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SHRM Newsletter: UTAH LEGISLATIVE UPDATE

02/24/2012

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February 24, 2012

This is Utah SHRM Legal-mail no. 2012-4 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

-  MILITARY LEAVE RELATED CLAIMS INCREASE

-  PREGNANCY AND CAREGIVER DISCRIMINATION HEARINGS

-  EMPLOYERS SAID TO LAG ON LACTATION BREAK RULE 

-  NLRB CHALLENGES CLASS ACTION WAIVERS

UTAH LEGISLATIVE UPDATE:  There are only two weeks left in the 2012 session of the Utah State Legislature.  So far, the current session is more noteworthy for the employment law bills rejected than for those that might become law.  For instance, even though a dozen local cities/counties prohibit job discrimination based on sexual orientation, the Legislature rejected SB 51, which would have made such a prohibition apply statewide (bill text here: http://le.utah.gov/~2012/bills/sbillint/sb0051.htm).  The Legislature also has declined to act on a proposed bill that would repeal the guest worker provisions enacted last year as part of the Legislature’s immigration law reform package.  The Utah House also has not moved yet to even consider HB 477 (text available here: http://le.utah.gov/~2012/bills/hbillint/hb0477.htm), which would impose stiff penalties on employers for not using E-Verify. The Legislature may consider First Sub. HB 196 (text here: http://le.utah.gov/~2012/bills/hbillint/hb0196s01.htm), a bill that would require public employers to adopt policies prohibiting bullying, which is defined as typically 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 Legislature may also consider HB 106 (text here: http://le.utah.gov/~2012/bills/hbillint/hb0106.htm), which prohibits collective bargaining by public employees except regarding wages and benefits. 

MILITARY LEAVE RELATED CLAIMS INCREASE: Recent testimony before Congress indicates that employers are now facing an increase in military leave complaints related to the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Claims filed in 2010 increased 700% over claims made just four years before, in 2006.  Commentators have attributed the increase in claims to the fact of the Iraq and Afghanistan wars, as well as changes in call ups of reserve members.  Employer should make certain they are familiar with and complying with the provisions of this law.  A summary description of the law is available here: http://www.dol.gov/vets/programs/userra/userra_fs.htm

PREGNANCY AND CAREGIVER DISCRIMINATION HEARINGS: The Equal Employment Opportunity Commission (EEOC) recently held hearings on the issues of workplace discrimination against caregivers and pregnancy.  The EEOC heard some interesting testimony alleging that: (1) many women lose their jobs when they tell their employers they are pregnant; (2) many pregnant workers are forced to take leave before they need it; (3) pregnant workers are unduly excluded from light duty programs; (4) job applicants with care giving duties (usually mothers) are viewed as less committed to the job; (5) many employers prefer women without children to women with children.  These are typical of the sorts of claims that are made against employers regarding pregnancy and care giving issues.  Employers should watch for such possible risk areas and make sure their policies and practices do not give rise to claims of liability.

EMPLOYERS SAID TO LAG ON LACTATION BREAK: Some recent surveys suggest that employers may be dragging their feet on complying with federal rules requiring break time and private space for female employees who are nursing mothers and need to express milk while at work.  A 2010 amendment to the Fair Labor Standards Act (FLSA) imposed these new requirements on employers with 50 or more employees The rules have been summarized in past updates and another summary of them can be found here: http://www.dol.gov/whd/regs/compliance/whdfs73.pdf. The survey indicated that 57% of those persons surveyed did not even know about the new break benefits and more than a third of them said they had no scheduling flexibility for lactation purposes.  Many employers may be waiting promised guidance from the Department of Labor on how to implement the new rules.  DOL has not committed to a deadline for releasing its new rules.  In the interim, employers are bound by the new rules and must make their best efforts to comply with the same.

NLRB CHALLENGES CLASS ACTION WAIVERS: The National Labor Relations Board (NLRB) has issued a ruling (against a Houston builder called DR Horton) stating that class action waiver agreements with employees violate the provisions of the National Labor Relations Act allowing employees- even in nonunion workplaces- to engage in concerted activity.  Many employers often include such waiver language as part of arbitration agreements they enter into with workers.  The NLRB did say an employer could prohibit class action arbitration in such mandatory agreements as long as employees are still free to pursue class action litigation in court (which may well defeat the point of having an arbitration agreement).  Unionized employers also can try to bargain for collective bargaining agreements that preclude unions from encouraging class actions.  The NLRB ruling is on appeal, so stay tuned for updates.  In the interim, talk to your legal counsel and determine if your class action waivers are at risk under the Horton decision.

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.