Employment Law Update 2017-4
Posted on Feb. 16, 2017

This is Legal-mail no. 2017-4 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, was in the last update.  Recap, part two, is below.

MOST ANTICIPATED (OR DREADED) EMPLOYMENT LAW CHANGES UNDER THE TRUMP ADMINISTRATION: (*Best means “most interesting” or “most significant” but not necessarily “highest quality” or “favorite.”) The nominees are listed here. First, appointments. President Trump eventually will appoint all the leaders of the federal executive government, including the cabinet (e.g. Secretary of Labor, Secretary of Health and Human Services) and majorities of members of independent agencies (such as the NLRB, the EEOC and the SEC). He also likely will appoint up to a third of the federal judges if he serves two terms. Second, executive orders. Both President Obama and President Trump are making extensive use of executive orders, notably on immigration issues. The Trump travel order hit a roadblock with the courts, but he looks to keep using the tool, and perhaps to keep some Obama-era orders, such as LGBT protections for federal contractors. Third, there is the Affordable Care Act (again). Repeal? Replace? Repair? Who knows? And the winner is….appointments! President Trump’s greatest impact on HR law will occur in his appointments to the cabinet, courts and federal agencies.

BEST EEOC OR UALD DEVELOPMENT: Here are the nominees: First, the EEOC has issued its FY 2016 enforcement data that shows trends and statistics regarding discrimination charges. The EEOC charge statistics are available on the EEOC website, which includes a state-by-state breakdown. The EEOC saw a slight increase in the number of discrimination charges filed across the nation from the prior year, with a total of 91,503 charges filed. By contrast, charges filed in Utah continued on a downward trend, with a total of just 259 charges filed (compared with 317 charges two years ago). Second, the Utah Legislature performed an audit of the UALD, which includes some sharp criticism of the UALD’s investigative processes. Importantly, the UALD audit revealed that out of 250 discrimination determinations, the UALD found that discrimination may have occurred in just 1 case! Third, the EEOC has issued a Final Rule on Employer Wellness Programs that takes into consideration the overlap of the ADA, GINA, ACA, and HIPAA laws. The Final Rule provides guidance on how to make such programs voluntary and the extent to which financial incentives may be provided.  And fourth, the EEOC has also published a guidance on how employers may avoid retaliation. Retaliation claims have been the most frequently-filed claim filed with the EEOC every year since 2009. The EEOC provides instruction on what may constitute retaliation and the specific actions an employer may take to avoid these claims. And the Winner is: the Legislative audit of the UALD. We can expect that the UALD will increase the rate at which it finds discrimination. Employers should receive advice from a qualified HR and/or legal counsel before submitting a response to a discrimination charge with UALD.  

BEST COURT DECISION/LEGAL OPINION: The nominees for Best Court Decision were Equal Employment Opportunity Commission v. Costco Wholesale Corp., case number 1:14-cv-06553; Bagwell v. Morgan County Commission, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017); Hively v. Ivy Technical Community College, Southbend, 830 F.3d 698, 699 (7th Cir. 2016). These cases were selected based on their contribution to the understanding of sound HR and employment law principles. In the Costco matter, a jury found Costco liable for $250,000 in damages to its former employee on a hostile work environment claim arising from a dispute the employee had with a customer (as opposed to a co-worker as is typically the case).  The takeaways from the case included (1) treating customer harassment like co-worker harassment (i.e. investigate, remedy the issue, and document the investigation); (2) document efforts to remedy harassment and follow up with the employee to make sure the efforts have worked; and (3) address customer harassment early on and support employees wherever possible. In the Bagwell matter, an employer prevailed on an ADA claim by successfully establishing that the employee could not perform the essential functions of the position at issue (with or without an accommodation) by referencing a well-crafted and accurate job description. The takeaway was that HR professionals should be diligent in drafting and revising accurate and detailed job descriptions, which include both general and specific job duties. Hively involved the 7th Circuit Court of Appeals consideration of whether Title VII protects employees from sexual orientation discrimination. The 7th Circuit determined that it did not, but the opinion made it clear that differentiating between gender norm discrimination (which is protected) and sexual orientation discrimination (which is not protected) is difficult. Thus, the takeaway for employers is simply to avoid sexual orientation discrimination, which is prohibited by Utah law and at least arguably prohibited by federal law. The winner… was the Costco case.

The LawLaw Land awards presenters were also pleased to award a lifetime achievement award to the infamous Lowe v. Atlas case, which was dubbed (by the judge in the case): the Case of the Devious Defecator.  The case is unique in its appeal to lawyers and non-lawyers alike, but stands for the very pro-lawyer maxim; namely, “if in doubt, call your lawyer.” A good summary of the case is available here: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/30/test-for-devious-defecator-was-unlawful-judge-rules/?tid=a_inl&utm_term=.ffbedb4948f9. Sadly, the case passed from this world in 2016, when Atlas opted to dismiss its appeal and move on from what undoubtedly has been a crappy situation.


BEST NEW YEAR’S RESOLUTION FOR HR PROFESSIONALS IN 2017: Here are the nominees: Audit; Train; Document; Get counsel when appropriate; and Advocate. These are critical business management tools, but also very valuable tools to help protect a company from lawsuits. You see them all discussed frequently in these updates. And the winner is… Surprise – all of the above! A good HR professional should be doing all these things in 2017.

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