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SHRM Newsletter- New Utah Same Sex Marriage Lawsuit Filed
Posted on Feb. 3, 2014

This is Utah SHRM Legal-mail no. 2014-2 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).









NEW UTAH SAME SEX MARRIAGE LAWSUIT FILED: You all know this by 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. 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. Several of these same sex married couples now have filed their own lawsuit against the State of Utah insisting that their marriages performed before the stay should be recognized as valid in the State of Utah. Stay tuned for developments.

CORRECTED VERSION: STRANGE EMPLOYEE BEHAVIOR MAY NOTIFY EMPLOYER OF FMLA NEED: There was a typo error in this update from the last email, thus a corrected version follows. 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 anti-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.

INDEPENDENT CONTRACTOR STANDARDS APPLIED: A South Carolina court has issued an interesting opinion applying (and trying to help clarify) the legal standard for determining if a worker is an employee or an independent contractor. This is a bit of a troublesome issue for employers today. The case involved a hospital which had a certified nurse anesthetist working for it as an independent contractor. The nurse was injured in an operating room fall and sought worker’s compensation benefits. The court found she was an employee- and thus eligible for benefits- after analyzing four factors: (1) the hospital’s right to control and actual exercise of control, over the nurse; (2) the hospital’s furnishing of equipment (medical equipment and supplies) for the nurse to use in her work; (3) method of payment (which, because she was paid by a staffing agency and not the hospital, suggested she was not an employee); and (4) the hospital’s ability to determine if the nurse’s performance was satisfactory and right to fire her. You can use these same factors (and this factual scenario) to compare and contrast with your own independent contractors and determine if your classifications are proper or at risk.

EMPLOYMENT LAW NEWS BRIEFS: Here are some employment law issues currently making news headlines. First, want a pay raise? President Obama has announced he will sign a new executive order regarding federal contractors and raising the minimum wage on new federal contracts to id="mce_marker"0.10 per hour. The new order is expected to take effect sometime in 2015. Second, timing is everything, right? A federal court in Tennessee has allowed a jury trial in a retaliation case where, according to the court, the employer’s decision to conduct a criminal background check and reassign the employee was suspiciously close in time to the commencement of an Equal Employment Opportunity Commission (EEOC) investigation into the employee’s claims of racial bias. Third, to don or doff? The United States Supreme Court has ruled that time spent by production workers “donning and doffing” their protective gear is not paid time. This case involved interpretation of a provision of the Fair Labor Standards Act (FLSA), which states that if a union and employer decide to make “time spent in changing clothes” unpaid time, it is not to be considered for minimum wage or overtime purposes. The union in the case had asserted the donning/doffing of protective gear was not “changing clothes” for purposes of the statute. The Court disagreed.

UTAH LEGISLATIVE UPDATE: The Utah Legislature is in the early phase of its annual 45 day session. There is “talk” that a bill to increase the state minimum wage will surface, but the text of one is not yet available on the Legislature’s website. Already legislative leadership has indicated it likely will not take action on same sex marriage issues or on SB 100, which would prohibit job bias based on sexual orientation. Utah employers should take a look at HB 12 (text found here: ). This bill would require any employer who requests a credit score on an employee (for purposes other than extending credit) to also give the employee a written notice within ten days of receiving the credit score. This written notice must provide the name of the consumer reporting agency providing the credit score, the unique name associated with the algorithm used to generate the credit score, the score itself. If the bill passes, employers can be fined id="mce_marker"000 each time they fail to provide the written notice.

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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