Employment Law Update 2017-7
Posted on Jun. 5, 2017

This is Legal-mail no. 2017-7 prepared for interested HR professionals trying to deal with the complex American employment laws.








MISTAKES MANAGERS MAKE: Do managers make mistakes on employment issues? Most certainly and without a doubt, and this is why so many HR professionals and employment lawyers have job security. Can these mistakes be limited or their impact reduced? Most certainly and without a doubt, and this is what good HR professionals and employment lawyers try to help businesses do on a daily basis. Former Utah (and now Portland, Oregon) employment lawyer and management consultant Jathan Janove has collected and discussed a number of these types of mistakes in an article published in the most recent edition of SHRM’s HR Magazine. Check it out, along with some words of wisdom from Utah lawyers (I am honored to be one of them) here: http://www.hrmagazine-digital.com/hrmagazine/junejuly_2017?pg=55#pg55.

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), has barely passed in the House and now has moved over to the Senate. Word from the Senate is that the body has put aside the AHCA and is starting over on its own bill. This is being done behind closed doors, so not a lot is known yet about what the bill might include. 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!

FEDERAL PAID PARENTAL LEAVE IN TRUMP BUDGET: The new federal budget proposed by President Donald Trump includes provisions granting parents up to six weeks of paid leave after the adoption or birth of a child. The budget proposal would requires states that do not already provide paid leave to do so through the existing state unemployment insurance system, which of course is funded primarily with payments by employers. An article I read recently indicated the proposal would cost $25 billion over ten years. A common attribute of presidential budget documents is that they are dead on arrival, because Congress has the constitutional power to set the budget. Paid family leave has not been a benefit commonly advocated by the Republicans who control Congress, so it will be very interesting to see what happens to the President’s proposal.


OSHA DELAYS FEDERAL E-RECORDKEEPING RULE DEADLINE: The United States Department of Labor Occupational Health and Safety Administration (OSHA) has delayed the deadline, originally set for July 1, 2017, for employer injury and illness reporting. More information is available at: https://www.osha.gov/recordkeeping/index.html.

COURT SAYS PART-TIME WORK IS NOT A REQUIRED ACCOMMODATION: A federal appeals court recently ruled that, under the facts in the case under consideration, an employer was not required to provide part-time work as an accommodation under the Americans With Disabilities Act (ADA). The case involved an employee who had a full time job requiring significant hours and regular attendance. After the employee became sick, the employer accommodated him with leave and hours reduced on a temporary basis. The employee got sick again and needed reduced hours on a longer basis with no defined duration. The employer eventually terminated his employment and a lawsuit resulted. Relying on the facts that the job description and witness testimony said full-time attendance was an essential function of the job, the court ruled in favor of the employer and dismissed the claim.

FAILURE TO USE PROGRESSIVE DISCIPLINE LETS LAWSUIT CONTINUE: A California case has allowed an employment lawsuit to continue because an employer that regularly used progressive discipline did not do so regarding the plaintiff in the lawsuit. There were three primary problems for the employer in this case. First, its documents did not clearly state that the use or nonuse of progressive discipline is left solely to the discretion of the employer. What does your policy and handbook language say? Second, several supervisors testified that no one at the company had ever been fired without several steps of progressive discipline first. Third, the case was in California…’nuf said.

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