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Employment LawLegal Insights

Employment Law Update- 1/13/2022

By January 13, 2022No Comments

CONTENTS: 

  • STILL WAITING FOR VACCINE MANDATE RULING
  • ARE NLRB WORKPLACE RULES ABOUT TO CHANGE AGAIN?
  • RESPONDING TO COMPLAINTS ESSENTIAL TO MINIMIZE LIABILITY RISKS
  • DID YOUR EMPLOYEES MOVE OUT OF STATE DURING THE PANDEMIC?
  • UTAH LEGISLATIVE SESSION STARTS THIS MONTH
  • EMPLOYERS BEHAVING BADLY
  • JONES WALDO TO PROVIDE ANNUAL EMPLOYMENT LAW UPDATE

STILL WAITING FOR VACCINE MANDATE RULING: Right now, the United States Supreme Court is reviewing the validity of federal vaccine mandates from OSHA (on employers with 100 or more employees) and Medicare (on health facilities that receive Medicare payments). There is no court ruling yet as of the time/date of this update. Utah is a state plan, meaning OSHA does not directly govern workplace safety issues in Utah, and instead, a state agency (UOSH) does so. UOSH has to either adopt the OSHA standard or implement one just as effective. UOSH has signaled it likely will adopt the OSHA rule if it is upheld by the courts, and that it has until late January 2022 to make this decision. This gives Utah employers a little more breathing room to comply with the mandate if the courts uphold it. Stay tuned for developments!

ARE NLRB WORKPLACE RULES ABOUT TO CHANGE AGAIN? One of the challenges for businesses trying to comply with employment law is that the law changes sometimes based on who holds political power. Perhaps the best example is the federal National Labor Relations Board (NLRB). Among other laws, the NLRB enforces the National Labor Relations Act (NLRA). The NLRA regulates both union and non-union workplaces by giving employees the right to act in concert (i.e. together) to talk about or try to change working conditions. Employers can run afoul of these rules by “chilling” these rights, for example with careless restrictive statements in policies, handbooks, or during investigations. Because the United States president appoints its members, the way the NLRB approaches such issues tends to be more employee-friendly under a Democratic president and more business-friendly under a Republican president.

In 2017 during the Trump administration, in a case named after the Boeing Company, the NLRB explained it will consider/resolve such issues in one of three categories: (1) lawful rules that don’t interfere with NLRA rights or where adverse impact is outweighed by employer justifications; (2) rules that should be scrutinized case-by-case to determine if they interfere with rights and whether there is a legitimate justification for them; and (3) unlawful rules that prohibit or limit protected conduct and where adverse impact is not outweighed by the employer’s justification, for example, a rule that prohibits employees from discussing their wages or benefits with each other.

According to a recent national SHRM news article, the NLRB now has asked for briefs (in a pending case) on the point of whether this Boeing standard should be changed. The NLRB also asked whether certain types of work rules—such as rules requiring confidentiality during investigations, rules prohibiting disparagement of company officials, and rules limiting outside employment—should always be unlawful. If the NLRB changes its analysis on these issues, employers may have to re-write a number of sections in their policies and employee handbooks in order to comply. Stay tuned…we should know about what will happen in the spring or early summer of 2022.

RESPONDING TO COMPLAINTS ESSENTIAL TO MINIMIZE LIABILITY RISKS: There is a sad news story emerging from Provo, Utah recently. A woman has filed a federal court lawsuit alleging that in the summer of 2020 she told her supervisors about a man repeatedly harassing her at work. The lawsuit contends nothing was done by the employer, and then the alleged harasser attacked her in the parking lot as the employee left work. According to the newspaper story, “The woman said if a child at the pool had made the same complaint, protocol dictates that police would have been called, an incident report would have been filed and the man would have been banned. But the lawsuit alleges that employees were not adequately trained to deal with potentially dangerous patrons when reported by other adults, the woman said.” In response to the news article, the employer has noted, “some different perspectives” based on its own investigation. Employers cannot guarantee that no one ever will harm their employees, but they must take reasonable steps to protect employees in workplace-related situations, even if the threat is from a non-employee. If the facts alleged in this case are true, the employer probably should have at least intervened, investigated, talked to the alleged harasser, removed him from the scene if justified, called the police if necessary, and provided the threatened employee an escort to her car when the work shift ended.

DID YOUR EMPLOYEES MOVE OUT OF STATE DURING THE PANDEMIC? We have received a number of recent calls from worried clients reporting that they just discovered that one of their employees moved from one state to another while working remotely during the pandemic. This all-too-common scenario presents a number of problems and challenges for employers.

