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SHRM Newsletter- Same Sex Marriage Saga Continues in Utah
Posted on Jan. 18, 2014

This is Utah SHRM Legal-mail no. 2014-1 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).








SAME SEX MARRIAGE SAGA CONTINUES IN UTAH: The same sex marriage saga continues to unfold in Utah. In December of 2013, a Utah federal court struck down Utah’s ban on same sex marriages. Both the federal district court and appeals court refused to stay the decision while it is appealed. However, the United States Supreme Court granted a stay, meaning the decision has no effect from the date of the stay forward and Utah reverts, for the time, back to being a state that does not allow or recognize same sex marriages. During the two or so weeks before this stay was granted, all County Clerks in Utah issued marriage licenses to same-sex couples and several hundred of these couples are now married. What must employers do regarding these “interim” marriages in light of the stay and appeal? This is now unclear, unfortunately. Right after the stay was issued, Utah’s Governor directed state agencies not to recognize the interim marriages and declared Utah would not recognize them. A few days later, however, the United States Attorney General stated that the Federal government will recognize these interim marriages. A federal judge in Oklahoma also recently ruled that State’s ban on same sex marriage was unconstitutional. Private employers likely will be able to treat same sex spouses married in Utah before the stay the same as opposite sex spouses for purposes of employment and benefits, but consult with your legal counsel and with your benefits provider before making any such decisions. This is a fast-evolving area of the law so stay tuned for developments.

STRANGE EMPLOYEE BEHAVIOR MAY NOTIFY EMPLOYER OF FMLA NEED: A federal court in South Carolina has ruled that an employer must go to trial on a Family and Medical Leave Act (FMLA) claim involving an employee who exhibited strange behavior but was not given notice of his FMLA leave rights. The case involved an employee whose supervisor knew he previously had been diagnosed with bi-polar disorder and was on depressants and receiving counseling. His co-workers also reported that he was engaging in strange behavior. The employee did not ever ask for FMLA but did ask to take vacation time because he was stressed and needed to unwind. The employer denied the requested vacation time because it had scheduled mandatory training at the same time. When the employee did not show up at work for the training, he was fired for uncooperative behavior. The employee sued for alleged FMLA and Americans With Disabilities Act (ADA) violations. The court dismissed the ADA claims, but ruled that in this context, the reports of strange behavior may have put the employer on notice that it should have offered FMLA leave to the employee. As a result, the court allowed the employee’s claim that the employer interfered with his FMLA leave rights to go to trial.

REMEMBER TO PRESERVE RECORDS WHEN CLAIMS MAY BE MADE: I have often mentioned in these updates that employers must remember to take steps to preserve records when they are notified of a possible lawsuit, are sued or receive notice of an administrative charge, e.g. from the Equal Employment Opportunity Commission (EEOC). This is called the litigation hold process. I recently read a good article also explaining this mandate and ways to meet it. As a reminder, here is a link to the article:

PROPOSED SENATE BILL WOULD BAN CREDIT CHECKS ON EMPLOYEES: A bill recently introduced into the United States Senate would ban employers from using credit checks for employment purposes. Senator Elizabeth Warren’s bill (S. 1837, text available here: ) would prohibit an employer from asking employees or applicants for permission to do credit checks and would also prohibit their use for adverse employment actions. Senator Warren has noted that she filed the bill because credit problems more often reflect misfortune or economic stress rather than an employee’s character or ability to do the job. Ten states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington) already limit an employer’s use of credit information. The bill is now pending in the Senate’s Committee on Health, Education, Labor, and Pensions.

UTAH LEGISLATIVE UPDATE: The Utah Legislature convenes for its annual 45 day session on January 27, 2014. The Legislature typically considers some bills that will impact employers and the 2014 session will be no different. For example, the Legislature is likely to consider whether or not Utah should have a state-wide ban on discrimination based on sexual orientation and/or gender identity. No such state or federal law exists, although the United States Senate recently passed such an antidiscrimination bill and over a dozen local governments in Utah prohibit such bias. The current version of the bill (SB 100) can be found here: ). Legislators also have requested bills dealing with the state minimum wage (likely an effort to raise it) and regarding Labor Commission decisions. The text of these proposed bills is not yet available. I will update this list as more bills are made public. If you are aware of any pending bills on employment issues not included here, please let me know ASAP.

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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