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SHRM Newsletter: Senate Passes Anti-Discrimination Bill But House Will Not
Posted on Dec. 5, 2013

This is Utah SHRM Legal-mail no. 2013-22 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:

-  SENATE PASSES ANTIDISCRIMINATION BILL BUT HOUSE WILL NOT

-  STATE MORE CLEARLY DEFINES “MISCONDUCT”

-  REMINDER ON JUST CAUSE STANDARD

-  RECENT SETTLEMENTS AND LAWSUITS

-  NATIONAL REPORT FINDS DRUG TESTING SUCCESSFUL

 

SENATE PASSES ANTIDISCRIMINATION BILL BUT HOUSE WILL NOT: The United States Senate has passed a bill that would prohibit, on a national basis, workplace discrimination against persons based on actual or perceived sexual orientation or gender identity. However, leaders in the House of Representatives have indicated that the bill will not be approved there, so it is unlikely to become law. Nevertheless, this is the first time a body of Congress has approved such a bill, so it may well become law someday soon. About half the states already prohibit such discrimination. Utah is not one of them, but over a dozen Utah local governments (cities and counties) have passed ordinances prohibiting discrimination based on sexual orientation or gender identity. Many employers already also prohibit such discrimination by company policy.

STATE MORE CLEARLY DEFINES “MISCONDUCT”: Oklahoma statutes now more clearly define the term “misconduct” when used as an employer defense to claims for unemployment compensation by former employees. Although the term is not applicable in Utah, statutes in Utah allow a denial of benefits if employment is terminated for “just cause,” a similar standard. Thus, the Oklahoma definition of misconduct is at least instructive for Utah employers. The Oklahoma definition includes the following things: unexplained absenteeism or tardiness; willful or wanton indifference to or neglect of the employee’s duties required; willful or wanton breach of any duty required by the employer; the mismanagement of a position of employment by action or inaction; actions or omissions that place in jeopardy the health, life, or property of the employee or others; dishonesty; wrongdoing; violation of a law; violation of a policy or rule adopted to ensure orderly work or the safety of the employee or others.

REMINDER ON JUST CAUSE STANDARD: Speaking of claims for unemployment compensation in Utah, as noted above to deny benefits to a terminated employee, an employer must show that it had “just cause.” What does this mean? According to the Utah Department of Workforce Services employer handbook (found at: https://jobs.utah.gov/ui/employer/Public/Handbook/0403%20Employer%20Handbook_Final.pdf ), the basic factors “that establish just cause” and are “essential for determination of ineligibility” include: (1) Culpability, i.e. the “claimant’s conduct was harmful to the employer’s interests;” (2) Knowledge, meaning the claimant “knew what conduct was expected by the employer;” and (3) Control, i.e. the “claimant had control over the conduct that caused the discharge.” DWS notes, “For each factor, isolated instances of carelessness or good faith errors in judgment are not sufficient to establish just cause for discharge.”

RECENT SETTLEMENTS AND LAWSUITS: The United States Occupational Safety and Health Administration (OSHA) has ordered a North Carolina trucking company to reinstate three former employees and pay them id="mce_marker" million in damages for alleged retaliation. OSHA has concluded that the truckers were whistleblowers who were fired after reporting safety concerns. A national produce company has agreed to pay id="mce_marker".2 million to settle claims that workers on the company’s Hawaiian farms were subjected to poor housing, insufficient food, low wages and deportation threats. The settlement resulted from claims of race and national origin discrimination claims filed with the Equal Employment Opportunity Commission (EEOC). The Federal Fifth Circuit Court of Appeals recently rejected a ruling from the National Labor Relations Board (NLRB) ruling that arbitration agreements barring employees from pursuing class or collective claims violate federal labor law. The NLRB had held that such collective claims were protected by the employees’ federal rights to engage in concerted activity.

NATIONAL REPORT FINDS DRUG TESTING SUCCESSFUL: a study from a national provider of health and drug testing services has concluded that the number of positive drug tests is decreasing for employers who engage in regular workplace drug testing. The study concluded that from 1988 to 2012, positive drug test results decreased from 13.6 percent to 3.5 percent. Despite the positive news, the study also showed that the positive test rates for amphetamines has tripled and that positive test rates for prescription opiates has significantly increased. Remember that drug testing is primarily regulated by state laws and thus employers must comply with the applicable workplace drug testing laws of the states where its employees reside.

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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

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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