Articles

The articles, white papers and blog posts in this section include those written by our attorneys and articles for which our attorneys were interviewed. This is for informational purposes only. You should not act upon article content without seeking professional legal counsel regarding your particular situation or issue.

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  • Utah Employment Letter
    July 2018

    But simply making the policy accessible isn’t enough. Employees need to actually believe the policy is more than an apathetic or disinterested platitude or some obligatory or boilerplate statement that a lawyer inserted into the handbook. They must feel that the statement reflects a real attitude and that the employer actually aspires to that goal. Otherwise, the policy is unlikely to be followed and almost certainly will have little to no effect on the company culture.

     

    Acts of sexual abuse and harassment that had been allowed to grow and metastasize malignantly in the dark were now being exposed. Victim after victim came forward with stories of abuse and harassment. Their accounts became public, and victims found support and solidarity as part of this growing movement as they empathized with one another. They were encouraged, inspired, and empowered to speak out by the confidence of others already telling their tales of abuse. Banding together, these victims and others supporting the movement publicly and powerfully declared that they will tolerate abuse and harassment no longer. This movement is empowering even more victims to confront their harassers despite the fear of reprisal or embarrassment that accompanies reporting sexual harassment.

     

    This movement has permeated all facets of society, including the workplace. It’s affecting the way the public views and thinks about sexual misconduct. Within the workplace, employees are increasingly opening up about workplace sexual harassment. Bloomberg BNA reports that more than 400 executives and other high-profile employees have been exposed by the growing #MeToo movement since it started to take off. Many employers have embraced the movement and have taken steps to eliminate and prevent further sexual harassment in the workplace.

     

    Unfortunately, that’s not universally the case. Some employers are simply holding their proverbial breath, hoping they won’t be implicated. As this movement puts a spotlight on workplace sexual harassment, they need to begin to take action to eradicate harassment and abuse.

  • Utah Employment Law Letter
    June 2018

    Another session of the Utah Legislature is in the books, and lawmakers have enacted several new laws of which em-ployers should be aware. Most of the new laws went into ef-fect May 8, 2018. In last month’s issue of Utah Employment Law Letter, we reported on the passage of an amendment to the Post-Employment Restrictions Act (i.e., Utah’s law gov-erning noncompete agreements) that affects broadcasters (see “Broadcast the news: no noncompetes for TV and radio tal-ent in Utah” on pg. 1). Below is a summary of some of the other new laws with which you should familiarize yourself.

  • Utah Employment Law Letter
    May 2018

    Do you ever watch a particular news program because of the news anchors or listen to a certain radio program be­cause of the announcer? Viewers and listeners usually tune in to programs based on how entertaining or engaging they find the show, which is frequently a byproduct of how personable and likeable the announcer is. The best radio, television, and cable personalities have a certain on-air identity that viewers and listeners find attractive. In short, they have an engaging media persona with which viewers connect. That persona car­ries with it a certain cachet, and media personalities sometimes even become icons. When they are seen as the veritable “face” of the program, the broadcaster’s loss of their talent could be devastating to the program’s ratings.

    Because their competitors would love to lure away popu­lar news anchors or radio presenters, it’s no wonder that radio, TV, and cable broadcasters love to lock up their on-air talent with noncompetition agreements. But that has been changing across the country—and it’s now starting to change in Utah. As you may recall, it wasn’t that long ago that the Utah Legisla­ture limited new noncompete agreements to one year. In 2018, state lawmakers enacted a new law that will have an impact on when and under what circumstances noncompetes can be used in connection with radio, television, and cable news anchors and reporters and other on-air personalities. In some cases, the use of noncompetes is simply banned. This article discusses the new law and its effect on the broadcasting industry.

  • Utah Employment Law Letter
    May 2018

    As most of you know, the Fair Labor Standards Act (FLSA) generally requires employers involved in commerce to pay covered employees overtime for all hours over 40 they work during a workweek. The overtime rate must be at least 1½ times the employee’s regular rate of pay. However, there are certain recognized exemptions to the FLSA’s overtime requirements.

    For decades, those exemptions have been narrowly construed to require the payment of overtime to more employees. The U.S. Supreme Court recently rejected that interpretation in determining whether service advisers at an automobile dealership were exempt from the FLSA. Read on to find out why the Court rejected a decades-old interpretive tool and what the ruling may mean for employers going forward.

  • Utah Employment Law Letter
    March 2018

    Back when English lawyers decided that their mother tongue wasn’t sufficiently pompous, they fastened on to vari­ous Latin maxims. One of those was “Rex non potest peccare.” To all non-Latin speakers, that means “The king can do no wrong.” In other words, you can’t sue the king. The concept, dating back to Merrie Olde England, worked its way to the United States as part of the common law and is alive and well. The purpose of this article is not to analyze whether so-called sovereign immunity is a good idea. Rather, it is to remind pub­lic employers that the doctrine exists and can be a powerful tool in their litigation toolbox.

  • Law360
    February 9, 2018

    Nearly 50 Russian athletes lost last-ditch appeals to the Court of Arbitration for Sport to participate in the Winter Olympics despite a ban on their country’s team for state-sponsored doping, raising questions about the due process afforded to athletes and placing new focus on the international sports court.

  • Utah Employment Law Letter
    February 2018

    Valentine’s Day is the time of the year we associate with romance and dating. The amount of time coworkers spend to­gether increases the likelihood that romance could blossom in the workplace. However, the office romantic relationship can be a troublesome weed that employers need to uproot instead of a beautiful flower.

    Such relationships can be a distraction, leading to gossip, discord among employees, or interoffice jealousies. Further, when relationships don’t end well, they can result in harass­ment or retaliation claims. Plus, there’s the issue of managers attempting to date those they supervise, which creates a signifi­cant risk of favoritism—or at least the perception of favoritism.

