  This case is a timely reminder that nonemployees such as customers, clients, vendors can all be sources of harassment against employees.  An employer’s policy must consider and deal with such possible claims to minimize its legal risk.

TIPS ON TIPS: New FLSA regulations should help educate employers as to the proper use of the tip credit, a legal device that allows certain tipped employees to be paid less than the minimum wage. You can read a good summary of the same here: http://www.shrm.org/LegalIssues/FederalResources/Pages/FinalFLSARuleTipCreditNotice.aspx  Some of the highlights of the new regulation include that an employee must be given at least verbal notice of an employer’s intent to use the tip credit and that the maximum new federal tip credit is $5.12 per hour, which is the minimum wage ($7.25) minus the required minimum cash wage ($2.13).

ADAAA AND THE NINE RULES OF CONSTRUCTION:  In the last update, using the EEOC’s own words, I summarized the significant points of the new EEOC regulations.  One of the most important aspects of the new regulations is that they adopt nine express “rules of construction” for courts to use when interpreting claims under the ADAAA.  It may be helpful for employers to know these specific new rules now too, so here they are: (1) “substantially limits” should be construed broadly in favor of concluding that someone has a disability and thus is covered by the ADAAA, i.e. it is not meant to be a demanding standard; (2) whereas an impairment need not prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be considered “substantially limiting,” not every impairment will constitute a disability; (3) the courts are not to get bogged down in whether an impairment is substantially limiting; (4) “substantially limits” should now be interpreted and applied using an individualized assessment that is broader than the standard applied prior to the ADAAA; (5) an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population, a comparison that usually will not require scientific, medical or statistical analysis; (6) except with eyeglasses or contact lenses, the determination of whether a disability exists is to be made without regard to the effects of mitigating measures; (7) an impairment that is episodic, in remission, or could recur is a disability if it would substantially limit a major life activity when active; (8) an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment; and (9) an impairment lasting or expected to last fewer than six months can be substantially limiting, but short-term illnesses lasting only a few days or weeks are likely not substantially limiting.  Here are links to a couple of good discussions about these nine rules: http://dmeclegal.wordpress.com/2011/04/06/rules-of-construction-under-the-adaaa-final-regulations/ and http://www.mcguirewoods.com/news-resources/item.asp?item=5706

This is Utah SHRM Legal-mail no. 2011-7 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  NEW ADAAA REGULATIONS ISSUED

- MORE PEOPLE WILL BE COVERED BY THE LAW

- HOW DO YOU DETERMINE SOMEONE HAS A DISABILITY?

- WHAT DOES ‘REGARDED AS’ DISABLED MEAN NOW?

- THE REGULATIONS REDEFINE MAJOR LIFE ACTIVITIES

- ARE THERE SPECIFIC IMPAIRMENTS WHICH ARE LIKELY DISABILITIES?

- DO THE NEW CHANGES INCLUDE ADA CONCEPTS SUCH AS QUALIFIED,

DIRECT THREAT, REASONABLE ACCOMMODATION AND UNDUE HARDSHIP?

NEW ADAAA REGULATIONS ISSUED: The Equal Employment Opportunity Commission (EEOC) now has issued its final regulations interpreting the Americans With Disabilities Act Amendments Act (ADAAA).  The full regulations are available at: http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as The  EEOC also has issued a fact sheet and sets of questions and answers to help employers understand the new regulations.  These resource materials are available at: http://www.eeoc.gov/laws/statutes/adaaa_info.cfm Based on these various resource materials, here below- and in the EEOC’s own words- are some of the key concepts of the new regulations.  A few editorial comments are included.

MORE PEOPLE WILL BE COVERED BY THE LAW: “In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute…The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.”  This means when in doubt, and unless you are absolutely certain otherwise, assume someone is covered.

HOW DO YOU DETERMINE SOMEONE HAS A DISABILITY? “[T]he regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. But the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.”

“The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting ‘rules of construction’ to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction are derived directly from the statute and legislative history and include the following: (1) The term ‘substantially limits’ requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered ‘substantially limiting.’ Nonetheless, not every impairment will constitute a disability; (2) The term ‘substantially limits’ is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA; (3) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA; (4) With one exception (‘ordinary eyeglasses or contact lenses’), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids; (5) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; (6) In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.”  As noted above, this means when in doubt, and unless you are absolutely certain otherwise, assume someone is covered.

WHAT DOES ‘REGARDED AS’ DISABLED MEAN NOW? “Under the ADAAA and the final regulations, a covered entity ‘regards’ an individual as having a disability if it takes an action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment the covered entity believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. This new formulation of ‘regarded as’ having a disability is different from the original ADA formulation, which required an individual seeking coverage under this part of the definition to show that a covered entity believed the individual’s impairment (or perceived impairment) substantially limited performance of a major life activity.”

“As required by the ADAAA, the regulations also make it easier for individuals to establish coverage under the ‘regarded as’ part of the definition of ‘disability’…Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person’s impairment. The regulations clarify, however, that an individual must be covered under the first prong (‘actual disability’) or second prong (‘record of disability’) in order to qualify for a reasonable accommodation.”  In other words, you cannot discriminate against someone you perceive is disabled (e.g. decline to put them in a job because you perceive they cannot do it based on their health) but you do not have to accommodate someone who is not actually disabled.

THE REGULATIONS REDEFINE MAJOR LIFE ACTIVITIES: “The final regulations provide a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working… The final regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions… [M]ajor bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas). As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.”   Again, the ADAAA expands the range of those covered by the law.

