Employment Law Update 2017-3
Posted on Feb. 14, 2017

This is Legal-mail no. 2017-3 prepared for interested HR professionals trying to deal with the complex American employment laws.








INTRODUCTION- 2017 LAWLAWLAND AWARDS:  My fellow employment lawyers and Jones Waldo colleagues Mark Tolman and Jesse Oakeson joined me recently in presenting an employment law update to members of the Salt Lake chapter of the Society for Human Resource Management (SHRM). Legal updates sometimes can be a bit boring, and it is movie Oscar season, so our update morphed into a presentation of the 2017 LawLawLand awards. Recap, part one, is below. Watch for recap, part two, in the next update.

BEST* HR REGULATORY DEVELOPMENT IN A NON-EEOC ROLE:  (*Best means “most interesting” or “most significant” but not necessarily “highest quality” or “favorite.”) Here are the nominees. First, the new overtime exemption minimum salary threshold regulations that were to take effect on 12/1/16, but never did because of a court lawsuit, and may never occur because of a change in presidential administrations. Second, on 12/1/16, a new federal OSHA rule went into effect that requires employers to implement “reasonable” reporting procedures for workplace accidents and injuries and prohibits blanket drug testing after accidents and retaliation for reporting. Third, the NLRB has actively scrutinized workplace conduct rules in non-union settings to ensure that employee rights to engage in concerted activity (i.e., “Section 7 rights”) are not restricted.  As a result, rules that prohibit “disrespectful conduct” are seen as prohibiting employees from complaining about their supervisors and working conditions. Fourth, antitrust and HR laws rarely overlap, yet in October of 2016 the US Department of Justice issued a guidance for HR professionals. It says competing employers cannot limit or fix terms of employment for potential hires. Examples:  Hospital Association setting nursing rates; no-poaching agreements; sharing non-public wage information. And the Winner is: the new FLSA rules that never were. Think of them in light of this famous poem:  “As I was going up the stair, I met a man who wasn't there! He wasn't there again today, I wish, I wish he'd stay away!”

BEST HANDBOOK CHANGES FOR 2017:  Here are the nominees. First, the Utah Antidiscrimination Act was amended in 2016 to require employers to post a notice, or include one in a handbook, about requesting an accommodation related to pregnancy, childbirth, breastfeeding, or related conditions. The notice may state that the company may require a medical certification justifying the need for such an accommodation.  However, no medical certification may be required for a request for more frequent restroom, food, or water breaks. Second, the Utah Antidiscrimination Act was amended in 2015 to include protections for sexual orientation and gender identity discrimination.  If you have not already updated your equal employment opportunity policy to include these protected classes, you should do so now. Better late than never! Third, the federal Defend Trade Secrets Act signed into law on May 11, 2016 provides federal protections for trade secrets. The DTSA includes a penalty of double damages and allows for the recovery of attorney fees. To obtain the penalty and award of attorney fees, an employer must demonstrate that they have included a notice in a confidentiality agreement about protections for whistleblowers. Including a whistleblower notice in a handbook is a good idea too. Fourth, OSHA adopted new rules in 2016 that instruct employers to avoid policies that require immediate reporting of workplace injuries and automatic drug testing whenever a workplace injury occurs.  Such rigid policies should be replaced with a reasonable standard. And fifth, the NLRB has continued to issue decisions that are critical of broadly worded workplace conduct rules. Your workplace conduct rules should be reviewed to make clear that Section 7 rights (i.e., the right for employees to complain together about working conditions) are preserved. And the Winner is: pregnancy accommodation notice to comply with the UADA. There is some local bias here, but the UADA now specifically requires employers to provide a notice about pregnancy accommodations. If you are faced with responding to a claim of failure to accommodate a pregnant worker before the UALD, do you think your handbook language will come up? We do. If you would like to see some sample handbook policy language about these matters, feel free to email Mark Tolman at mtolman@joneswaldo.com.

BEST NEW GOVERNMENT FORM:  Here are the nominees. First, as of January 22, 2017, if you are using an I-9 form with a 2016 expiration date, your form has expired.  The new I-9 form is available online (https://www.uscis.gov/i-9) and should be utilized going forward. Among other things, the new form is intended to simplify the process and eliminate errors, but in typical government fashion, the instructions for the form have increased in length from six pages to 15 pages. And while the form contains some automated components, employers are still required to physically examine each employee document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible. Second, is the new EEO-1 reporting form. Currently, federal contactors with 50 or more employees and private employers with 100 or more employees are obligated to complete this annual report by providing demographic information regarding their employees. The revised form now also asks for data about employees' pay as reflected in box 1 of the employees’ W-2 forms. The deadline for compliance with this regulation is March 31, 2018, which gives employers a reasonable amount of time to prepare for new reporting requirements. Employers might consider internal compensation audits (with the help of counsel) in the interim to identify any potentially unlawful pay disparities and remedy such disparities in advance of the reporting deadline. Third, a new OSHA regulation, which took effect on January 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms.  Information regarding this new rule is available on OSHA’s website (https://www.osha.gov/recordkeeping/finalrule/index.html). And the winner is… the I-9.  This form is utilized on a regular basis by employers and no one should be caught using an outdated form. In recent years, employers have been hit with heavy fines for I-9 violations. For example, a Minnesota employer was hit with a $227,000 fine for a series of I-9 violations in 2015. Don’t be caught using an outdated form!

BEST HR LEGISLATIVE DEVELOPMENT: Here are nominees. First, in May of 2016, the Defend Trade Secrets Act (DTSA) was signed into law, bringing trade secret misappropriation under federal protection. DTSA provides whistleblower immunity to employees who provide trade secrets to the government or an attorney for the purpose of reporting a violation of law. Employers are required to provide notice of this immunity in any contract that governs the use of a trade secret or other confidential information.  Double damages and attorney’s fees available under the statute may be forfeited without this notice. Second, as you have read in past updates, the Utah Legislature is busy considering new HR laws regarding noncompetes, the FMLA, minimum wage and in other areas. Third, the new President and Congress are considering what to do about the Affordable Care Act. Repeal? Replace? Repair? Who knows? The GOP does not appear to have a viable replacement or consensus on a replacement, and President Trump and Congress seem to be looking at different things. This may not happen at all or right away, but if it does, it is a big deal. Finally, there is immigration reform.  President Trump was very loud on this issue during the 2016 presidential campaign. He has issued initial executive orders but the courts have stopped them. Will Congress pass reform? There is a divided Congress and 60 Senate votes are needed to pass substantive legislation.  No reform legislation seems the most likely result. And the winner is…the Affordable Care Act. It may not happen, but if it does, it will be very impactful as a legislative development.

MORE AWARDS IN THE NEXT UPDATE: Watch for the last four 2017 LawLawLand awards.

Written by: Employment Attorney Michael Patrick O'Brien

Email: mobrien@joneswaldo.com

Phone: 801-534-7315

Website: www.joneswaldo.com

Follow me on Twitter @mobrienutah


Legal-mail is a legal and legislative update service sent out about twice a month to interested HR professionals. As a courtesy, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

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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