Employment Law Update
Is the Utah Legislative Session Over Yet?
The 2024 legislative session has been a whirlwind for Utah employers but will conclude on March 1, 2024. Our next newsletter will provide an update of all the laws that were passed that affect Utah employers. Here is a summary of current bills to watch:
H.B. 305, Post-Employment Restrictions Amendments, sponsored by Rep. Brammer
This bill seeks to amend the Post-employment Restrictions Act regarding non-compete agreements. The bill would void any post-employment restrictive covenant if the employee is non-exempt from overtime and minimum wage requirements under the Fair Labor Standards Act or if the employer lays off the employee. This bill is pending in the House.
H.B. 55, Employment Confidentiality Amendments, sponsored by Rep. Birkeland
The bill makes nondisclosure and non-disparagement clauses related to sexual assault and sexual harassment as a condition of employment unenforceable. It also provides that an employer who attempts to enforce such a confidentiality clause may be liable for costs and attorney’s fees under certain conditions. The bill further prevents employers from retaliating against an employee who makes an allegation of sexual harassment or assault, something that was already prohibited under federal law for employers with at least 15 employees. Under H.B. 55, all employers, regardless of size, are prohibited from retaliating. This bill passed the Senate and House and is awaiting signature by Governor Cox.
H.B. 396, Workplace Discrimination Amendments, sponsored by Rep. Brammer
This bill seeks to increase religious expression rights for employees in the workplace. The bill states that an employer “may not compel an employee to engage in religiously objectionable expression that the employee reasonably believes would burden or offend the employee’s religious, moral or conscientious beliefs, unless accommodating the employee would cause an undue burden to the employer” by substantially interfering with the employer’s core mission, the employer’s ability to conduct business in an effective or financially reasonably manner, or the employer’s ability to provide training and safety instruction for the job. Religiously objectionable expression is defined as “expression, action, or inaction that burdens or offends a religious, moral, or conscientious belief, including dress and grooming requirements, speech, scheduling, prayer, and abstention, including abstentions relating to healthcare.” This bill would increase the requirements on employers to accommodate religious and related beliefs well beyond what is required by federal law. It may also put an employer in a position where Utah law will conflict with federal law.
For example, one employee may claim to have a moral objection to using a transgender employee’s preferred name and pronouns. But the transgender employee may also object to the situation and ask the employer to require coworkers to use their preferred name and pronouns. Under this proposed law, the employer may be required to accommodate the employee’s moral objection. However, federal law requires an employer to protect a transgender employee from harassment. See EEOC Sexual Orientation and Gender Identity (SOGI) Discrimination Guidance (“Although accidental misuse of a transgender employee’s name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”) This, and many other examples, will put employers in a difficult place if H.B. 396 becomes law. This bill passed the House and is pending in the Senate.
What does this mean for you? Read our next newsletter to find out which bills passed and how the final language came together. Better yet, reach out to your local representatives and let them know what you think about the pending legislation! You can find your local representative here: District Map (utah.gov).
NLRB Rules Home Depot Violated Law by Terminating an Employee Who Refused to Remove BLM Messaging from Their Apron
If you are a regular reader, you know that the National Labor Relations Board (NLRB) has been issuing a number of decisions which expand the rights of employees for “protected concerted activity.” The NLRB just issued another of these decisions, ruling that Home Depot violated the law by firing an employee for refusing to remove Black Lives Matter (BLM) messaging from the employee’s work apron.
This case began in a Home Depot store in Minnesota, the state where police killed George Floyd, setting off BLM protests. After the Floyd murder, several employees wrote “BLM” on their Home Depot orange aprons. The store fired at least one employee named Antonio Morales over the matter.
The NLRB ruled that the employee’s refusal to remove the messaging was “protected concerted activity” because of racial injustice that took place at the store. A flooring department employee told Morales to monitor a Black customer because “people of Somali descent were more inclined than others to steal.” Workers had also complained about “racially discriminatory conduct.” The NLRB determined that Morales’ wearing of BLM messaging was a “logical outgrowth” of these prior group concerns. Accordingly, the NLRB found that Home Depot broke the law by interfering with employees’ Section 7 rights when it fired Morales.