ARE THERE SPECIFIC IMPAIRMENTS WHICH ARE LIKELY DISABILITIES? “Yes. The regulations identify examples of specific impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.”  In these situations, and indeed in most situations where the claim for disability is even arguable, employers will want to just move on and focus on the issue of how to reasonably accommodate that person.

DO THE NEW CHANGES INCLUDE ADA CONCEPTS SUCH AS QUALIFIED, DIRECT THREAT, REASONABLE ACCOMMODATION AND UNDUE HARDSHIP? “No. Nearly all of the ADAAA’s changes only affect the definition of ‘disability.’ None of the key ADA terms listed in this Question, or the burdens of proof applicable to each one, have changed. The only provision in the ADAAA affecting the reasonable accommodation obligation is that a covered entity does not have to provide one to an individual who only meets the ‘regarded as’ definition of disability.”  Well, at least we got that going for us!

• UTAH LEGISLATIVE UPDATE
• SHRM OPPOSES NEW EMPLOYER POSTING REQUIREMENT
• SUPREME COURT ALLOWS FOR THIRD PARTY RETALIATION CLAIMS
• FACEBOOK CLAIM SETTLED

UTAH LEGISLATIVE UPDATE: Here is the latest status report on employment law issues from the 2011 Utah State Legislature (in session until March 10, 2011):

(1) Worker Misclassification: The Legislature has passed two bills making it more difficult to classify workers as independent contractors.  SB 35 sponsored by Sen. Karen Mayne (found at http://le.utah.gov/~2011/bills/sbillamd/sb0035s02.htm), applies to any unincorporated entity that must be licensed under the Utah Construction Trades Licensing Act.  The bill creates a presumption that anyone working for such a company is an employee and not an owner.  This presumption can be rebutted if the company proves that the work of the person is not supervised and that the person owns at least 8 percent of the company.  Persons working for the company and owning less would be considered employees and the company would have to pay taxes, unemployment insurance, etc. them.  Sen. Mayne also sponsored Senate bill 11

(http://le.utah.gov/~2011/bills/sbillamd/sb0011s01.htm), which sets up a new task force for various state agencies to discuss and coordinate their efforts to enforce rules against the misclassification of workers as independent contractors. These bills have been sent to Governor Gary Herbert for his approval.

(2) Immigration: The Legislature is trying to address illegal immigration.  The House has passed HB 253 (found at: http://le.utah.gov/~2011/bills/hbillamd/hb0253s01.htm), which targets employers that knowingly hire undocumented workers, suspending their business licenses for three days on a first offense and for a year on a second violation. The House also has passed HB 116, creating a guest worker program for undocumented workers ( http://le.utah.gov/~2011/bills/hbillamd/hb0116s02.htm ).  However, it looks like both of those House bills may be rolled into what is called an “omnibus” Senate bill (SB 288: http://le.utah.gov/~2011/bills/sbillint/sb0288.htm ).  The omnibus bill will try to address all immigration issues comprehensively. The Senate bill prohibits an employer from knowingly employing an unauthorized alien who does not hold a guest permit or replacing a worker with an undocumented worker without a permit.  It also requires, a private employer employing 15 or more employees to verify the employment eligibility of new employees through the E-verify program or, if holding a guest worker permit, through a new Utah verification system called U-Verify. The bill also requires a private employer to keep a record of the verification for the longer of the duration of the employee’s employment or at least three years from the date of verification. The bill also requires a private employer to terminate the employment of an undocumented individual if the undocumented individual is determined to not hold a valid guest worker permit. The House also has passed an enforcement only bill.

(3) Other Bills: The Legislature probably will not approve four other proposed new employment laws.  One bill prohibits discrimination based on sexual orientation (SB 148: http://le.utah.gov/~2011/bills/sbillint/sb0148.htm ).  Another bill requires domestic violence leave for employees (SB 40: http://le.utah.gov/~2011/bills/sbillint/sb0040.htm). The third bill (HB 292 found at: http://le.utah.gov/~2011/bills/hbillint/hb0292.htm ), requires a public employer, or an employer receiving public funds, to adopt a policy against bullying.  Finally, HB 417 ( http://le.utah.gov/~2011/bills/hbillint/hb0417.htm), would prohibit the enforcement of noncompete agreements for employees separated from employment in connection with a reduction in force.

SHRM OPPOSES NEW EMPLOYER POSTING REQUIREMENT: National SHRM has expressed opposition to a National Labor Relations Board (NLRB) proposal requiring most employers to post a notice in their workplaces telling employees about their rights under the National Labor Relations Act (NLRA).  Among other things, the NLRA gives employees the right to act in concert to seek to improve working conditions, form a union, seek help from a union and engaged in various union activities once a union is formed and/or recognized.  The rule would apply to all employers covered by the NLRA, which basically means all private employers.  The NLRA does not cover the following: agricultural laborers; persons employed in the domestic service of any person or family in a home; persons employed by a parent or spouse; independent contractors; supervisors; employers subject to the Railway Labor Act, such as railroads and airlines; federal, state, or local government employees; or any other person who is not an employer as defined in the NLRA.  Failure to post the required notice would be considered an unfair labor practice subject to sanctions.  The NLRB now will decide whether to finalize the posting requirement.  You can read a copy of the proposed new rule here:  http://www.nlrb.gov/About_Us/news_room/Notice_for_Rulemaking/2010-32019_PI.pdf You can read about SHRM’s opposition to it here: http://www.shrm.org/LegalIssues/FederalResources/Pages/ProposedNLRANotice.aspx

SUPREME COURT ALLOWS FOR THIRD PARTY RETALIATION CLAIMS: The United States Supreme Court recently issued a decision allowing retaliation claims by third parties who have not engaged in protected activity themselves.  The male plaintiff in the case was the fiancé (and co-worker) of a woman who had claimed sex discrimination against their common employer.  He was fired three weeks after she made her claim and he contended that his termination was in retaliation for her claim.  The Supreme Court concluded the fiance’s claim was appropriate because his termination could have the effect of materially discouraging the involved woman from filing her claim.  Thus, the male employee was allowed to bring suit even though he never engaged in the protected activity required for a retaliation claim to go forward.

