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SHRM Newsletter- Utah Same Sex Marriage Ban Struck Down
Posted on Dec. 23, 2013

This is Utah SHRM Legal-mail no. 2013-23 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).







UTAH SAME SEX MARRIAGE BAN STRUCK DOWN: On December 20, 2013, a Utah federal court struck down Utah’s voter-approved ban on same sex marriages. The court ruled that a 2004 law passed by voters violates same sex couples' rights to due process and equal protection under the 14th Amendment of the United States Constitution. Utah news outlets are reporting that the Salt Lake County Clerk has been issuing marriage licenses to same-sex couples. The State likely will appeal. Unless the court stays its order pending an appeal, the apparent effect of the ruling is that Utah cannot prohibit same sex marriages, turning Utah into one of the states that now allows same sex marriage. This would mean that Utah employers would have to treat same sex spouses the same as opposite sex spouses for purposes of employment and benefits. The New Mexico Supreme Court also recently ruled that it is unconstitutional to deny marriage licenses to same sex couples. This is a fast-evolving area of the law so stay tuned for developments. You can read the recent Utah ruling here:

IRS ISSUES NEW GUIDANCE ON SAME SEX SPOUSE BENEFITS Just in time, at least for Utah and New Mexico employers, the Internal Revenue Service recently issued some new guidance on providing benefits for same sex couples. The new guidance can be found here: National SHRM members can read some details and tips about the new guidance here:

HOW TO GET SUED IF YOU ARE AN EMPLOYER: The California Chamber of Commerce has published an interesting list of the top ten ways an employer can get itself sued. Here is the list: (1) Classify all employees as exempt whether they are or not; (2) Be nice to employees and let them take their lunch whenever they want to; (3) Make everyone an independent contractor because having employees is too much trouble; (4) Don’t train managers on harassment and discrimination; (5) Let employees decide their own work hours; (6) Terminate any employee who takes a leave of absence because leaves are too inconvenient and hard to administer; (7) Don’t give terminated employees their final pay unless they come to get it; (8) Lend employees money and deduct it from their pay (note, this is a unique California issue); (9) Use noncompete agreements (again, a unique California issue); and (10) Implement a “use it or lose it” vacation policy (unique to California). You can read the full list (and fuller explanations of why these are good ways to get sued) here:

HIGHLIGHTS FROM EEOC 2013 PERFORMANCE REPORT: The Equal Employment Opportunity Commission (EEOC) has issued its performance report for the just-ended fiscal year 2013. The report confirms that the EEOC is a formidable watchdog of employer activities. Here are some highlights from the report: (1) “The EEOC received a total of 93,727 private sector charges of discrimination in FY 2013, a 6,000 charge decrease from the prior three fiscal years; however, it is still one of the top five fiscal years in terms of receipts.” (2) “The average time for the enforcement staff to investigate and bring charges to resolution was reduced by 21 days to 267 days.” (3) “The EEOC obtained a record $372.1 million in monetary relief for victims of private sector workplace discrimination in FY 2013. This is $6.7 million more than was recovered last year, and the highest level obtained in the Commission's history. Overall, the agency secured both monetary and non-monetary benefits in FY 2013 for more than 70,522 people through administrative enforcement activities including mediation, settlements and conciliations.” (5) “EEOC filed 131 merits lawsuits during FY 2013. These included 89 individual suits, 21 non-systemic class suits, and 21 systemic suits. Legal staff resolved 209 merits lawsuits for a total monetary recover of $39 million.”

EMPLOYER HOLIDAY PARTY TIPS: ‘tis the season for lights, joy, peace, carols and warnings from employment lawyers about employer holiday parties. I have read lots of recent articles warning what you should do or not do on this topic. Why? Firm parties are employer events and employers may be liable for what happens there. Here are summaries of three of the best tips I have read. First, politely but clearly remind people that while you want them to have fun, you also expect that they will behave themselves at work parties just like they would at work. In other words, being at the firm holiday party does not give you immunity from sexual harassment. Second, recognize diversity. A lot of your employees celebrate Christmas, but probably not all of them do. Include other related holidays too and have an all-holiday party so all your employees know they are welcome. Finally, beware and be intelligent about the service of alcohol, because it creates the risk of too much reduced inhibition and it may cause problems if people drink and drive. If you do serve alcohol, be mindful of the risks and get legal advice on the best way to try to mitigate them. Party on dudes!

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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