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Utah SHRM Newsletter: Legislative Update, Affordable Care Act and More
Posted on Mar. 26, 2013

This is Utah SHRM Legal-mail no. 2013-6 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).








EEOC EXPRESSES VIEWS ON DRUG TESTING: The Equal Employment Opportunity Commission (EEOC) recently filed suit against a company and alleged that the company went too far with its drug testing policies. That lawsuit resulted in a settlement with the company paying $750,000.  The settlement included a requirement that prohibited the company from “conducting employee drug screens that are not job-related or consistent with business necessity.” You can read about this lawsuit, and the settlement terms, here: Thus, if you are drug testing and/or acting on those results, you want to show that you have a legitimate business reason to test (i.e. you are not simply doing it in an effort to ferret out medical information about employees) and you want to document that there were legitimate business reasons for discharging/disciplining an employee based on the results of those tests. This is especially true if the positive test results are for prescription drugs, rather than illegal drugs. For example, in a related note, a federal court in Pennsylvania recently dismissed an EEOC lawsuit challenging an employee’s practice of conducting random drug testing because the court found that the random tests served the legitimate business interests of ensuring safety in safety-sensitive positions.


EEOC SUES FOR FAILURE TO PROVIDE SIGN INTERPRETER: In other EEOC news, the EEOC recently sued a large, national retailer that failed to provide a sign language interpreter for a deaf applicant and then did not hire her. The company had said the applicant should have provided her own interpreter for a job interview, so the applicant brought along her employer who provided sign language interpretation. The EEOC’s position is that given the retailer’s size and resources, it would not have been an undue hardship for the company to provide the interpreter.


UTAH LEGISLATIVE UPDATE: The Utah Legislature concluded its annual lawmaking session on March 14, 2013. The Legislature passed a number of bills that will impact employers, including SB142 repealing Utah’s statutory blacklisting prohibitions and Substitute HB 100 prohibiting an employer from requiring an applicant or employee to give the employer access information (e.g. a login or password) to personal internet accounts or from firing someone who declines to give employer access unless it is an account paid for or provided by the employer. The Legislature also postponed the start date of Utah’s guest worker program for two years. Several employment law bills did not pass. They covered such topics as: (1) prohibiting discrimination based on sexual orientation and gender identity; (2) requiring Utah’s version of OSHA to create a program of regular safety inspections where a third of its inspections occur even in the absence of any safety complaint or notice of a possible problem; (3) prohibiting disability discrimination in places of public accommodation; (4) requiring that persons applying for a commerce license must confirm they are (or are not) complying with employee verification laws (EVerify for all employers with 15 or more employees); (5) prohibiting employment discrimination based on a person’s weight or height; and (6) requiring that any employer who gets a credit score re: an applicant or employee to disclose (in writing) to that applicant/employee the name of the agency that gave the score, the model used to generate it and the score itself.


AFFORDABLE CARE ACT PROHIBITS RETALIATION: As you gear up for the full implementation of the federal health care reform laws (the Patient Protection and Affordable Care Act of 2010), keep in mind that the new law prohibits retaliation against employees for engaging in acts protected by the law. This includes providing information to an employer or the government about possible violation of the Act, testifying in a related proceeding, assisting in such a proceeding and refusing to engage in or participate in conduct violating the Act. Employees with claims of retaliation must file them with the United States Department of Labor for investigation by the whistleblower unit of the Assistant Secretary for Occupational Safety and Health.


DISHONESTY WHILE ON FMLA LEAVE UPHELD AS TERMINABLE OFFENSE: A Michigan federal court has dismissed a wrongful discharge lawsuit under the Family and Medical Leave Act (FMLA) because the employer had a reasonable belief that the employee was abusing her leave time. The case involved a situation where the employee, a student nurse, was injured while moving stretchers. While on leave she took a planned trip to Mexico. Her doctor indicated that this was less strenuous than her work duties and the employee said she had used a wheelchair at the airport. However, while on vacation, the employee posted Facebook pictures of her riding motorbikes, holding beer bottles and holding her grandchildren. When confronted, the employee admitted she did not use wheelchairs at airports. The employer fired her for dishonesty and falsifying records. The court upheld the termination based on the plaintiff’s admitted lies and the employer’s reasonable belief she had abused her leave.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012