FACEBOOK CLAIM SETTLED: You may recall from a few updates ago the intriguing story of the employer who fired an employee for her postings on Facebook.  The federal National Labor Relations Board (NLRB) made national news headlines for asserting that the employer may have violated the National Labor Relations Act (NLRA) by firing the employee for making negative comments about her supervisor on Facebook.  The NLRA protects the right of employees, even in non-union settings, to engage in “concerted activities” such as talking to co-workers about their jobs, managers and working conditions.  Thus, the NLRB issued a complaint when a Hartford, Connecticut ambulance company fired an employee when she complained about her supervisor on Facebook and several friends/co-workers responded with similar comments.  The company’s social media policy prohibited employees from depicting the company “in any way” on the internet.  The employer recently settled the case and agreed to modify its social media policies.  As noted before, the incident may signal an era of heightened scrutiny by the NLRB of employer policies that might seem to chill employee communications with each other about working conditions.   Some tips here: (1) get legal advice before you fire someone because he or she has posted comments online or communicated with co-workers about working conditions; (2) update your social media policies; and (3) share this information on Facebook!

This is Utah SHRM Legal-mail no. 2011-4 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  UTAH LEGISLATIVE UPDATE

-  LIMITS ON CONSTRUCTION WORKERS AS OWNERS

-  WORKER MISCLASSIFICATION TASK FORCE

-  MANDATORY POLICY AGAINST BULLYING

-  EMPLOYERS AND UNDOCUMENTED WORKERS

-  SEXUAL ORIENTATION DISCRIMINATION

-  DOMESTIC VIOLENCE LEAVE

UTAH LEGISLATIVE UPDATE: The 2011 edition of the Utah State Legislature opened on Monday, January 24, 2011 and runs through March 10, 2011. Here is what the legislators have done so far, and what they are considering doing, on some issues relevant to Utah employers.

LIMITS ON CONSTRUCTION WORKERS AS OWNERS: Both the House of Representatives and Senate have passed a bill that would make it more difficult for a construction company to classify workers as owners.  Second Substitute SB 35 (http://le.utah.gov/~2011/bills/sbillamd/sb0035s02.htm), sponsored by Sen. Karen Mayne of West Valley, applies to any unincorporated entity that must be licensed under the Utah Construction Trades Licensing Act.  The bill creates a presumption that anyone doing work for such a company is an employee and not an owner.  This presumption can be rebutted if the company proves that the work of the person is not supervised and that the person owns at least 8 percent of the company.  However, persons working for the company and owning less would be considered employees and the company would have to pay taxes, unemployment insurance and workers’ compensation for them.  The bill now must be approved by Governor Gary Herbert.

WORKER MISCLASSIFICATION TASK FORCE: Speaking of alleged worker misclassification, both legislative houses also have passed Substitute SB 11(http://le.utah.gov/~2011/bills/sbillamd/sb0011s01.htm), also sponsored by Sen. Karen Mayne.  This bill sets up a new task force for various state agencies to discuss and coordinate their efforts to enforce rules against the classification of workers as owners or as independent contractors. The bill also has been sent to Governor Gary Herbert for his approval.

MANDATORY POLICY AGAINST BULLYING: HB 292 (found at:  http://le.utah.gov/~2011/bills/hbillint/hb0292.htm ) requires an employer to adopt a policy against bullying.  The bill defines “abusive conduct” in the workplace as including: “(i) repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets;(ii) verbal or physical conduct of a threatening, intimidating, or humiliating nature; (iii) the sabotage or undermining of an employee’s work performance; or (iv) an attempt to exploit an employee’s known psychological or physical vulnerability.”  The bill requires employers to adopt anti-bullying policies, enforce them and allow for a “neutral body” to determine if an abusive environment exists and how it should be remedied.  The bill defines a “neutral body” as an entity that has at least a majority of the voting members who are not involved in the employment setting at issue.  HB 292 allows employees to sue to enforce the mandate that an employer have a policy, but does not allow suits to remedy alleged bullying. The bill, sponsored by Rep. Stephen Sandstrom of Orem, has not yet been assigned to a committee for review.

