Employment Law Update – Legal-mail no. 2017-17
Posted on Dec. 18, 2017

This is Legal-mail no. 2017-17 prepared for interested HR professionals trying to deal with the complex American employment laws.



A MORE AGGRESSIVE UALD IN 2018? The Utah state agency that investigates claims of workplace discrimination, harassment and retaliation may prove to be more of a challenge for employers in 2018. Why? The Utah Antidiscrimination and Labor Division (UALD) recently was audited by the state, which raised questions about the low percentage of rulings it made in favor of employees. The UALD also has been the subject of recent negative news reports on the same issue, see http://www.sltrib.com/news/politics/2017/12/17/it-doesnt-matter-what-you-say-in-utah-the-agency-that-investigates-job-discrimination-is-so-mistrusted-that-some-lawyers-go-to-the-feds-instead/. As a result, employers can reasonably expect more aggressive investigations by the UALD, and perhaps even more efforts to rule in favor of employees, as the UALD attempts to respond to the negative attention it has drawn.


REASONS HARASSMENT TRAINING DOES NOT WORK:  One legal commentator recently offered five possible reasons some employer harassment training does not seem to work. First, some training does not include specific examples of inappropriate behavior. Second, some training is given only to lower level employees, and not to management too. Third, training can be boring, and seem like a routine waste of time, instead of interactive and interesting. Fourth, training means nothing if powerful harassers are allowed to get away with misbehavior anyway. Finally, training will fall on deaf ears if a company fails to prohibit retaliation against people who actually raise claims. How does your training stack up?


MEN ARE HARASSMENT VICTIMS TOO: A recent national SHRM article provides a timely reminder that women are not the only victims of sexual harassment at work?men can be and are victims too. The news about men allegedly abused by actor Kevin Spacey is only one example of this problem. Every year state and federal agencies deal with claims from men claiming they were sexually harassed, either by female supervisors or same sex co-workers or managers. Many cases of harassment follow traditional lines?a male allegedly harassing a female. However, the law is not written to prohibit only such behavior, and employers must be alert to investigate and remedy all kinds of harassing behavior, no matter who does it, and no matter who is victimized by it.


NLRB REVERSES JOINT EMPLOYER RULE: The National Labor Relations Board (NLRB) recently reversed a ruling that expanded the circumstances under which a business could be found to be a joint employer of the workers of a vendor, service provider, or other business. As a result, indirect control of one organization by another will no longer create a joint employer relationship in NLRB cases. Instead, the NLRB will require direct control, such as when one business supervises and directs the work of an employee from another business.


SUPREME COURT WILL NOT CLARIFY RULES ON ORIENTATION BIAS: The United States Supreme Court has declined, at least for now, to clarify whether federal civil rights laws prohibit discrimination based on sexual orientation. Some federal appeals courts have ruled that sexual orientation is legitimately included within the list of protected classes, but other appeals courts have disagreed. Until the issue is resolved on a national basis, employers must look to the laws applicable by federal courts or states within the regions where the employer has workers. The issue is resolved in Utah, because state law expressly prohibits workplace bias based on either sexual orientation or gender identity.


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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