Utah and Employment Law: Five Questions for Kathleen Weron

Utah prides itself on being a business-friendly state, but did you know that attitude extends to employment laws in addition to the tax climate and business regulations? Manning Curtis Bradshaw & Bednar is a boutique litigation firm in Salt Lake City. Kathleen Weron, one of eighteen lawyers at the firm, is a defense lawyer who focuses on employment law. She and the others on her team often work with clients to be proactive and avoid potential lawsuits. We caught up with Kathleen to learn more about employment law in the state and new trends emerging in her profession.

 

From your perspective, how business friendly is Utah’s employment law on a national level?

KW: Utah is in the top three or four, if not in the number one spot, when it comes to employment law. As you may know Utah is an at will employment state which provides employers with flexibility in hiring and firing decisions. In Utah, the presumption is that employment is at-will. That means that employment may be terminated at the will of the employee or the employer for any reason or for no reason, with or without cause, and with or without notice. There are some limited exceptions to that rule; for example, an employer may not make an employment decision, such as termination, based upon a protected class. But, the presumption and law in Utah allows quite a bit of flexibility to an employer in makings its employment decisions.

Utah does not over-regulate its employers. For example, some states require employers to provide mandatory paid-time-off in a statutory amount each year to its employees. In Utah, it is up to the employer to decide whether to offer vacation pay, whether to pay it out upon termination, as well as whether to provide other perks and benefits.

Further, Utah’s anti-discrimination statute is in line with federal statutes. It’s worth noting Utah designates sexual orientation and gender identification as a protected class, meaning employers cannot discriminate against either class.  

More recently, our state legislature took steps to protect businesses in the age of COVID-19. During an emergency session, they passed a law that grants immunity to business and property owners who might face lawsuits for exposing someone to COVID-19. This new statute will apply to employers and workplaces as well. There are obviously exceptions for reckless or intentional harm, but legally speaking that is a higher bar than mere negligence. Without this protection, the discovery process for cases like this could take years and be incredibly expensive, and would do more damage in the long run. The last thing businesses trying to get back on their feet need is to be hit with a costly and drawn-out lawsuit. The state already has its first case by an employee against her employer, challenging this law, and it will be interesting to see how it plays out.

 

How does Utah’s employment law compare to surrounding states?

The star in our crown is just how business friendly Utah continues to be; consistency is key. Nevada and California, both of which Utah regularly competes against on corporate expansion projects, have quite restrictive overtime laws. In both states, overtime is based on a single day, so that anything over eight hours in a 24-hour period is considered overtime. Here in Utah, employers only have to pay overtime for anything over 40 hours in a seven-day period, which is is in accordance with federal wage and hour law.  This makes managing payroll easier for businesses especially when payroll is a major expense for employers.

The other big difference between Utah, Nevada, and California is that the latter two require employers to pay mandatory paid time off of at least 40 hours each year. This is one of those laws that can easily generate litigation claims against employers.  In both states, employees are only required to provide the employer with reasonable notice of their leave, and this lack of notice can often leave employers scrambling to find coverage while the employee is out. Further, employers are prohibited to ask any questions about how the time will be used as well as from retaliating against employees. So, the law not only requires that employers provide mandatory annual leave, but it also opens the door to additional employment law claims against the employer and retaliation is a big one. The EEOC announced that in FY 2019, retaliation claims were the number one filed claim against employers and those claims usually come in tandem with another claim of discrimination.

 

What changes do you see coming as a result of COVID-19 on a state and even national level?

We’re already starting to see changes. As I mentioned previously, the Utah Legislature passed established immunity from Covid-19 litigation to Utah’s businesses.  Utah is only one of four states, the others being North Carolina, Oklahoma and Wyoming, to pass a law granting businesses immunity for claims relating to COVID-19 exposure. Utah, Oklahoma and Wyoming’s laws provide immunity to everyone, as long as safety rules are followed, and conduct is not reckless or intentional. There was a similar effort in Congress, but it didn’t go very far and I don’t expect to see anything actually happen nationally. I also don’t know of any other states that have moved as quickly as Utah did.

The other big change we are starting to see is around the Americans with Disabilities Act (ADA); mainly with concerns about to how to balance it with new safety protocols. Employers will be walking a fine line when it comes to protecting themselves, employees, and customers all while adhering to the ADA. For example:

  • Temperature checks and health questionnaires have become much more common in the age of COVID-19, but employers need to be careful while conducting both. While the Equal Employment Opportunity Commission has ruled in favor of taking an employee’s temperature to prevent an immediate threat, they emphasize that confidentiality is still paramount. The same is true of questionnaires; sensitive private information may inadvertently be revealed and open employers up to discrimination cases.
  • Masks will be another balancing act for employers. If a business chooses not to require masks, employees can argue they don’t feel safe returning to the workplace. Requiring masks brings its own set of problems. Some employees may complain of having to wear a mask and making exceptions to the mask requirements for those who are medically unable to wear one could mean revealing underlying conditions to others.
  • Under the ADA, employers are expected to give reasonable accommodations, but again reasonable accommodations in the current circumstances could bring attention to underlying medical conditions, medical conditions of those in the employee’s household, or the employee’s age. One of the biggest changes to what now is considered a reasonable accommodation is permitting employees to work at home, especially if they are in a vulnerable population.
  • OSHA has a list of resources and guidelines on their website to help employers understand what they need to do to create a safe workplace.

Since we all are learning more about the virus as we go, the best thing employers can do is create thoughtful, mindful, and consistent policies now and then be flexible and willing to adapt as we move forward. The best policies will be those made based on the job and its requirements and are as objective as possible. For example, requiring public-facing employees to wear masks on the job, while those in a private office need not, is an acceptable policy since it is based on the position and the position’s social distancing and not on the employee. Policies will need to be reviewed constantly as the situation created by the virus changes.

 

What are your thoughts on Utah’s response to COVID-19?

The state has done a good job of balancing the human and economic sides of this crisis. You know I’ve asked myself if we are going to be okay after this, and I have a lot of optimism that Utah especially will be fine when this is all over. I have read all three versions of the Governor’s plan and there is a clear focus on the virus. In the newest version, the emphasis on getting resources to those most vulnerable reflects something we didn’t know about in the early days of this.

The plan also includes and balances the need to protect our economy, our businesses, and our people. We’re capitalizing on community, our gritty pioneer spirit, and on the fact that we have a fundamentally strong economy, having jobs for people, and a place for families. I have never been prouder to be a Utahn. There will be challenges and we will see some hard things, but we will rise to the occasion and be an example for the rest of the nation.

 

Bonus Question: What drew you to a law career?

I would say that it was truly in my blood early on; I’ve always loved politics, debate, discussion and storytelling. I had to decide in college whether I would pursue a career in journalism or law. I choose to become a lawyer because that’s where I felt I could affect the most change and make the biggest impact on my immediate world. It’s good to know the rules.

Really in the end it was the efficacy of the legal profession that drew me to pursue a law degree. When you look at investigative journalists and lawyers, both spend a lot of time uncovering the facts and then tell the story. As human beings, we love a good story.  If you can tell a relatable story to the jury, it goes much further than the cold facts alone. In the court room, usually the best trial lawyer is the one who is can tell the best story.

And now really being able to have an immediate impact on the client and their business is really meaningful for me  and what I love about employment law. After all, behind the company are the people of the company, the owner, the founder, the CEO, and everyone else.

 

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Publication 
Wed, 06/17/2020 - 12:42