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SHRM Newsletter: Utah Legislative Update

02/15/2011

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February 15, 2011

This is Utah SHRM Legal-mail no. 2011-3 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.

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.