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    Image for What you need to know regarding Utah Surrogacy Law
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    Image for Quarter #3 2019: Landlord Liability for Tenant's Trademark Infringement
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    Image for DHS Announces Final Rule for a More Effective and Efficient H-1B Visa Program
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    Image for Creating an antiharassment workplace culture in the #MeToo era

    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.

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    Image for Utah employers should take note of this year's newly enacted laws

    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.

  • News & Articles
    Image for Broadcast the news: no noncompetes for TV and radio talent in Utah

    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.

  • News & Articles
    Image for High court rejects narrow interpretation of FLSA exemption

    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.

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    Image for It’s good to be king: public officials and qualified immunity

    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.

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    Image for Athletes' Rights In View After IOC, CAS Differ On Olympians

    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.

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    Image for When Cupid’s arrows wound the company, is it time for a dating policy?

    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.

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    Image for Employment visa requirement doesn’t violate RFRA

    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.

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    Image for Between Scylla and Charybdis: the reasonable accommodation dilemma

    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.

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    Image for Private employers in Utah generally may establish workplace gun policies

    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.

  • News & Articles
    Image for Stone walls (and policies) do a prison make: UDC bound by its rules

    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.

  • News & Articles
    Image for How Utah evaluates a worker’s entitlement to PTD benefits

    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.

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    Image for Crossing professional boundaries: Demotion leads to sex bias claims

    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.

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    Image for Avoiding an explosive situation: fireworks in the workplace

    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.

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    Image for Supreme Court’s action on ‘travel ban’ eases some employer concerns
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    Image for Stage is set for SCOTUS to rule on Title VII and sexual orientation

    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.

  • News & Articles
    Image for Utah Legislature’s amendments to two wage statutes now in effect

    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.

  • News & Articles
    Image for Shifting sands: the changing landscape of transgender discrimination

    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.

  • News & Articles
    Image for U.S. Companies Will Hire More Foreigners This Year, Survey Says

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

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    Image for Why Trump Should Keep Legal Immigrants Legal
  • Image for Utah employee had no constitutional right to continued employment

    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.

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    Image for U.S. Supreme Court to consider transgender restroom lawsuit

    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. 

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    Image for Unclear crystal ball: What might 2017 hold for employers?

    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.

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    Image for Court blocks DOL’s new overtime rule from taking effect
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    Image for Merger does not invalidate noncompete, nonsolicitation covenants
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    Image for Unpacking Brexit: How the UK’s exit from the EU could change how Utah does international business
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    Image for Penske and the warehouse manager: Logistics of FMLA interference

    Employers cannot interfere with employees’ right to take approved leave under the Family and Medical Leave Act (FMLA). Failure to respect FMLA leave rights can open an employer to liability. But that doesn’t necessarily mean you can’t take appropriate disciplinary action against an employee who is on leave. Read on to see how one company threaded that needle when it learned an employee on leave had what appeared to be a long history of hidden misbehavior.

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    Image for Chapter Editor (Attorney’s Fees), Employment Discrimination Law by Lindemann, Grossman, Weirich
    Chapter Editor (Attorney’s Fees), Employment Discrimination Law by Lindemann, Grossman, Weirich
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    Image for What qualifies as a ‘request for accommodation’ under the ADA?
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    Image for Words, words, words: When is a salesman not a salesman?

    Kirton McConkie attorney Brinton M. Wilkins discusses the Supreme Court's 2011 ruling overtime exemptions and whether it actually covers service advisers or "salesmen."

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    Image for ‘Where’s the beef?’ The FCA and its whistleblower protections
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    Image for DOL's final rule increases minimum salary for overtime exemptions

    Kirton McConkie attorney Ryan Frazier discusses the U.S. Department of Labor final rule and what employers must do to ensure compliance.

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    Image for Sharing is caring: Are Uber, Lyft drivers independent contractors?

    Kirton McConkie attorney Ryan Frazier discusses the hot topic in the classification of Uber and Lyft drivers.

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    Image for New Utah law limits use of noncompetition agreements

    Kirton McConkie employment lawyer Ryan Frazier talks about new Utah law and how employers need to be aware of this revision of the law and consider how it may affect the use of noncompetition covenants in the future.

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    Image for Employee terminated despite manual’s assurances against retaliation

    Kirton McConkie employment lawyer Ryan Frazier talks emplyoment contracts. Read on to find out when a promise of continued employment may be more than a promise—and when it may be a contract. 

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    Image for Don't bet on it: Allowing a fantasy sports league may be gambling with legal trouble

    Kirton McConkie employment lawyer Ryan Frazier talks about the possible legal consequences for employers if associated with an onsite league.

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    Image for Global Trends in Anti-Corruption Legislation: Mexico to Ramp up Enforcement Activity
    Global Trends in Anti-Corruption Legislation: Mexico to Ramp up Enforcement Activity
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    Image for Employers: Check the law before checking an applicant's background

    Kirton McConkie employment lawyer Ryan Frazier talks about the legal consequences for improperly conducting employee background checks.

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    Image for Noncompliance with New EU Data Privacy Rules can be Costly
    Noncompliance with New EU Data Privacy Rules can be Costly

    Kirton McConkie international attorneys Thomas Monson and Kyle Petersen wrote a post for the firm blog, Perspective, which was picked up as a story for Corporate Compliance Insights.

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    Image for How to choose an adoption attorney for direct adoptions

    Kirton McConkie adoption attorney Larry Jenkins highlights key questions prospective parents should ask when hiring a lawyer for a direct placement adoption.

  • News & Articles
    Image for Revisit employment policies in light of Supreme Court’s same-sex marriage ruling

    Kirton McConkie employment lawyer Ryan Frazier highlights the bottom line for employers regarding same-sex marriages. Click title to read.

  • News & Articles
    Image for Recent trends involving the L-1 Visa category for intra-company transferees

    Kirton McConkie immigration lawyer Jake Muklewicz continues his discussion of the L-1 visa category in this second article in a two-part series. Click title to read article.

  • News & Articles
    Image for Less Can Accomplish More for Immigration Reform
    Less Can Accomplish More for Immigration Reform

    Kirton McConkie immigration attorney Jake Muklewicz contributed a chapter to the book Litigation Strategies for Immigration Issues, which was published by Thomson Reuters/Aspatore. Rather than radical immigration reform, he makes a case for a more practical and fair approach to resolve various immigration issues.

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    Image for Overview of the L-1 visa category for intra-company transferees

    Kirton McConkie immigration lawyer Jake Muklewicz provides an overview in part one of a two-part series on the L-1 visa category, which is available to foreign nationals who work for a U.S. company's foreign parent, subsidiary, affiliate or branch office for at least one aggregate year within the three years immediately preceding the filing of an L-1 petition. Click title to read article.

  • News & Articles
    Image for Do dropped channels mean you can drop your satellite contract?

    Kirton McConkie technology lawyer David Shaw was contacted by KUTV's Matt Gephardt to answer a viewer question about whether a contract with Dish Network is broken if channels the viewer wants are dropped. Click to view.

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