    Employers have taken different approaches to addressing dating and relationships in the workplace. Some enact policies prohibiting some relationships, whiles others tend to ignore them. This article discusses the legal issues of dating at work and whether you should decide if it’s time to implement a rela­tionship policy.

  • Utah Employment Law Letter
    January 2018

    Congress originally enacted the Religious Freedom Restoration Act (RFRA) in 1993 in response to a U.S. Supreme Court decision it thought infringed on free exercise rights. Although the RFRA was found to be unconstitutional in certain respects, it continues to be applicable to the federal government and its agencies. Thus, it could be applied to religious employers’ efforts to petition for visas for their workers.
    Recently, this law was put to the test when a church was denied a visa for a music director because it couldn’t prove that it could pay him since his pay would come directly from the offerings of congregants. Read on to learn how the U.S 10th Circuit Court of Appeals (whose rulings apply to all Utah employers) addressed the religious challenge to the efforts to obtain a religious employment visa.

  • Utah Employment Law Letter
    December 2017

    In Greek mythology, two sea monsters—Scylla and Charybdis—lived on opposite sides of the Strait of Messina between Italy and Sicily. The monsters were located in such proximity to each other that they presented an unavoidable threat to sailors traversing the narrow strait. In Homer’s Odyssey, Odysseus and his crew attempted to evade the creatures as they passed through the strait. Much like the proverbial “between a rock and a hard place,” finding yourself “between Scylla and Charybdis” refers to the necessity of picking between two conflicting choices when neither will have a positive outcome. Having to decide how to respond to competing reasonable accommodations under the Americans with Disabilities Act (ADA) or the related Rehabilitation Act can feel exactly like being caught between Scylla and Charybdis.

  • Utah Employment Law Letter
    November 2017

    In light of recent mass shootings in Las Vegas and Sutherland Springs, Texas, guns have become a hot topic. Some people want to enact bans and other regulations on cer­tain types of guns. Others adamantly insist that the Second Amendment to the U.S. Constitution protects the right to own, pos­sess, and use guns.

    Unsurprisingly, the debate concerning firearms has spilled over into the workplace. Employers wrestle with whether to imple­ment rules banning or governing firearms at work or on their premises, perhaps unsure if the law will permit certain gun policies. Other than general bans on certain types of weapons (such as automatic weapons), fed­eral law doesn’t govern guns in the work­place. Thus, state laws largely determine whether an employer may establish gun policies.

  • Utah Employment Law Letter
    September 2017

    While sitting in prison in 1642, the English poet Richard Lovelace penned his most famous lines: “Stone walls do not a prison make, nor iron bars a cage.” While Lovelace’s words about the nature and power of the human spirit are stirring and speak to our highest sense of humanity, the more mundane truth is that prisons are made from stone walls and iron bars. Prisons are also prisons thanks to the strict rules, regulations, and policies they operate under. In a recent dispute between the Utah Department of Corrections (UDOC) and one of its correctional officers, the state learned that not only the inmates but also the state itself should follow those strict rules strictly. The dispute involved a correctional facility, but its resolution provides guidance for all public employers.

  • Utah Employment Law Letter
    August 2017

    Have you ever thought about how the word “limit” de­fines our perceptions of and interactions with the world around us? The concept of a “limit” engenders thoughts of a bound­ary, an edge, or an end. When we say something is limited, we are suggesting that it is restricted, constrained, or regulated. Something that is limited is imperfect or incomplete. We speak of pushing things to the limit when we are going to the edge of our abilities, or we declare the “sky’s the limit” to indicate that things are unrestricted.

  • July 2017

    The workings of the human mind have fascinated and per­plexed people for eons. Scientists, artists, politicians, lawyers, and theologians have all grappled, in one way or another, with how the mind works and how its functioning affects society. But perhaps no group of people has systematically studied the human mind, its heights, and its recesses, more rigorously than psychologists. From Freud to Skinner, to Piaget, to Erikson, to Maslow, psychologists have tried to make sense of the mind in­side the brain, often coming to radically different conclusions. The fact that they don’t all agree points to one important fact: Psychologists—those masters of the mind—are human, too, subject to all the foibles and faux pas they try to illuminate. And that means psychologists, like all professionals, may make mistakes and can be difficult employees. Thankfully, as the University of Denver recently learned, the law grants the same protections to organizations that employ university-trained professionals as it does to the owner of the corner market.

  • Utah Employment Law Letter
    July 2017

    Boom! The sky is filled with glimmering light in all colors of the rainbow, and the crowd “Oohs” and “Aahs.” It’s that time of year, when roadside fireworks stands start popping up on every street corner and the sky glows with spectacular balls of colorful light. Fireworks are an integral part of Utah’s July 4 and July 24 celebrations. Although watching and igniting fireworks is enjoyable, it can also be dangerous. Unfortunately, many individuals end up in emergency rooms across the state because of injuries caused by or associated with fireworks dur­ing the month of July.

  • HR Hero
    June 27, 2017
  • Utah Employment Law Letter
    May 2017

    Since the civil rights movement of the 1960s, state and fed­eral laws have been enacted to prohibit employment discrimi­nation against individuals on the basis of their race, ethnicity, age, disability, religion, and gender. Until recently, virtually none of those antidiscrimination laws covered employment discrimination based on sexual orientation or gender iden­tity. Over the last decade, as issues related to sexual orienta­tion and gender identity have moved to the forefront of social consciousness, several states, including Utah, and certain fed­eral agencies, including the Equal Employment Opportunity Commission (EEOC), have started to recognize and address employment discrimination in that context.