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SHRM Newsletter: Utah Legislative Update Part 2

03/02/2011

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March 2, 2011

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

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!

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.