EMPLOYERS AND UNDOCUMENTED WORKERS: Substitute HB 253 (http://le.utah.gov/~2011/bills/hbillamd/hb0253s01.htm), sponsored by Rep. Chris Herrod of Provo, is the Utah Legislature’s effort to deal with the employment of illegal immigrants.  This is considered an employment companion bill to Rep. Sandstrom’s efforts to enact the controversial Arizona immigration law here in Utah.  As reported recently by the Salt Lake Tribune (http://www.sltrib.com/sltrib/home/51249260-76/bill-business-committee-employers.html.csp ), HB 253 would target employers that knowingly hire “undocumented workers, suspending their business licenses for three days on a first offense and for a year on a second violation.”  The Tribune also notes that “one of the bill’s tougher ideas was removed by the House Business and Labor Committee — a provision that would require employers with five or more employees to participate in the federal E-Verify program under threat of state license suspension. Current law requires businesses with 15 or more to participate, though there is no penalty for noncompliance. The committee chose to keep the threshold at 15 employees — a development that made Herrod unhappy.”  Rep. Herrod has indicated he may try to reinstate the E-Verify mandate for employers with 5 or more employees.

SEXUAL ORIENTATION DISCRIMINATION: Sen. Ben McAdams of Salt Lake City has introduced a bill that would impose a statewide ban on discrimination based on sexual orientation and gender identity in employment and housing.  SB 148 (found at http://le.utah.gov/~2011/bills/sbillint/sb0148.htm ) would implement state wide the discrimination ban that has already been enacted by about a dozen Utah cities and counties.  It has not yet been assigned to a committee for hearing.

DOMESTIC VIOLENCE LEAVE: Sen. Patricia Jones of Salt lake City has introduced SB 40 (http://le.utah.gov/~2011/bills/sbillint/sb0040.htm ) would require any employers with over 25 employees to allow victims of domestic violence up to three days of leave time per year to deal with court or medical issues.  This leave would be in addition to any leave time the employee already has under the federal Family and Medical Leave Act (FMLA).  An employer could not discriminate against an employee taking such leave.  The bill currently is pending before the Senate Business and Labor Committee.

Adam is an associate in the Park City office of Jones Waldo.

Business Formation Issues
The first issue faced by most new enterprises is deciding which legal form the business should take.  For most companies, the most advisable business form will be a limited liability company or a corporation (either a C-corp or an S-corp).  The legal form that a company takes will determine the body of law that applies to the company and will in large part dictate how the company is managed, how its profits are taxed, the formalities that must be observed in order to maintain the company’s liability shield, who can be an owner of the company, and how easy it will be to make changes to the company in the future.  Notwithstanding the importance of this decision, most entrepreneurs blow through this decision with little or no real consideration for the consequences and end up spending significant amounts of money on attorneys and accountants later on to go back and fix the mistakes of the past.

• LLC vs S-Corp – Currently, the most popular business form for entrepreneurs is the LLC.  In Delaware alone (the jurisdiction of choice for most businesses), over a quarter of a million new LLCs were formed in the past 3 years, compared to only 90,156 corporations (C-corps and S-corps) and 22,924 partnerships (LPs and LLPs).  The LLC’s popularity derives largely from the fact that, generally speaking, it provides its investors with the same liability protection as a corporation but has the tax advantages of a partnership.  Additionally, the LLC is quite simply the most flexible and easiest to work with of any of the popular business forms.  Some new companies, however, may find that forming the company as an S-corp is a better fit.  S-corps are subject to significant legal restrictions but under certain circumstances an S-corp may provide advantageous tax treatment for its owners.

Maintaining Liability Shield
In my opinion, the biggest mistake that nearly all new businesses make is that they unknowingly destroy their liability shield.  One of the fundamental purposes of forming a company is to protect the company’s owners from the debts and obligations of the company itself.  Generally speaking, if the liability shield is maintained, owners will not be exposed to the debts, obligations and liabilities of the company; the worst that can happen is that they lose the money they invested.  If the liability shield is not maintained, however, third-parties may, under certain circumstances, “pierce the veil” of the company’s liability shield and come after the assets of the company’s owners. There are several reasons a court will allow a third-party to go after the assets of a company’s owners, but the most common reason is that the owners failed to maintain a clear distinction between their assets and the assets of the company. If an owner of a start-up fails to treat the company as an entity entirely distinct from itself, a court may choose to do the same.

In What Capacity are You Acting?
Often, one person will hold an ownership interest in the company, sit on the managing board of the company, and be an officer or an employee of the company. Each such capacity carries with it different legal obligations and authority, and it is imperative that individuals know in which capacity they are acting.

Dealing With the Uncomfortable Issues Before Things Get Uncomfortable
No one likes to sit down with the other founders of a company and discuss how the company will be run in the event that the relationship falls apart. Unfortunately, failing to have these discussions while everyone is still friends is often the reason that people start suing each other when the money starts rolling in or when the money starts drying up.  Business partners should discuss at the outset the specifics of how the company will be run, who has control over what, how profits will be distributed, and what the rules will be in the event that one partner wants to leave or sell their interest to a third-party.  These concepts should be clearly memorialized in the organizational documents of the company so that future disputes might be resolved merely by reference to the written agreements of the parties.

Asset Protection
When a company relies heavily on its assets for income, such as companies that deal primarily in intellectual property, it is especially important that these assets be protected. It is often possible to shield key assets from the liabilities of the company by carving them out and putting them into a separate entity, but often start-up companies opt for the simplicity of having all of their eggs in one basket notwithstanding the significant risk of doing so.
Intellectual Property
Companies that deal heavily in intellectual property must deal with an exhaustive list of issues in order to protect their rights and their property. Trying to understand these issues, much like trying to understand the federal tax code, can be a daunting task, and for most entrepreneurs the idea of spending significant amounts of their time dealing with this is about as exciting as going to the dentist. The problem is that when these issues aren’t handled with exactness, the consequences for a company and its investors can be catastrophic. One of the most common problems that arise with tech start-ups is that the ownership of the underlying IP can become the subject of a dispute. Often the original technology was developed by multiple people in collaboration or by the company’s employees alone but with the incorporation of a third-party’s property, and in either case the rights and obligations of the respective parties was never really clearly established. Companies that deal with significant intellectual property interests should have a legal agreement with all parties involved that stipulates that anybody working on the design, coding or testing of the company’s product assigns any and all intellectual property created by them to the company. Companies that fail to do so run the risk that in the future somebody claims that the programming work they did for the company represents their IP and not yours.

