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SHRM Newsletter: Employment Issues Addressed in Recent Elections
Posted on Nov. 12, 2014

This is Utah SHRM Legal-mail no. 2014-20 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).







EMPLOYMENT ISSUES ADDRESSED IN RECENT ELECTIONS: Voters in the 2014 elections returned US Senate control and several governorships over to the Republicans. However, interestingly enough, voters in many of the same states approved several policy initiatives more closely identified with the Democrats. Voters in Arkansas, Nebraska, South Dakota, Alaska and Oakland (California) voted to increase the state minimum wage. Alaska, Oregon and Washington DC voters approved various measures allowing the possession and use of small amounts of recreational marijuana. Massachusetts approved a measure requiring employers to provide employees with paid sick leave.

EEOC ARGUES CURRENT LAW BANS SEXUAL ORIENTATION BIAS: In a brief filed in a case pending in a federal appeals court, the Equal Employment Opportunity Commission (EEOC) has argued that current law already prohibits job bias based on sexual orientation. The brief reflects the EEOC’s new position (first stated several months ago) that intentional discrimination based on an individual’s sexual orientation is inherently gender-based because it “can be proved to be grounded in sex-based norms, preferences, expectations or stereotypes.” Although a number of courts have disagreed with this position in the past, employers must note that if they are defending sexual orientation administrative charges before the EEOC, that agency will use its interpretation rather than that of the courts.

SAME SEX MARRIAGE BAN UPHELD IN CERTAIN STATES: A federal appeals court panel recently issued a ruling upholding state same sex bans in several Midwestern states. The split ruling from the Sixth Circuit Court of Appeals reversed lower court rulings striking gay marriage bans in Michigan, Ohio, Kentucky and Tennessee. Because the decision conflicts with the decisions of four other federal appeals courts, this ruling increases the chances that the United States Supreme Court will have to take a same sex marriage case and resolve the issue on a national basis. The Court declined to take several cases a few weeks ago. The latest ruling does not affect same sex marriage in Utah.

RECENT SETTLEMENTS AND VERDICTS: A national television network has agreed to pay $6.4 million dollars to settle claims that the network should have paid its unpaid interns. A national discount retailer has agreed to pay $4 million to resolve a lawsuit claiming it violated the Fair Credit Reporting Act (FCRA) when it did background checks on applicants and took adverse action without complying with FCRA’s requirements. A large grocery chain has agreed to pay $6.5 million to end a lawsuit claiming it discriminated against Hispanics by paying them less than white workers. A health care company has been hit with a half million dollar adverse jury verdict for claims it allowed its employees to be subjected to sexual harassment and then fired them in retaliation for objecting to the behavior.

NLRB DISLIKES EMPLOYER DISLIKES OF EMPLOYEE FACEBOOK LIKES: Now, that is an awesome headline isn’t it? It also happens to be true. The National Labor Relations Board (NLRB) recently issued a decision concluding that employee “likes” and comments on Facebook posts can be protected by the National Labor Relations Act (NLRA), which gives employees (union or non-union) the right to act together to seek to improve the terms and conditions of their employment. The case involved an employee who complained on Facebook about how her employer had handled her employee tax paperwork. Several co-workers “liked” the posting or agreed by posting their own comments. The employer fired the employee who made the original post and one of the Likers. The employer claimed the actions were not protected by the NLRA because the comments were defamatory and the “like” adopted the defamation. The NLRB rejected the defamation argument and found that the comments were protected. Once again, the NLRB has served notice that it will go after employers who punish employees who complain to each other about working conditions, even when that is done via social media. Employers should be very careful and seek legal counsel before administering discharge or discipline in such circumstances.

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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