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SHRM Newsletter: Phoenix Office Listed As One Of 5 Most Fearsome In EEOC
Posted on Sep. 8, 2014

This is Utah SHRM Legal-mail no. 2014-16 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).









PHOENIX OFFICE LISTED AS ONE OF “5 MOST FEARSOME” IN EEOC: A recent news article listed the Phoenix office of the Equal Employment Opportunity Commission (EEOC) as one of the most aggressive in the Country. The EEOC Phoenix District Office has jurisdiction over the states of Arizona, Colorado, Utah and Wyoming; and certain counties within New Mexico. This office made the list because of its aggressive pursuit of lawsuits in “traditional” areas of discrimination (e.g. sexual harassment against women) and for filing a lawsuit challenging settlement agreements that allegedly constrain the rights of employees to file EEOC charges or participate in investigations. The other EEOC offices making the list were Chicago (for pushing hard on a number of fronts and filing a lot of lawsuits), Philadelphia (for its large number of lawsuits and activity regarding employee credit checks), New York (for pursuit of pregnancy and sex bias issues) and Houston (for a focus on same sex harassment).

MEDIATION CAN BE USEFUL TOOL IN RESOLVING EMPLOYMENT DISPUTES: Some employment disputes never become charges or lawsuit but others do, and based on the involved circumstances, the employer simply must defend itself. However, many employment claims can be successfully resolved with mediation. Mediation is a process in which parties to a dispute voluntarily meet with each other and a neutral third party to try to find common ground for resolving the conflict. Sometimes, the resolution of the dispute may include money, but sometimes other things can resolve the problem. Both state and federal agencies commonly use mediation today to try to bring early and cost-effective resolution to an employment claim. A recent article has highlighted 5 tips for lawyers to use in helping make a mediation successful for clients. First, the lawyer should prepare the client mentally, i.e. on how the process works (notably that sometimes the best settlement is something that makes both sides unhappy). Second, flexible open minds do better in mediation than inflexible closed minds. Third, do not rush the mediation because time has a tendency to bring parties together and facilitate resolution. Third, “lay down the arms” because collaboration rather than confrontation works best in a mediation context. Finally, plan your approach to the mediation and be forthcoming, because the more information that is clearly shared, the better the chances of settlement at the mediation. Good tips!

PROTECT THE ATTORNEY-CLIENT PRIVILEGE IN EMPLOYMENT MATTERS: A recent decision from an Indiana federal court demonstrates how employers must be careful to preserve the attorney/client privilege—when they want to do so—when  dealing with employment matters. The case involved an employer representative who learned of possible employee misconduct and prepared a detailed memo about the same. The employer copied its in-house counsel on the memo. When litigation arose later, the employer claimed privilege and refused to produce the memo to opposing counsel. The court got involved and ruled that merely copying the company lawyer on the memo did not make it privileged. Instead, the court said the privilege would only apply if it was clear from the involved circumstances that the memo was intended to confidentially seek advice from legal counsel. Because the memo at issue merely recited the facts of an event and gave no indication of seeking legal advice, the court ordered it produced. An employer should keep in mind this ruling, and the rules it outlines, when writing documents that it wants protected by the attorney-client privilege.

TOP TEN WAYS TO GET SUED: HR Daily Advisor recently published the top ten ways it believes an employer can behave in order to create a lawsuit. The list is pretty good. Here it is: “(1) Failure to Train Management; (2) Failure to Document; (3) Failure to Manage in Person; (4) Failure to Complete Performance Evaluations; (5) Failure to Address Work Conflicts; (6) Failure to Pay Correctly; (7) Failure to Apply Policies Consistently; (8) Failure to Follow Up After Complaints; (9) Failure to Administer Leave Properly; and (10) Failure to Treat Employees with Dignity and Respect.” Do you have any of these bad habits? Resolve to break them today!

RECENT EMPLOYMENT LAWSUITS AND VERDICTS: The news also contains some interesting information about significant recent employment verdicts or settlements. For example, a grocery chain recently agreed to pay $6.5 million to settle a dispute over alleged discriminatory wage payments. The claim alleged that clerks at low end stores with predominantly Hispanic workers were paid less than clerks (doing the same basic job) at high-end stores with predominantly white employees. A federal appeals court has let stand a $6 million verdict against a food company for not paying employees for time required to don and doff, i.e. put on and take off, protective gear. This latter pay claim was brought under the Fair Labor Standards Act (FLSA).

BE CAREFUL WHEN REQUIRING EMPLOYEES TO GET COUNSELING: A recent lawsuit illustrates the risks involved when an employer, however well-intentioned, mandates that one of its employees get mental health counseling. The case involved a female employee who fell in love with a male married co-worker. After the male decided to stay with his wife, the female co-worker’s life turned into an admitted “mess.” Her boss, learning of her emotional turmoils (which occurred mostly away from work) told her she had to get counseling to stay on the job. She agreed she was a mess but could not afford the counseling, so she quit.  And she sued, claiming her employer violated her rights under the Americans with Disabilities Act (ADA) were violated. A federal appeals court recently concluded her claims should go to a jury trial. Why? The court concluded there was a dispute about whether the mandated counseling was job related and consistent with the employer’s business necessity given that most of the employee’s emotional turmoil occurred after working hours and she had only isolated work-time events. The court also concluded that the ADA protected the employee from the employer regarding (or perceiving) her as disabled (whether she was disabled or not).

CROSSROADS CONFERENCE THIS MONTH! Get more helpful information on HR Law and other issues at the annual Utah Crossroads Conference set for September 16–17, 2014 at the Utah Valley Convention Center.  Find out more here:  

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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