Oral Agreements

Everyone loves the idea of handshake deals, especially law firms—because when you make this mistake everyone ends up having to pay lawyers to resolve the inevitable disputes that arise from an oral agreement.  There is nothing fun about having to pay an experienced transactional attorney to memorialize your agreement on paper, but when it is done properly the odds of litigation goes way down, because everyone’s rights and obligations are clearly spelled out on paper.  Moreover, when the agreement is clear, any litigation that does arise can often be resolved by a court in response to summary judgment motions and the cost of a full trial can often be avoided.

This is Utah SHRM Legal-mail no. 2011-1 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

IN THIS POST:

-  NLRB PROPOSES NEW EMPLOYER POSTING REQUIREMENT

-  NEW ADA REGULATIONS PENDING

-  ANOTHER UTAH LOCAL GOVERNMENT PASSES ANTI-BIAS ORDINANCE

-  COMMENTS SOUGHT ON NURSING MOTHERS MANDATES

-  JETS/FAVRE SUED FOR SEXUAL HARASSMENT

NLRB PROPOSES NEW EMPLOYER POSTING REQUIREMENT:

The National Labor Relations Board (NLRB) recently proposed requiring most employers to post a notice in their workplaces telling employees about their rights under the National Labor Relations Act (NLRA).  Among other things, the NLRA gives employees the right to act in concert to seek to improve working conditions, form a union, seek help from a union and engaged in various union activities once a union is formed and/or recognized.  The rule would apply to all employers covered by the NLRA, which basically means all private employers.  The NLRA does not cover the following: agricultural laborers; persons employed in the domestic service of any person or family in a home; persons employed by a parent or spouse; independent contractors; supervisors; employers subject to the Railway Labor Act, such as railroads and airlines; federal, state, or local government employees; or any other person who is not an employer as defined in the NLRA.  Failure to post the required notice would be considered an unfair labor practice subject to sanctions.  Interested persons should comment on the proposed rule before

February 20, 2011.  Thereafter, the NLRB will finalize the nature and scope of the new posting requirement.  You can read a copy of the proposed new rule here:  http://www.nlrb.gov/About_Us/news_room/Notice_for_Rulemaking/2010-32019_PI.pdf

NEW ADA REGULATIONS PENDING:

In late December of 2010, the Equal Employment Opportunity Commission (EEOC) approved draft final regulations under the ADA Amendments Act (ADAAA).  The EEOC also sent them to the Office of Management and Budget (OMB) for review and approval.  OMB can take up to three months for this review, but the EEOC has asked for an expedited process.  The EEOC will not publicize the new regulations until the OMB review is completed.  There is speculation that the EEOC has changed its proposed regulations made public in 2009.

ANOTHER UTAH LOCAL GOVERNMENT PASSES ANTI-BIAS ORDINANCE:

Grand County in eastern Utah has joined the growing list of local governments to enact ordinances prohibiting workplace discrimination, based on sexual orientation, within the boundaries of the County.  Salt Lake City, West Valley City, Taylorsville, Salt Lake County, Park City, Summit County, Murray, Moab and Logan also have adopted similar measures at the municipal level.  Employers within all ten of these local governmental boundaries are subject to claims for discrimination and should take steps to manage that risk.  These steps should include adding sexual orientation and gender identity as protected classes listed in employee handbooks and policy statements and training supervisors and employees about the new legal requirements.  Ogden City is also considering passing such an ordinance.

COMMENTS SOUGHT ON NURSING MOTHERS MANDATES:

Congress recently amended the Fair Labor Standards Act to require, as of March of 2010, that covered employers provide nursing mothers with reasonable time and private space to express breast milk while at work.  Parts of the new requirement are clear, but parts are somewhat confusing.  The United States Department of Labor (DOL) likely will issue some kind of guidance clarifying the requirements.  Thus, DOL has asked employers and other interested parties to provide comments to DOL about the requirement.  Here is a link to a DOL Q & A describing its request for comments and its plans for guidance:  http://www.dol.gov/whd/nursingmothers/faqsRFI.htm A DOL fact sheet further describing the requirements for break times for nursing mothers is available here:

http://www.dol.gov/whd/regs/compliance/whdfs73.htm

JETS/FAVRE SUED FOR SEXUAL HARASSMENT:

As further proof of my oft-stated warning that no employer is immune from either actionable misbehavior by workers or from employment lawsuits, there is the recent news that future Hall of Fame QB Brett Favre and the New York Jets have been sued by two female employees employed by the pro team when Favre was the QB in 2008.  The women allege that Favre made sexual requests and comments and sent them sexual texts while he worked for the team.  Favre and the Jets deny the claims.  I could easily make comments about the risks of making passes on the job or trying to score while at work.  However, it is awfully early in the new year for such puns, so I will refrain.  I am sure 2011 will bring us many more opportunities for puns and other humor in the employment law world and I look forward to enjoying them with you.  Happy New Year!

