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SHRM Newsletter: HR Law 2015 Updates - Grumpy Groundhog or a Happy Valentine
Posted on Feb. 13, 2015

This is Utah SHRM Legal-mail no. 2015-3 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).

CONTENTS: 

-  HR LAW 2015 UPDATES: GRUMPY GROUNDHOG OR A HAPPY VALENTINE?

-  THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

-  SAME SEX MARRIAGE IN THE WORKPLACE

-  PRESIDENTIAL EXECUTIVE ORDERS

-  HR PERSONALLY LIABLE FOR UNPAID WAGES?

-  LEGISLATIVE DEVELOPMENTS

-  REGULATORY DEVELOPMENTS

-  LEGAL MARIJUANA AND THE WORKPLACE

-  GRUMPY GROUNDHOG OR A HAPPY VALENTINE?

HR LAW 2015 UPDATES: GRUMPY GROUNDHOG OR A HAPPY VALENTINE? A lot happened in HR Law in 2014, and a lot more likely will happen in 2015. We had the great honor and pleasure of addressing Salt Lake SHRM this week to talk about the same. Given the timing of the speech on 2/10/15, we could conveniently ask these HR professionals if the update news made them feel like Grumpy Groundhogs (up early, forced out in the cold and required to predict the weather) or Happy Valentines (think love, chocolate, flowers and candy). There was a mixture of both depending on the issue. Read the summary below and make your own decision on your own reaction.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: The EEOC was so busy in 2014, with more to come this year. Recently-released EEOC stats shows that new claims were down with “only” about 90,000 filed last year. However, claims were up in Utah. Almost half of all claims alleged retaliation, and over a third alleged race bias. As usual, there also were lots of charges alleging age bias, disability bias and sexual harassment. The EEOC filed over 200 lawsuits last year and collected over $300 million from employers in settlement and/or verdicts. As noted in previous updates, the EEOC also is expanding its interpretation of the pregnancy discrimination law and the notion of gender discrimination. EEOC is asserting that employers must accommodate pregnant employees if they accommodate other disabled. The EEOC contends that many, if not all, instances of sexual orientation or gender identity discrimination are already banned by the existing law, which prohibits gender discrimination at work. Both theories will be tested in the courts in 2015.

SAME SEX MARRIAGE IN THE WORKPLACE: Well over half the American population now lives in states that have recognized same sex marriage by Legislative action or court order. Utah joined these ranks last Fall; Alabama last weekend. The United States Supreme Court likely will decide in 2015 whether or not same sex marriage bans are constitutional. Whatever the outcome, there now are thousands of legally-married same sex spouses. This sea change will impact employer regarding benefits, diversity and applications of various laws, including but not limited to the Family and Medical Leave Act. Employers will need to adapt to the changes in 2015.

PRESIDENTIAL EXECUTIVE ORDERS: As you have probably read in previous updates, federal contractors were given new employment rules in 2014, continuing into the current year. Most federal contractors must now prohibit discrimination based on sexual orientation or gender identity. This will impact some 28 million workers nationwide. Certain other contractors will have to pay a minimum wage of id="mce_marker"0.10 per hour starting with new 2015 contractors. If state or local governments impose higher minimum wages, they must be honored. Finally, certain other contractors must report any labor violations (safety, wage, civil rights) and if they are repeat offenders, they may lose their federal contracts.

HR PERSONALLY LIABLE FOR UNPAID WAGES? Nope! The Utah Supreme Court ruled on January 30, 2015 that managers and other agents of an employer are not personally liable for unpaid wages under the Utah Payment of Wages Act (“UPWA”). The case is Heaps v. Nuriche, LLC, 2015 UT 26, which involved two former employees who sued their employer (a now defunct start up Limited Liability Company) as well as the company’s former CEO and the members of its Board of Managers for alleged unpaid wages under the UPWA. The trial court dismissed the claims against the individuals, and the plaintiffs appealed the matter to the Utah Supreme Court. Salt Lake SHRM Legal Director Mark Tolman of Jones Waldo represented the individual managers before the Supreme Court. The plaintiffs’ liability theory was basically this: the UPWA requires that employers pay wages, the UPWA defines “employer” to include any “agent or officer” of an employer, the CEO and other managers were “agents” of the employer, therefore these “agents” are personally and strictly liable for wages. The plaintiffs had some help from the Utah Labor Commission, which apparently shared the plaintiffs’ interpretation of the UPWA and identified individual officers of a company as respondents on all wage claims. The Utah Supreme Court rejected these arguments.  The Court held that the plaintiffs’ reading of the UPWA “would lead to absurd results” because all employees of an employer are its “agents.” The Court also refused to put a gloss on the UPWA that would make only those agents who exercise control over wages personally liable. The Court explained that such a reading would require “policy-based line drawing” and “determining where to draw such a line is generally the role of the Legislature, not this court.” You can read this case for yourself here:  http://law.justia.com/cases/utah/supreme-court/2015/20130132.html                                                                                                             

LEGISLATIVE DEVELOPMENTS: The Utah Legislature is in session until March 12, 2015. The Legislature is considering several bills that will impact employers. One bill would prohibit discrimination based on “breastfeeding or medical conditions related to breastfeeding” (see: http://le.utah.gov/~2015/bills/static/HB0105.html). Another bill, SB 100 (see: http://le.utah.gov/~2015/bills/sbillint/SB0100.pdf) would prohibit job bias based on sexual orientation or gender identity. HB 73 (by Rep. Bruce Cutler) would expand the current prohibitions on a public officer from employing a relative (see: http://le.utah.gov/~2015/bills/hbillint/HB0073S01.pdf). Finally, HB 232 would allow employers to implement voluntary hiring preferences for military veterans (see: http://le.utah.gov/~2015/bills/static/HB0232.html). On the national front, the Republican Congress in Washington, on the other hand, is gridlocked with the Democratic President, so do not expect much in the way of new or revised HR law from Congress.

REGULATORY DEVELOPMENTS: In addition to the regulatory activities of the EEOC and from the Executive Orders as outlined above, there are and will be other regulatory developments. The United States Department of Labor (DOL) is busy working on new regulations interpreting the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). The new FMLA regulations would broaden the definition of “spouse” under the law to include same sex spouses married in states that allow such marriages. The new FLSA regulations will make it harder to classify employees as exempt, possibly by raising the minimum exemption salary above its current rate of $455/week. The National Labor Relations Board (NLRB) also remains very busy injecting itself into an employer’s relationship with non-union workers. The NLRB recently ruled that, except in rare cases, employees must be allowed to use their employer’s email to communicate with each other about terms and conditions of employment while seeking to work together to improve the same.

LEGAL MARIJUANA AND THE WORKPLACE: Four states (Colorado, Washington, Oregon and Alaska) now allow for the recreational use of marijuana. Many other states (e.g. Western states like those listed above as well as California, Nevada, Montana, New Mexico and Arizona). Does this mean you must tolerate marijuana use at work? No it does not. Federal law still prohibits the use and/or possession of marijuana and the ADA does not protect the use of illegal drugs. An employee may go to Denver and get a Rocky Mountain High, but you should still be able to enforce your drug prohibition and testing policies in the same manner as before.

GRUMPY GROUNDHOG OR A HAPPY VALENTINE? Whatever your personal reaction to these updates, we hope they will help keep you in compliance with the many HR law challenges from 2014 and 2015, and thus much closer to happy than grumpy. Happy Valentines Day!

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Author

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

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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