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SHRM Newsletter: Utah Legislative Update Part 3

03/22/2011

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March 22, 2011

This is Utah SHRM Legal-mail no. 2011-5 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

CONSCIENCE CLAUSE LAWS

-  ADAAA REGULATIONS IMMINENT

-  UPDATED I-9 HANDBOOK

UTAH LEGISLATIVE UPDATE:  Here is the latest status report on employment law issues from the 2011 Utah State Legislature (session ended March 11, 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.  Governor Herbert is expected to sign it.  Sen. Mayne also sponsored SB 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. This bill has been approved by Governor Gary Herbert.

(2) Immigration: The Legislature also addressed illegal immigration in two bills signed into law by Governor Herbert.  HB 497 is the enforcement bill (text found at: http://le.utah.gov/~2011/bills/hbillenr/hb0497.htm ) focused primarily on involving local law enforcement in immigration enforcement.  HB 116 creates a guest worker permit program (see: http://le.utah.gov/~2011/bills/hbillenr/hb0116.htm ).  It does not go into effect until a federal waiver is obtained, but once that happens, the new law prohibits employing an undocumented worker without a permit.  It creates a permit system for guest workers and a new verification system, called “U-Verify” to allow employers to verify validity of permits. It also requires, once in effect, a private employer employing 15 or more employees to verify the employment eligibility of new employees through the E-verify program or face penalties. The law 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.

(3) Other Bills: The Legislature did not approve four other proposed new employment laws.  One would have prohibited discrimination based on sexual orientation (SB 148: http://le.utah.gov/~2011/bills/sbillint/sb0148.htm ).  Another bill required 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 ), required 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 have prohibited the enforcement of noncompete agreements for employees separated from employment in connection with a reduction in force.

CONSCIENCE CLAUSE LAWS:  The federal government recently repealed the bulk of a federal regulation that allowed health care workers to decline to provide care that they found objectionable based on religious or other grounds.  The old regulation allowed for the limitation of federal funding to governmental entities, hospitals, health plans and clinics that did not accommodate health care providers who refused to participate in a wide range of possibly-objectionable procedures, including providing contraceptives.  The new rule, effective as of mid-March of 2011, is more narrow, protecting only objections to abortions and sterilizations.  On a related note, the Utah Legislature recently passed HB 353 (http://le.utah.gov/~2011/bills/hbillenr/hb0353.htm ). HB 353 states that a health care provider may, on religious or moral grounds, refuse to perform or participate in any way, in an abortion or a procedure that is intended to, or likely to, result in the termination of a pregnancy.  It also allows a health care facility to refuse to admit a patient for the same reasons. Governor Herbert is expected to sign it. 

ADAAA REGULATIONS IMMINENT:  Any day now the Equal Employment Opportunity Commission (EEOC) will issue its final regulations interpreting the Americans With Disabilities Act Amendments Act (ADAAA).  National legal commentators have noted that the regulations may answer such pending questions as: (1) whether a temporary impairment of less than 6 months is substantially limiting and covered by the ADAAA; (2) if certain conditions (e.g. cancer, diabetes, epilepsy, HIV and AIDS, multiple sclerosis) will be “per se” disabilities and meet the definition of disability regardless of how manifested in an employee; (3) if such “per se” conditions approach nullifies the usual ADA’s case-by-case approach; (4) if employers must reasonably accommodate those with a “record of” disability; and (5) if the ADA “regarded as” analysis prohibits action against an individual based on symptoms related to an impairment or on mitigating measures such as medication, even if the employer is unaware of the underlying impairment.  Stay tuned for details!

UPDATED I-9 HANDBOOK:  The United States Citizenship and Immigration Services (USCIS) agency recently released an updated version of the I-9 Handbook for Employers.  The new handbook (found at:  http://www.uscis.gov/files/form/m-274.pdf) provides helpful and updated guidance for how to correctly administer the I-9 process.  Given the pattern of increased immigration and I-9 audits and enforcement by the Immigration and Customs Enforcement (ICE branch of the Department of Homeland Security, you may want to take a look at the new handbook.

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.