This is Utah SHRM Legal-mail no. 2010-20 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

With your kind permission, and with the approaching holidays, I’d like to take a brief break from the usual employment law updates and instead, briefly write about something at least as important, if not more important.

2010 was a hard year, indeed a tremendously hard year.

Americans abroad died in war.  Americans at home were (and are) in a state of constant political war and turmoil and seemed unable, even unwilling, to try to find ways we could work with each other.  The thunder of our words. hurled across political and other divides, seemed intent on destruction rather than creation.

The beast of an economy has been rough on all of us and on each business.  We all have struggled, and worried and fret and then done the same all over again.

As if all that was not burdensome enough, this was a hard year personally.

In 2010, people close to me got diseases like cancer and diabetes, lost their jobs, lost their businesses, lost their homes, lost their marriages, lost their lives and/or sometimes even lost their hope and their way.

“Lost” describes well how I often felt, as do other words…confusion, uncertainty, pain, grief, fear and sadness. These words dominated me in 2010.  Perhaps you too?  Or perhaps similar words?

Maybe there is a reason Christmas and the other winter holidays (like Hanukkah, Kwanzaa and even Festivus) come at the end of the year.  Maybe the calendar knows we need to feel unburdened and loved at this time of the year.  Maybe the planners of time understand we must have a reason to look to a new year with something other than angst, dread and despair.

We have been there before, haven’t we?  As a nation and as individuals?  Watching a recent repeat performance of the 2009 Mormon Tabernacle Choir (the “Choir”) Christmas program, I was reminded of the story of Henry Wadsworth Longfellow’s Christmas.  In case you have not heard it, or do not recall it, here is the condensed version.

Longfellow, his wife and their five children loved their New England lives, and especially the New England bells of Christmas.  They enjoyed all for eighteen wonderful years.  But then, as it does, tragedy struck.  His wife died in a fire.  The Civil War began to rage.  His son nearly died from war wounds.  And Longfellow despaired.  He wrote a poem with the now famous lament, “And in despair I bowed my head; ‘There is no peace on earth,’ I said; ‘For hate is strong, And mocks the song Of peace on earth, good-will to men!’”  But then he again heard his beloved New England bells.  And at once he was filled with the treasured memories of his wife, and the laughter of his other four children, and the recovery of his wounded son.  Christmas was both his link to his past happiness, his way to find happiness in the here-and-now and his beacon to the coming year.   The Christmas bells gave him the infusion of love, peace and hope that allowed him to carry on despite the tragedy that sought to set him back.  We now know him for the poem and carol, “I heard the bells on Christmas Day.”

My mother (who would have been 80 today) was no stranger to tragedy herself.  She had her own Longfellow-ism, one not even original to her.  She used to tell me, “When God closes a door, he always opens a window.”

So, despite everything else, this year I plan to look to the window and listen for the bells.  I hope you will too.

Merry Christmas, Happy Holidays and Happy New Year.

And, because I can never match the eloquence of actor Ed Herrman and the beauty of the Choir, here is a link to their inspiring and touching version of Longfellow’s Christmas:

http://deseretbook.com/video/view/358

 
]]> http://joneswaldolaw.wordpress.com/2010/12/21/look-to-the-window-and-listen-for-the-bells/feed/ 0 jwlaw http://joneswaldolaw.wordpress.com/2010/12/16/shrm-newsletter/ http://joneswaldolaw.wordpress.com/2010/12/16/shrm-newsletter/#comments Thu, 16 Dec 2010 20:40:46 +0000 jwlaw http://joneswaldolaw.wordpress.com/?p=77 ]]> This is Utah SHRM Legal-mail no. 2010-19 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

SENATE EXTENDS EMPLOYER TUITION TAX BREAKS: National SHRM reports that the United States Senate voted this week to approve a massive $858 billion tax package that includes a two-year extension to a popular tax break for employer-provided tuition assistance. The proposal passed by an 81-19 vote, showing wide bipartisan support. According to national SHRM, “The legislation extends for two years the tax breaks enacted during the presidency of George W. Bush, including Section 127 or the tuition assistance tax exclusion for employees. The tax cuts were set to expire on December 31, 2010. Section 127, which allows employees to exclude up to $5,250 a year in employer-provided tuition assistance for undergraduate and graduate-level courses, has been a popular tax provision among employers and employees. The two-year extension of the tuition tax break was welcome news for business and employee advocacy groups such as the Society for Human Resource Management (SHRM) and the Coalition to Preserve Employer-Provided Education Assistance, which support a permanent extension of Section 127. Although the legislation passed by the Senate will extend Section 127 for two years, members of the coalition have promised to keep pushing for a permanent extension of popular tax provision.”  The tax bill now goes on for a vote in the United States House of Representatives, where it is expected to pass.  President Obama has indicated he will sign the bill into law.

EMPLOYERS PREDICT MORE LAWSUITS IN 2011: Responding to a 2010 survey by an employment practices liability insurer, a significant percentage of employers are predicting they will face increased job-related lawsuits next year.  Over one third of these companies (36%) participating in the survey said that an employment lawsuit was their most costly potential loss in 2011.  Almost 20% of responding companies said they expected to face an employment lawsuit in 2011.  The survey results seem driven in part by the record number of employment charges filed this past year with the Equal Employment Opportunity Commission (EEOC), as well as by the fact that employment claims typically rise in difficult economic times.

