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SHRM Newsletter: Utah Immigration Law Challenged and Put on Hold

05/16/2011

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May 16, 2011

This is Utah SHRM Legal-mail no. 2011-9 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 IMMIGRATION LAW CHALLENGED AND PUT ON HOLD

-   SEXUAL ORIENTATION BIAS BILL INTRODUCED AGAIN

-   REMEMBER OVERTIME ON NONDISCRETIONARY BONUSES 

-   SIGNIFICANT EMPLOYMENT LAW VERDICTS AND SETTLEMENTS

-   NUHRA CHAPTER HOSTING STATE LEGISLATORS ON MAY 19

UTAH IMMIGRATION LAW CHALLENGED AND PUT ON HOLD:  As you will recall from reading these updates, the Legislature and Governor Herbert recently approved two new laws addressing immigration issues.  The first of the new laws, HB 497, is the enforcement bill (text found at: http://le.utah.gov/~2011/bills/hbillenr/hb0497.htm.  It focused on involving local police in immigration enforcement.  HB 116, creates a guest worker permit program (see: http://le.utah.gov/~2011/bills/hbillenr/hb0497.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.  Various plaintiffs recently sued the State to challenge the propriety of the enforcement act.  A Utah federal court judge has stayed the effective date of the law while considering legal arguments.  A similar law in Arizona was ruled to be unconstitutional, but an appeal followed and is now pending.

SEXUAL ORIENTATION BIAS BILL INTRODUCED AGAIN:  A bill (S. 811) prohibiting employment discrimination based on sexual orientation and gender identity was re-introduced into the United States Senate in mid-April of 2011.  The bill, sponsored by both Democrats and Republicans, is identical to similar bills unsuccessfully introduced into past Congressional sessions.  Numerous states and local governments (including about a dozen Utah cities and counties) already prohibit job discrimination based on sexual orientation and gender identity.  The Employment Non-Discrimination Act (ENDA) would apply such prohibitions on a uniform, national basis.  A similar bill (H.R. 1397) has been introduced in the House of Representatives.

REMEMBER OVERTIME ON NONDISCRETIONARY BONUSES:  One of the common traps into which employers fall is the failure to consider nondiscretionary bonuses when making overtime payments to nonexempt employees.  The Fair Labor Standards Act (FLSA) does require that such bonuses be counted as part of the regular rate for calculating overtime.  This means, for example, that when an employer pays a nondiscretionary bonus at the end of the year, it needs to go back and attribute a portion of it to any pay period when a nonexempt employee worked overtime.  This common problem is playing out in litigation recently filed in Texas where the United States Department of Labor sued an energy company claiming it violated FLSA by not counting these bonuses in overtime pay.  Employers should either ensure that all bonus decisions are completely discretionary or implement procedures to make sure nonexempt employees are paid any overtime due on a bonus payment.  The relevant regulations start at 29 CFR section 778.208.  Here is a link to where these regulations can be found: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.2.38&idno=29

SIGNFICIANT EMPLOYMENT LAW VERDICTS AND SETTLEMENTS:  The Equal Employment Opportunity Commission (EEOC) has settled a longstanding case alleging pervasive harassment against seven dozen female employees at a national consulting firm.  The firm has agreed to pay $8 million to settle the case, which has been litigated for the last ten years.  The charge alleged that the female employees were victims of widespread comments, touching, assaults, propositions and other misconduct.  The EEOC also has won a $1.5 million jury verdict against a Tennessee office supply company that also was accused of sexual harassment.  The EEOC also recently won a half million dollar verdict in Louisiana on behalf of a male employee who claimed he was sexually harassed by a male supervisor.

NUHRA CHAPTER HOSTING STATE LEGISLATORS ON MAY 19:  The Northern Utah Human Resources Association will be hosting two Utah state legislators at their half-day conference scheduled for May 19, 2011.  Employment lawyer (and NUHRA’s Legal and Legislative Director) Brent Orozco will also present tips on navigating the legal mine field of employment relationships.  The chapter also will present information about dealing with the tricky issues of military leave.  For more information, see: http://www.nuhra.org/Event_Details.asp?fair=10012248

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.