Employment Law Update 2017-6
Posted on Apr. 18, 2017

This is Legal-mail no. 2017-6 prepared for interested HR professionals trying to deal with the complex American employment laws.







FEDERAL APPEALS COURT SAYS SEXUAL ORIENTATION BIAS IS ILLEGAL: A federal appeals court (covering Wisconsin, Illinois and Indiana) has ruled, for the first time, that existing law prohibiting discrimination based on sex or gender also prohibits job discrimination based on sexual orientation. The Equal Employment Opportunity Commission (EEOC) started to assert this position beginning in 2015. All the federal appeals courts have, in the past, reached the opposition conclusion, but one decided to review the issue again and, as a result, just changed its mind. This is an issue that likely will eventually be resolved by the United States Supreme Court. A number of state laws, including in Utah, already prohibit discrimination based on sexual orientation.

EMPLOYMENT LAW IN THE TRUMP ERA: Although the picture is still very cloudy, some details are starting to emerge of what employers can expect from the federal government during the era of President Donald Trump. One of these details probably is deregulation. Congress and the new president have stricken, or are seeking to strike, some Obama era employment regulations. In March, Congress withdrew the regulations requiring federal contractor employers to report their violation of federal labor law. The House has done the same thing regarding certain Occupation Safety and Health Administration (OSHA) recordkeeping rules. An effort is underway to do the same thing to the EEOC’s proposed new EEO-1 form, which is due to take effect in March of 2018. The new acting chair of the EEOC voted against the required use of the form. Perhaps the most obvious element of this trend is the new Trump budget, which has proposed substantial cuts (21%) for the United States Department of Labor (DOL). Congress has not yet confirmed President Trump’s nomination for Secretary of Labor.

NEW UTAH STATUTE IMPACTS WAGE PAYMENT CLAIMS: During the closing days of its 2017 session, the Utah Legislature passed a new law that impacts wage payment claims in Utah. The new law, set to take effect in May of 2017, changes the definition of employer so that it is consistent with the definition in the federal Fair Labor Standards Act (FLSA), which allows for interpretations that individual officers and directors of a company should be held liable for wage payment claims. This effectively reverses a Utah Supreme Court decision. The new law also expressly allows for private party lawsuits based on wage claims, and enhances the available damages to include an amount equal to 2.5% of the unpaid wages owed for up to twenty days. Finally, the new law requires that wage claims of id="mce_marker"0,000 or less must first be filed with the Utah Labor Commission for possible administrative review and resolution. You can read a copy of the full bill here: https://le.utah.gov/~2017/bills/static/HB0238.html.

REPEAL? REPLACE? WHO KNOWS? Congressional Republicans and the new Trump administration continue to struggle in their efforts to repeal and replace the Affordable Care Act (ACA). Their latest effort, called the American Health Care Act (AHCA), did not reach a floor vote in the House because it did not have sufficient votes to pass. The governing GOP seems right now to lack consensus on how to approach these issues. Until they reach agreement and pass a new law, the ACA remains the law of the land. Stay tuned for developments!

REMINDER ON THE IMPORTANCE OF DOCUMENTATION: As a timely reminder on the importance of good documentation of employment matters, here is an outline of what an ideal termination based on poor performance should look like:


HIRE DATE- Manager/supervisor gives employee a written job description giving fair notice of his/her job duties and performance expectations and goals.

REGULAR INTERVALS AFTER HIRING- Supervisor checks in with employee to verify adequate performance and good job fit.  Supervisor provides continuing and regular oversight, coaching etc.

ANNUAL PERFORMANCE REVIEW(S)-   Conduct a truthful and accurate review of employee’s performance during full relevant period.  Note if problems exist and include discussion of relevant job actions (e.g. warnings or discipline, successes, etc.).  Poor performance should impact evaluation score.

FIRST SIGN OF SERIOUS PROBLEMS- Apart from regular coaching, at this point there should be a discussion with the employee.  Document the discussion with a note to file or email.  Depending on seriousness, escalate to HR and perhaps discipline.  Early HR involvement can hasten a resolution and minimize risks.

ADDITIONAL PROBLEMS- Further discussions and coaching, HR involvement and perhaps discipline, maybe written warnings depending on how serious the problem.  Repeat clear objectives for improvement and means to measure the same.

ONGOING PROBLEMS- Escalate discipline (final warning notice).  Document nature of problem, how it can be fixed, clear timetable for doing so and consequences of failure to do so (such as discharge).  Make sure you consider employee’s side of story but do not engage in “debates” when employee disagrees.

TRIGGER FOR DISCHARGE- There should be some event that moves the situation towards termination (e.g., expiration of final warning renew time period without needed improvement, additional major mistake, misconduct, etc.).  Beware of subjective conclusions (e.g., “He just doesn’t fit in!”) and instead identify the underlying objective facts leading to any particular conclusions.


DISCHARGE- Discharge should flow logically from the documentation of expectations given and problems noted.  Here is the main goal of the whole process:  anyone who might try to second guess you should conclude there was clear explanation of expectations, notice of problems and a documented chance to improve before discharge.  HR involvement should ensure company-wide consistency (i.e. that various departments use the same type of discipline for the same types of offenses) and that the written record supports the termination decision.

DISCHARGE LETTER OR MEMO TO FILE- Document what happened and why, in clear terms but with as few words as possible.  Remember this will be “Exhibit A” in any post-termination dispute, so do it properly.

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