COURTS BATTLE OVER HEALTH CARE REFORM: One key element of health care reform requires smaller businesses to provide coverage to employees or pay fees into a pool for coverage.  But one of the most interesting, important and controversial parts of the health care reform package passed by Congress last year was the mandate requiring that uninsured individuals purchase some kind of insurance coverage, even if it must be done with some sort of public assistance.  The theory behind this mandate is that if more people are covered by private sector insurance, it will help bring down the overall costs of health care.  This is supposed to happen by getting some insurance payments to providers who often give health care services to this group without any payment (and who then charge the rest of us more money to make up the difference).  The individual mandate also carries with it the hope that if the uninsured can be covered by private insurance, there will be no need to try to cover them with a public insurance option like Medicare or Medicaid.  The individual mandate has been controversial, described by some as an affront to individual liberty and beyond the legislative power of the federal government.  Thus, shortly after it was passed, several lawsuits were filed challenging the constitutionality of the health care reform law.  The courts are now starting to issue rulings on these lawsuits, and they do not seem to be able agree on the appropriateness of health care reform anymore than the rest of the population.  For instance, federal courts in Michigan and Western Virginia have upheld the mandate, but a different federal court in Eastern Virginia has struck it down.  A Florida court has not yet ruled on a lawsuit pending there.  The individual mandate rule does not take effect until 2014, so the courts still have time to sort this all out.  The final verdict likely will come from the United States Supreme Court.

SUPREME COURT BUSY WITH OTHER EMPLOYMENT CASES TOO: The United States Supreme Court also will be busy next year with several other employment issues.  The Court has agreed to review the decision granting class certification to 1.5 million current and former Wal-Mart employees in their gender discrimination case. A federal judge and the U.S. court of appeals in San Francisco cleared the lawsuit to proceed as a class action despite the employer’s arguments that the hiring decisions at issue were made by thousands of different local stores and not as part of any national policy. The Court is also considering whether federal law allows for a claim of third party retaliation.  This case involves a claim by a male worker that he was discharged because his fiancée had brought a sex discrimination claim against the company that employed both of them.  Disagreeing with the Equal Employment Opportunity Commission (EEOC), which enforces the law, the lower federal appeals court had dismissed the male worker’s claim as not proper under the statute because he did not engage in any protected conduct himself.  If the Court rules for the plaintiff-employees in these cases, employers could face expanded risks of lawsuits for employment decisions.  Stay tuned for further developments!

OSHA SAYS NO TO TEXTING AND DRIVING: The federal Occupational Safety and Health Administration (OSHA) has announced an initiative against job-related driving by employees who are distracted by such things as texting and electronic devices.  In October of 2010, an assistant Secretary of Labor for OSHA sent an open letter telling employers they have a “responsibility and legal obligation” to implement and enforce policies prohibiting employees from work-related driving while distracted by things such as texting.  This letter also noted that federal safety laws will be violated when employers require that employees engage in conduct that distracts them while driving on the job.  His letter also suggested violations will occur when employers structure work to make distracted driving a practical necessity or when they encourage it via incentives.  So, take a look at your practices and policies on this point.  And, if you are reading this update while driving, STOP IT!  Good lawyers do not let friends (or clients) text and drive.

CONTENTS:

-  HEALTH CARE REFORM W-2 FORM REPORTING DELAYED
-  DOL STRATEGIC PLAN FOCUSES ON MISCLASSIFIED WORKERS
-  NEW FINANCIAL INSTITUTION DIVERSITY REQUIREMENTS
-  SOME NEW CALIFORNIA EMPLOYMENT LAWS
-  REMEMBER VOTING INTEGRITY AND ELECTION LEAVE STATE LAWS

HEALTH CARE REFORM W-2 FORM REPORTING DELAYED: The Internal Revenue Service (IRS) has delayed for one year a requirement of the health reform law that employers report the value of an employee’s health plan on tax forms.  The IRS issued a notice (found at: http://www.irs.gov/pub/irs-drop/n-2010-69.pdf) indicating that the W-2 reporting requirement will not become mandatory until an employer issues W-2 forms for employee income earned in 2012.  The IRS also has issued a draft (remember, this is only a draft) W-2 form for reporting 2011 income (available at:  http://www.irs.gov/pub/irs-utl/draft_w-2.pdf).  Regarding employer-sponsored health care benefits, the draft form states, “Cost of employer-sponsored health coverage (if provided by the employer). The reporting in Box 12, using Code DD, of the cost of employer-sponsored health coverage is for information only. The amount reported with Code DD is not taxable.”  The bottom line on all this appears to be that you can-but need not-report the value of health benefits on W-2 forms until you issue them in January of 2013, reporting employee income earned in the year 2012.  For more information, see: http://www.shrm.org/LegalIssues/FederalResources/Pages/W2Reporting.aspx The United States Treasury Department and the IRS anticipate issuing guidance on this reporting requirement before the end of this year, so stay tuned for updates!

