Employment Law Update

Michael Patrick O’Brien
May 10, 2010 | COMMENTS

The Utah Legislature has passed a bill that would require all Utah private employers with 15 or more employees to use the federal E-Verify employment verification system, or a comparable system, when hiring new employees beginning on or after July 1, 2010. The bill, S.B. 251 (see full text of bill is online here) was sponsored by Sen. Chris Buttars (of West Jordan, Utah). Utah Governor Gary Herbert signed the bill, but apparently struck a deal with Sen. Buttars that such verification will only be voluntary for its first year. They also agreed that this change to the bill will be formally implemented during a future special session of the Utah Legislature. The bottom line is that this requirement is coming, but probably will not arrive as a legal mandate until July of 2011.

Porch-Building While on FMLA Can Lead to Termination

A federal appeals court in the Midwest has ruled that an employer can terminate an employee who misrepresented his need for leave under the Family and Medical Leave Act (FMLA). The case involved an employee who initially qualified for and took leave for a month for a work-related head injury. After he returned to work, the employer received an anonymous note alleging that the employee had built a porch while on leave and while doing so, had regularly climbed a ladder and used power tools. After it investigated and confirmed the allegations, the employer fired the employee for misrepresenting facts to it in violation of company policy. The employee sued. The court upheld the firing, concluding that under the circumstances, the employer could reasonably believe that the employee had misrepresented his symptoms because building a porch was as strenuous, or more difficult, than his actual job duties from which he had taken leave. The employee was unable to show that this employer's reason for his discharge was a pretext for FMLA discrimination and thus, the court dismissed his claims.

COBRA Subsidy Extended to May 31, 2010

 Over a year ago, as part of the federal economic stimulus package, Congress created a special 65% COBRA subsidy to allow employees to maintain their health care benefits during layoff.  The subsidy was scheduled to expire last year, but has been extended now to cover employees losing their jobs on or before May 31, 2010.

Sexual Harassment News

  Three interesting news items regarding sexual harassment laws: First, a recent poll from the national Society for Human Resource Management (SHRM) indicates that sexual harassment at work still occurs, but is not “on the rise.” SHRM members randomly polled reported there was no change in the number of sexual harassment claims with which they are dealing. However, while overall numbers were unchanged, the poll confirmed that employers are receiving more and more sexual harassment claims from males. Second, the EEOC also reports that although most such claims still come from women, claims from males have been steadily increasing during the last ten years. One EEOC report shows that in Utah , males bring one-third of the sexual harassment claims filed and that Utah often leads the nation in the percent of claims filed by men. Finally, a college in Pennsylvania recently paid $1 million to settle claims that one of its supervisors had harassment five different women in his department. In addition to its core curriculum, the college must also now educate all its managers on preventing sexual harassment.

DOL Guidance on Interns

 The United States Department of Labor has issued a guidance on the hiring of interns on when such relationships must be paid. The DOL uses the following six criteria to determine that an internship can be unpaid:

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training, which would be given in an education environment.
• The internship experience is for the benefit of the intern.
• The intern does not displace regular employees, but works under close supervision of existing staff.
• The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded.
• The intern is not necessarily entitled to a job at the conclusion of the internship.
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

With summer fast-approaching, make sure you review these criteria and pay interns who do not clearly satisfy all of them.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.