The NLRB’s decision is contrary to previous decisions by lower NLRB judges about BLM messaging on employee uniforms. Those decisions had found that companies could fire employees who had worn BLM messages in violation of uniform policies. The new Home Depot decision may be factually different because there had been group concerns raised regarding race issues at the store, and wearing BLM messaging was more connected to protesting working conditions.
In other cases (like the Whole Foods case), the employees had been making more general statements about their support for the BLM movement which were not tied to working conditions. Whole Foods had informed employees that they were violating the store’s dress code by wearing BLM items. The administrative law judge in that case ruled that the workers’ BLM insignia was not protected because they were merely showing solidarity with the BLM societal movement without any goal related to their working conditions at the store.
What does this mean for you? When you are writing and enforcing your uniform policy, you will need to consider whether any “protected concerted activity” is at play. Activity is “concerted” when it involves group concerns of employees (i.e. it is for their mutual aid or protection), related to the terms and conditions of their employment. Concerted activity may also include efforts to prepare for, or attempt to, induce group action.
College Basketball Players May Be Employees
An NLRB regional official recently ruled that Dartmouth College basketball players are “employees” of the school. The dispute started when members of the Dartmouth men's basketball team signed a petition asking to join Local 560 of the Service Employees International Union. Unionizing would allow the players to negotiate over salary, working conditions, practice hours and travel.
This ruling could allow the players to hold an election to accept a union. The NLRB regional director decided that: "Because Dartmouth has the right to control the work performed by the Dartmouth men's basketball team, and the players perform that work in exchange for compensation, I find that the petitioned-for basketball players are employees within the meaning of the (National Labor Relations) Act."
On the other side of this issue, the NCAA and universities have been arguing that their athletes are students, not employees. Dartmouth can still appeal the decision to the NLRB.
Another complaint before the NLRB in California claims that football and basketball players at the University of Southern California (USC) should be deemed employees of the school, the Pac-12 Conference and the NCAA. That hearing is ongoing.
The collegiate amateur sport model has been coming apart for a while. In 2021, the United States Supreme Court issued a decision that opened college sports up to some additional kinds of pay. This led the NCAA to allow players to profit from their celebrity to a greater degree.
What does this mean for you? Probably not much unless you work at a university. However, all employers need to be diligent about keeping employees happy if they want to avoid unionization. The Salt Lake Tribune recently reported that ski patrollers at Solitude Mountain Resort have filed a unionization petition to the NLRB. It also reported that employees of WinCo in South Salt Lake voted to unionize. Although Utah’s unionization rate is low compared to other states, there does seem to be an uptick in activity.
Are Your Employees Unhappy at Work?
Speaking of happy employees and unionizing, the Salt Lake Tribune recently reported about a new survey that found that tech and nonprofit employees are unhappy at work.
The report was released by BambooHR and is titled the Employee Happiness Index report. The report stated that overall, employee satisfaction was at a four-year low because of dissatisfaction among tech and non-profit employees. Apparently, employees in other types of jobs are getting happier. In particular, the report found that tech workers were unhappy due to layoffs and uncertainty around artificial intelligence. On the other hand, nonprofit workers are being asked to do more with fewer resources and are burning out.
On a high note, travel and hospitality workers were happier. Teachers were also happier.
Construction workers are consistently the happiest in their jobs, the report found, though not quite as happy as they were before the pandemic.
What does this mean for you? Quit your job and become a construction worker. Or, if you are in management or HR, think about how your company can improve happiness for employees. This could include conducting an internal survey or creating an employee relations committee.
Harassment Investigator Brings Lawsuit
A former employee of the Davis School district who was hired to investigate racial harassment for the school district brought a lawsuit against the school district alleging that she was a victim of racial discrimination. The former employee, who is Black, alleges that she was denied training and mentorship, was treated as a subordinate, received work criticism, was not referred to by her title and was terminated after a non-renewal of her contract. This case is just beginning. We will keep you updated.