Imagine the situation where you are a Utah-based company and hire someone who lives in Utah. Unless the job duties outline something else, in this situation there is at least an implicit agreement that the employee will live and work in Utah and stay here while employed. Based on this agreement you, the employer, apply Utah laws to the relationship, pay Utah taxes, report the new hire in Utah, etc. If, however, the employee moves to California and works remotely from there, suddenly you have to deal with a whole new (and rather different) set of employment and tax laws and reports which you may not want to apply to your business. If the employee is valued, you will have been backed into an undesired situation of choosing between the employee and the new business location without advance consideration and business planning (i.e. “Surprise, I just opened a California office for you!”) If the employee moves to a foreign country, the situation is made even more complex.

One of the lessons of the current telecommuting-pandemic workplace is that you probably have to more clearly define where remote employees can work. You also should require them to notify you and get permission before they move out of the state where you expect them to work.

UTAH LEGISLATIVE SESSION STARTS THIS MONTH: The annual regular 45-day session of the Utah Legislature starts on January 18, 2022, and ends on March 4, 2022. Many employment-related bills are on file already. For example, designed to protect beleaguered health care workers, HB 32 would enact enhanced criminal penalties for assault or threat of violence against an owner, employee, or contractor of a health facility. SB 63 would require state and local governments to provide bereavement leave for employees who experience a miscarriage or stillbirth. On the COVID-19 front, HB 60 does the following; (1) makes it unlawful for a public accommodation (e.g. hotel or restaurant) to discriminate against an individual based on vaccination/immunity status, (2) with certain exceptions, prohibits a governmental entity from requiring proof of vaccination/immunity status, and (3) with certain exceptions, makes it unlawful discrimination for an employer to require proof of vaccination/immunity status. Finally, HB 63 requires an employer to relieve an employee or a prospective employee of a COVID-19 vaccination mandate if the employee or prospective employee submits a physician’s note stating that the employee or prospective employee was previously infected by COVID-19. No doubt other HR law bills will surface too. Jones Waldo employment lawyers will track the progress of all these bills and let you know if/how the law changes.

EMPLOYERS BEHAVING BADLY: Maybe it’s the pandemic, or the labor shortage, or the great resignation, or just the crazy times in which we live, but recent news accounts have reported stories of employers acting quite badly in termination situations. For example, in Georgia, a man quit his job and complained to the government that he did not get his final pay. Instead of immediately mailing the final paycheck, however, the involved employer bad-mouthed the employee on social media and then dumped over 90,000 pennies onto the employee’s home driveway. The pennies, which added up to the amount of the final check, also were covered with some kind of an oily gooey substance. Now the government is suing the employer, arguing that the penny-dumping and related misconduct were acts of illegal retaliation.

Closer to home, here in Utah, we have the unhappy story of the boss who allegedly tried to punch a worker while firing him. A newspaper reported the employee claimed the boss had “done this several times over the years” so the worker decided to leave to let the boss “cool off” and return later to talk to him. The employee drove around for a few minutes when the boss allegedly rammed his vehicle into the back of the fired worker’s truck, tried to ram the truck twice more, and then sped away as police arrived. Criminal charges are pending. In response to the story, the employer’s attorney offered a solid, “No comment,” but added that the parties are “working toward a positive outcome.”

JONES WALDO TO PROVIDE ANNUAL EMPLOYMENT LAW UPDATE FOR SALT LAKE SHRM ON FEBRUARY 8:  On February 8, 2022, the Employment Law Team from Jones Waldo—i.e., the authors of these updates—will present a 2022 employment law update at Salt Lake SHRM’s Professional Development Meeting.  Salt Lake SHRM’s tentative plan is to hold the presentation live at Gardner Village on February 8, from 10:00 am to 1:00 pm, with an option to participate remotely via live stream. We will cover all the latest COVID-19 developments, including a roundup of the Biden Administration’s various vaccination mandates, who pays for COVID testing (including the time spent waiting to be tested), the CDC’s latest isolation and quarantine guidelines, whether a COVID-19 infection may be considered an ADA-covered disability, and current OSHA safety recommendations. But rest assured, the law has changed in other ways that have nothing at all to do with COVID-19. The Jones Waldo team will cover these topics too, including a Utah legislative update, the latest EEOC and UALD enforcement data, key new federal court decisions, the Biden Administration’s wage hike for employees of federal contractors, and its apparent plans to limit non-compete agreements. For additional information, or to register, please visit Salt Lake SHRM’s website at Annual Legal Update (slshrm.org).

 

Mike O’Brien | mobrien@joneswaldo.com
Mark Tolman | mtolman@joneswaldo.com
Marci Rechtenbach | mrechtenbach@joneswaldo.com
Paul Smith | psmith@joneswaldo.com
Michael Judd | mjudd@joneswald.com
Elena Vetter | evetter@joneswaldo.com

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