DOL STRATEGIC PLAN FOCUSES ON MISCLASSIFIED WORKERS: The national five year strategic plan for the United States Department of Labor (DOL) includes plans for an increased crackdown on employer who misclassify workers as independent contractors instead of as employees.  DOL plans to work jointly with the United States Department of Treasury (i.e. the IRS) to “detect and deter” such misclassifications, which DOL says occur in as many as 30% of US employer and deprives the federal treasury of “billions” of dollars.  Another interesting note, according to the strategic plan: “the FLSA recordkeeping regulations under development will require that covered employers notify each of their workers of their rights under the FLSA, and provide employees with information regarding their hours worked and wage computations.”  You can read the full plan (reader warning…it is over 100 pages long) at: http://www.dol.gov/_sec/stratplan/StrategicPlan.pdf

NEW FINANCIAL INSTITUTION DIVERSITY REQUIREMENTS: Banks, credit unions and various other financial institutions face new diversity requirements as a result of the passage of the federal financial reform law in July of 2010.  The news law requires the federal agencies affected (Treasury, FDIC, Federal Reserve, National Credit Union Administration, etc.) to establish an office of minority and women inclusion to promote equal employment opportunity and diversity within the regulated financial institutions.  Contractors working with such agencies will have to agree, in their contracts, to fairly include women and minorities in their workforces.  Here are links to a couple of resource articles explaining these requirements in more detail:  http://www.shrm.org/hrdisciplines/Diversity/articles/pages/federalagencydiversity.aspx and http://www.dcemploymentlawupdate.com/2010/07/articles/federal-contracts-1/financial-reform-bill-establishes-diversity-requirements/

SOME NEW CALIFORNIA EMPLOYMENT LAWS: National SHRM has a helpful article on its website about some new employment laws taking effect in California, including a new paid leave requirement for organ donation.  Here is a link to the article: http://www.shrm.org/LegalIssues/StateandLocalResources/Pages/CalifEnactsNewEmploymentLaws.aspx Some headline highlights from the article include: (1) “California law previously entitled state employees who had exhausted available sick leave to take up to 30 days paid leave for donating organs to another person, and up to five days paid leave for donating bone marrow to another person. Known as the Michelle Maykin Memorial Donation Protection Act, SB 1304 adds a new Labor Code provision extending this public employee benefit to private employees. Private employers with 15 or more employees will be required to provide up to 30 days of paid leave per year for an organ donation in any one-year period, and up to five days of paid leave per year for a bone marrow donation. Leave may be taken in one or more periods.” (2) “California law provides unemployment insurance benefits to eligible employees who are unemployed through no fault of their own. Until passage of AB 2364, these provisions contained a ‘good cause’ exception allowing employees to retain their eligibility if they left employment to protect their ‘children’ from domestic violence abuse. AB 2364 amends this domestic violence ‘good cause’ exception to specify that an employee retains their eligibility if they voluntarily left employment to protect their ‘family’ (not simply ‘children’ as under prior law) from domestic violence abuse.” (3) “AB 569 amends California Labor Code § 512 to exempt the following categories of employees (as defined by the statute) from the meal period provisions otherwise applicable to nonexempt employees: construction occupation, commercial drivers, security officers, gas and electrical corporation employees and those of a publicly-owned local electric utility. The exemption applies only to such employees covered by a valid collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of employees, which expressly provides for meal periods for those employees, for final and binding arbitration of disputes concerning application of its meal period provisions, for premium wage rates for all overtime hours worked, and a regular rate of pay of not less than 30 percent more than the state minimum wage rate.”

REMEMBER VOTING INTEGRITY AND ELECTION LEAVE STATE LAWS: As election day 2010 approaches, keep in mind that some state laws regulate an employer’s efforts to influence the votes of its employees.  Other state laws require that employers allow time off for employees to vote if their work shifts would preclude them from voting.  Here are a couple of links to various state voting leave laws: http://www.shrm.org/LegalIssues/StateandLocalResources/StateandLocalStatutesandRegulations/Documents/statevotinglaw.pdf and http://www.wileyrein.com/resources/documents/fm14049.pdf Utah’s voting leave law states as follows: “(1) (a) Each employer shall allow any voter to be absent from service or employment on election day for not more than two hours between the time the polls open and close. (b) The voter shall apply for a leave of absence before election day. (c) (i) The employer may specify the hours during which the employee may be absent. (ii) If the employee requests the leave of absence at the beginning or end of the work shift, the employer shall grant that request. (d) The employer may not deduct from an employee’s usual salary or wages because of the absence. (2) This section does not apply to an employee who has three or more hours between the time polls open and close during which the employee is not employed on the job. (3) Any employer who violates this section is guilty of a class B misdemeanor.”  Utah law also makes it a criminal misdemeanor for an employer to try to influence an employee’s vote, stating, “It is unlawful for any corporation, or any officer or agent of any corporation, to influence, or attempt to influence, induce, or compel by force, violence, or restraint, or by inflicting or threatening to inflict any injury, damage, harm, or loss, or by discharging from employment or promoting in employment, or by intimidation, or in any manner whatever, any employee to vote or refrain from voting at any election provided by law, or to vote or refrain from voting for any particular person or measure at that election.”  Similarly, Utah law also provides as follows: “It is unlawful for any employer, corporation, association, company, firm, or person to:(i) enclose their employees’ salary or wages in envelopes on which there is written or printed any political mottoes, devices, or arguments containing threats, express or implied, intended or calculated to influence the political opinion, views, or action of the employees; or (ii) within 90 days of any election provided by law to put up, or otherwise exhibit, in its, their, or his factory, workshop, mine, mill, boarding house, office, or other establishment or place where employees may be working or be present in the course of employment, any handbill, notice, or placard containing any threat, notice, or information, that if any particular ticket or candidate is or is not elected: (A) work in the establishment will cease in whole or in part; (B) the establishment will be closed; (C) wages of workmen be reduced; or (D) other threats, express or implied, intended or calculated to influence the political opinions or actions of employees.”

Written by: Employment Attorney, Michael Patrick O’Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O’Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.