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 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.

  • February 22, 2018

    The European Union General Data Protection Regulation’s (“GDPR”) enforcement date is fast approaching. By now, most U.S. businesses and organizations have heard of GDPR. This EU regulation is drawing attention in the United States because it expands the territorial scope of EU data protection laws, significantly increases the penalties for non-compliance and is enshrouded with uncertainty.

  • 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
    October 2017

    It’s rare for an employer to announce that it is illegally discriminating against someone. An employee who is a victim of illegal discrimination most often is left with only circum­stantial evidence of the discrimination. But circumstantial evi­dence is still good evidence, and our discrimination laws are designed to enable employees to use circumstantial evidence to hold employers liable for improper discrimination. Therefore, it’s important to know how circumstantial evidence can be used against you and to take appropriate steps to ensure not only that there’s no evidence of illegal discrimination but that no illegal discrimination actually occurred. A recent decision from the U.S. District Court for the District of Utah throws some light on these points

  • 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.

  • Utah Employment Law Letter
    May 2017

    Although the origin of the phrase “jumping through hoops” is uncertain, it is generally accepted that it probably was a reference to circus animals jumping through hoops to please their trainers. The phrase is often used to refer to steps—usually ones deemed unnecessary—that must be un­dertaken before something can be achieved or attained. Many employment claims have hoops employees must jump through to achieve legal redress. For example, antidiscrimination laws typically require employees to seek redress with a federal or state agency before filing a lawsuit.

  • Utah Employment Law Letter
    March 2017

    Laws related to transgender discrimination are in a state of rapid flux. In the past couple of years, courts’ views on the law, particularly federal ones, have swung back and forth like a pendulum. Indeed, the interpretation of discrimination “be­cause of sex” under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act is constantly changing, which leads to confusion for educators and employ­ers. Because of that, discrimination based on gender identity has been the topic of many articles in Utah Employment Law Letter. This article discusses the recent swings of the pendulum and what the swings may mean for employers.

  • Forbes
    February 17, 2017

    Jake Muklewicz, an attorney here at Kirton McConkie, is extensively quoted in a recent Forbes article about the changing environment of hiring foreign workers.

  • Law360
    February 1, 2017
  • Utah Employment Law Letter
    February 2017

    Public employees who have a right to continued employ­ment enjoy constitutional due-process protections that run-of-the-mill at-will employees do not. How can a public employer know if one of its employees enjoys constitutional protection? Well, the U.S. 10th Circuit Court of Appeals (whose decisions apply to all Utah employers) recently clarified that looking at an employee’s employment contract is a good place to start.

  • Utah Employment Law Letter
    January 15, 2017

    During the 1990s, Saturday Night Live, a popular TV sketch comedy show, featured a recurring gender-ambiguous character, Pat. The gag in Pat’s comedy sketches often involved others’ failed attempts to determine the seemingly androgynous character’s gender. The skits played off the then-prevailing view that a person’s gender falls into one of two categories: male or female. 

  • Utah Employment Law Letter
    January 2017

    In 2016, employers were confronted with many new laws, regulations, and issues. Companies geared up for a substantial change in the overtime rule, which ultimately didn’t take effect after a federal judge in Texas issued an injunction placing the rule on hold. The Utah Legislature enacted a statute that significantly changed the law applicable to noncompetition agreements. And Utah lawmakers also amended the Utah Antidiscrimination Act to require employers with 15 or more employees to provide reasonable accommodations in most instances when employees request them for pregnancy, birth, breastfeeding, and other related conditions.

  • Utah Employment Law Letter
    December 2016
  • Utah Employment Law Letter
    November 2016
  • Utah Business
    October 25, 2016