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March 16, 2012

This is Utah SHRM Legal-mail no. 2012-7 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 







COURT UPHOLDS NLRB POSTING REQUIREMENT:  A D.C. federal court has sustained the actions of the National Labor Relations Board (NLRB), which last year imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA).  This new NLRB poster requirement was supposed to take effect as of November 14, 2011 but that deadline was later delayed until January 31, 2012 and then again delayed until April 30, 2012.  The most recent delay resulted from the D.C. court’s request to postpone the effective date pending a legal challenge to the new requirement.  The court also concluded that the NLRB could not make an employer’s failure to post alone an unfair labor practice but rather the NLRB would have to show that the failure to post actually interfered with employee NLRA rights.  If you want more information on the posting requirement, follow this link to the NLRB’s FAQ on this new posting requirement:  A copy of the new poster is available both here: and here:

COURT CLARIFIES FMLA RETALIATION RULES:  Another federal court in Atlanta, Georgia has issued a ruling clarifying the Family and Medical Leave Act (FMLA) retaliation/interference protections.  The court ruled that an employee who is not yet eligible for FMLA is still protected from retaliation for requesting leave at the time he/she becomes eligible in the future.  The case involved a claim that an employer retaliated against an employee when it learned she was pregnant and would be taking FMLA leave several months later after she was eligible and when the baby was born.

TEXTING AND EMPLOYMENT LITIGATION:  I have been involved in several recent lawsuits where cell phone texts were part of the evidence and recently read a couple of new articles discussing how more and more employment lawsuits include texts as part of the evidence.  Thus, perhaps it is a good time for a reminder that when an employer gets reasonable notice of a likely or filed claim, the employer must take steps to preserve all records (electronic or otherwise) and document its efforts to do so.  This is called the Litigation Hold process.  Essentially, a notice must be sent to all relevant records custodians (HR, supervisors, etc.) to preserve relevant records (which should be identified as much as possible- e.g. personnel records, payroll, etc).  You should also involve the company’s IT department to preserve e-records (such as email, and the computer of the involved employee) and to suspend any normal e-records purging.  Failure to preserve such evidence can result in serious consequences, even in cases where the employer might have good defenses to the claim.  Remember as you tell relevant persons to preserve relevant records, think about texts and include the same in your hold notices.

SPRING EMPLOYMENT LAW READING:  Need a break from Spring cleaning?  How about doing some Springtime reading and taking in some timely employment law tips published recently? and The Deseret News recently ran an interesting article on age discrimination, and they even let me chime in.  You can read this article online on at  and also at: And Utah Business was kind enough to pick up an article I recently wrote about social media and employment law.  Check it out at:

HAPPY ST. PATRICK’S DAY!  St. Patrick's Day nears...time for some olde Irish blessings and toasts.  Here’s a blessing for proactive HR persons who want to avoid employment law claims- “May you have the hindsight to know where you have been, the foresight to know where you are going and the insight to know when you have gone too far.”  Here’s an Irish toast for the HR manager trying to distinguish good recruits from bad ones- “May those that love us, love us; and for those that don't love us, may God turn their hearts; and if he can't turn their hearts, may he turn their ankles, so we may know them by their limping.”  And don’t forget my all-time favorite (which really has nothing to do with HR law but is just fun to hear again at this time of the year)- “May the road rise up to meet you, may the wind be always at your back, may the sun shine warm upon your face, and the rain fall soft upon your fields, and until we meet again, may God hold you in the palm of His hand.”  We got to visit Ireland last summer, and among other things rode through the lovely Killarney national park in a jaunting car (horse carriage) pulled by a horse named Whisky.  Afterwards, I wrote this limerick...enjoy and Happy St. Patrick’s Day!

At a place called Killarney park,
green shades shimmer, soft and dark,

Add a horse name o’ Whisky
who trots lively and frisky
and your soul starts to soar like a lark.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, 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.