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SHRM Newsletter: Utah Same Sex Appeal Case Argued at Appeals Court
Posted on Apr. 16, 2014

This is Utah SHRM Legal-mail no. 2014-7 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 APPEAL CASE ARGUED AT APPEALS COURT: The Tenth Circuit federal Court of Appeals in Denver recently heard arguments about the Utah same sex marriage case. The court has agreed to rule on an expedited basis on whether to sustain the Utah federal trial court ruling from last year that struck down Utah’s ban on same sex marriage. There is also litigation pending on what recognition can/must be given to those same sex marriages that occurred in Utah after the trial court’s ruling but before the United States Supreme Court stayed it. All such cases will be relevant for employers, so stay tuned for developments. Here are three links to some more detailed news reports regarding the latest case developments: (1) (2) (3)

IRS ISSUES SAME SEX SPOUSE GUIDANCE: The IRS has issued Notice 2014-19 providing guidance to retirement plan administrators relating to the retroactive application of the U.S. Supreme Court’s decision in the Windsor case which recognized same-sex marriages under federal law. The IRS has determined that retirement plans are not required to recognize same-sex spouses of participants prior to June 26, 2013 (i.e., the date that Windsor was decided). During the period between June 26, 2013 and September 16, 2013 (i.e., the date the IRS first issued guidance regarding same-sex spouses), a retirement plan is permitted to determine whether a same-sex spouse is a spouse for purposes of the plan by reference to either (a) the law of the state in which the couple reside or (b) the law in the state in which the marriage was performed (i.e., celebrated). Beginning September 16, 2013, however, the retirement plan must look to the law of the jurisdiction in which the marriage was celebrated regardless of where the couple resides. If the retirement plan’s definition of spouse is inconsistent with the IRS guidelines, the plan will need to be amended.  The deadline for amending most retirement plans will be December 15, 2014. (Written by Jones Waldo tax and employment benefits partner Bruce Babcock.)

EMPLOYMENT DISCRIMINATION LAW TURNS FIFTY: The federal law passed by Congress that precludes discrimination based on race, sex and many other protected classes turned 50 last week. Signed into law by President Lyndon Johnson, Title VII of the Civil Rights Act of 1964 still plays a prominent role in many American workplaces today. Over the years, new protected classifications have been added to these sets of laws and the courts have expanded the interpretation of the law to preclude harassment as well as discrimination. Although charges brought before the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the law, have been at all time highs for the last few years, a recent study indicated that the number of discrimination lawsuits filed in federal court has dipped below 1,000 per month for the first time since 2006.

SENATE REJECTS PAYCHECK FAIRNESS ACT: The United States Senate has declined to debate/consider the Paycheck Fairness Act (S. 2199). The proposed law had enough votes to pass the Senate but could not obtain the 60 votes needed to begin debate on the bill. Even if the bill had passed the Senate, it likely would have failed in the Republican-controlled House of Representatives. Various commentators have characterized the Paycheck Fairness Act as making it virtually impossible for an employer to justify different pay rates for persons in the same job, even if such differences are based on bona fide things like training, experience, education and the market. These types of factors can now be asserted, if done in good faith, as “factors other than sex” that justify disparate pay under the federal Equal Pay Act. The proposed Paycheck Fairness Act also would enhance the penalties for equal pay violations, allowing the recovery of compensatory and punitive damages. Anticipating the bill would stall in the Senate, last week President Obama signed two executive orders that impact the equal pay debate. One prohibits employers from retaliating against employees who discuss their pay and another requires employers to report pay data with reference to gender and race included.

NLRB TARGETS “NO GOSSIP” POLICIES AT WORK: Recent news reports indicate that the National Labor Relations Board (NLRB) is frowning on policies that prohibit employees from gossiping at work. An NLRB administrative law judge (ALJ) recently issued a decision finding that an employer’s no-gossip policy violated the rights of employees (under the National Labor Relations Act) to act in concert and talk to each other about possibly changing terms and conditions of employment. The involved employee had filed workplace charges and complaints and was told that she could not discuss work issues with anyone except her supervisor or HR. About the same time, the company promulgated a no-gossip policy saying employees could not gossip about the company, an employee, or a customer. This prohibition included: talking about someone’s personal life who was not present, about professional lives without a supervisor present; making negative, untrue, or disparaging comments about other people; and creating, sharing, or repeating rumors. Later, the employee discussed with a co-worker some changes in management, job security. They also talked about job opportunities elsewhere. The company fired the employee for violating the no-gossip policy. The NLRB ALJ found that this conduct was illegal. The ALJ concluded, “A thorough reading of this vague, overly-broad policy reveals that it narrowly prohibits virtually all communications about anyone, including the company or its managers. In fact, read literally, this rule would preclude both negative and positive comments about a person’s personal or professional life unless that person and/or his/her supervisor are present. Such an overly broad, vague rule or policy on its face chills the exercise of [protected concerted] activity and violates [the NLRA].” As a result of this ruling, there is a new rumor going around employer can get into trouble if you fire or discipline employees from talking to each other, especially about work.

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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