Employment Law Update 2017-5
Posted on Mar. 14, 2017

This is Legal-mail no. 2017-5 prepared for interested HR professionals trying to deal with the complex American employment laws.







UTAH LEGISLATIVE UPDATE- WHAT WAS DONE: The Utah Legislature met in its annual session from January 23, 2017 to March 9, 2017. The Legislature did approve three bills that could impact employers. First, it enacted HB 156, found at: https://le.utah.gov/~2017/bills/static/HB0156.html. This bill provides that a public employer may not require an employment applicant to disclose a past criminal conviction before an initial interview for employment. The legislature also approved SB 120, which modifies the worker’s compensation calculation of death benefits paid to one or more dependents of a deceased employee. The full bill is available here: https://le.utah.gov/~2017/bills/static/SB0120.html. Finally, the Legislature also passed HB 238 (available here: https://le.utah.gov/~2017/bills/static/HB0238.html), which modifies the Utah wage payment statute. The bill allows wage claims against agents of employers who are acting as the employer, requires claims under id="mce_marker"0,000 to be brought first to the Labor Commission, and increases the penalties that can be recovered for unpaid wage claims. If signed by Governor Gary Herbert, each of these bills will become law later in 2017.

UTAH LEGISLATIVE UPDATE- WHAT WAS NOT DONE: During the six or so weeks of the session, the Legislature considered, but did not approve, a number of bills related to employment law. The Legislature did not pass a new bill that would limit an employer’s use of noncompete agreements. The legislators did not approve a bill that would gradually raise the state minimum wage and create what is known as a living wage. The Legislature did not vote to expand the Family and Medical Leave Act to apply to smaller companies or to expand the remedies available under the Utah Antidiscrimination Act. Finally, the Legislature did not pass a bill that would have instructed the Department of Workforce Services to conduct a study on whether there is a difference in pay between men and women in the state. The Legislature will convene again in January of 2018.

“BLACKLISTING” RULE FOR CONTRACTORS MAY BE REPEALED: The United States Senate, by a 49-48 margin, has voted to repeal an executive order from the Obama administration that required federal contractors to disclose when they had been found to have violated certain employment laws. The U.S. House of Representatives approved the same repeal bill earlier this year. The rule, commonly called the “blacklisting” rule because of concerns certain businesses could be barred from federal contracts, was supposed to take effect in 2016 but had been blocked by a federal court injunction. President Trump now must decide whether he will go along with the Congressional repeal. If he does, the rule will have no effect.

FEDERAL LEGISLATIVE UPDATE: Unless you live in a cave, you already know that the Republicans in Congress have proposed a replacement for the Affordable Care Act. A good summary of the proposal can be found here: https://www.shrm.org/hr-today/news/hr-news/pages/legislative-update-aca-repeal-replace-advances-through-house.aspx. Congress also is considering a bill that would give employers greater leeway in conducting genetic testing in employee wellness settings. Here is a link to a good article with some details: http://www.mercurynews.com/2017/03/11/employees-who-decline-genetic-testing-could-face-penalties-under-proposed-bill/?utm_source=Facebook&utm_medium=Social&utm_campaign=Echobox#link_time=1489319240.

IS IT COVERED BY EXISTING LAW OR NOT? The federal courts continue to wrestle with the question of whether sexual orientation is covered by existing law prohibiting discrimination based on sex/gender. The Equal Employment Opportunity Commission (EEOC) has concluded that it is covered in various situations. Some courts have agreed, yet others have disagreed that anti-gay workplace bias is prohibited by federal law. Moreover, the most recent court to reach this conclusion also held that an employee could claim he/she was discriminated against for failing to conform to gender stereotypes. This continues to be an evolving area of law about which you should consult legal counsel. And remember, even if sexual orientation is not a protected class under federal law, it is under many state laws, including Utah.

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