Let the Games Begin—The Utah Legislature Is in Session
By Christina M. Jepson
The Utah Legislature is back in session. The 2026 Utah legislative session will begin on Jan. 20 and continue through March 6. Many bills will be proposed and only time will tell which will pass. It is early in the process but here are some of the proposed employment laws.
Will the Legislature Remove Gender Identity as a Protected Class in Utah?
You may recall that a number of years ago, the Utah Legislature added gender identity as a protected class under the Utah Antidiscrimination Act, Utah Code Ann. § 34A-5-106, et seq (the “Act’). This was part of a compromise that also added protections for religious beliefs. Representative Trevor Lee wants to undo just the gender identity protections. Representative Lee has proposed HB0183 which would remove all references to gender from the Utah code and gender identity as a protected characteristic under the Act. In addition, the law would allow employment referral agencies and labor organizations to discriminate on the basis of gender identity.
Will the Legislature Limit Non-Compete Agreements?
Utah legislators’ attempt to amend the noncompete statute almost every year and this year is no exception. Representative Tyler Clancy has proposed HB0203 which would provide sweeping limitations on non-compete agreements. This proposed law would prohibit enforcement of noncompete agreements if: (1) the employee is nonexempt under the Fair Labor Standards Act; (2) the employee is a student who is enrolled in a full-time or part-time undergraduate or graduate program while engaging in an internship or other short-term employment with an employer; (3) the employee is 18 years old or younger; (4) the employee’s totaling earnings in the most recent calendar year are less than $155,000; (5) the employer terminates the employee without cause; (6) the noncompete agreement restricts an employee’s ability to work more than 25 miles from a specific geographic location; or (7) the worker is an independent contractor.
In addition, under the proposed law, if a non-compete agreement is included with an offer of employment, the employer would be required to:
- present the non-compete agreement in a way that a reasonable individual would understand;
- provide, in the offer of employment or contract, a statutory reference to the noncompete law;
- include a garden leave clause in the non-compete agreement providing that the employer agrees to continue to pay an employee 100% of the employee's annual compensation for the year in which the non-compete agreement is in effect; and
- present the garden leave clause in a way that a reasonable individual would understand.
Finally, the proposed law creates a right of action for an employee or independent contractor when an employer seeks to enforce a non-compete agreement that violates the law. In such an action, if the court finds that the non-compete agreement violates the law the court would be required to award the employee: (1) actual damages; (2) injunctive relief; (3) costs associated with arbitration; and (4) reasonable attorney fees.
Will the Legislature Protect Employees Who Cooperate with ICE?
As you know, the U.S. Immigration and Customs Enforcement (ICE) is ramping up its aggressive enforcement of immigration laws. This includes rounding up undocumented workers in their workplaces. Many employers have responded by advising their employees about their rights when ICE comes knocking. Representative Lisa Shepherd has introduced H.B. 244 which addresses cooperation with ICE.
This proposed law makes it illegal for an employer to request or prohibit an employee or applicant from voluntarily cooperating with a law enforcement officer. Employers are also prohibited from taking adverse action against an employee who voluntarily cooperates with law enforcement. However, this section " does not prevent an employer from requiring an employee to protect, or agree to protect, a legal right held solely by the employer in the context of an employee's voluntary interaction with a law enforcement officer in the course and scope of the employee's employment."
A law enforcement officer is defined as an "employee of a law enforcement agency . . . whose primary and principal duties consist of the prevention and detection of crime and the enforcement of criminal or immigration statutes or ordinances of the federal government, this state, or a political subdivision of this state."
Political Speech Continues to Cause Problems for Employers and Employees
Our country is politically divided and those divisions often play out on social media. It is easy to stake your ground on social media and casually (or not so casually) throw in your two cents. Companies typically don’t care what their employees say in these echo chambers . . . until they do. A stray comment can take on a life of its own and creep into the workplace.
As one recent example, after the assassination of Charlie Kirk in Utah, a number of employers fired employees who made comments on social media about the assassination or about Charlie Kirk’s political beliefs. One of these cases took center stage in Tennessee. Austin Peay State University fired a tenured theatre professor, Darren Michael, for allegedly making an insensitive social media post about Mr. Kirk. Following the assassination, Professor Michael shared a Newsweek article from two years earlier on Facebook which talked about a mass shooting at a school in Nashville, Tennessee. The shooting left six people (including three children) dead and Charlie Kirk commented at the time that gun deaths were part of the reality of the Second Amendment. The article’s headline read: “Charlie Kirk Says Gun Deaths ‘Unfortunately’ Worth It to Keep 2nd Amendment.” Other than sharing the article which contained comments by Mr. Kirk, Professor Michael made no further comments.
Professor Michael’s post angered certain conservatives including Senator Marsha Blackburn of Tennessee. She called out the Facebook post stating, “What do you say, Austin Peay State University?” and tagged the school. That same day, the University fired Professor Michael. The University released a statement that Professor Michael had been fired for comments that were “insensitive, disrespectful and interpreted by many as propagating justification for unlawful death.” Professor Michael’s lawyer pushed back, pointing out that Professor Michael simply shared an article which contained Mr. Kirk’s own statements about gun violence. Professor Michael asserted that his due process rights were violated.
The University just settled with Professor Michael for $500,000 and put him back to work. While Professor Michael is back at work, employers still have to continue to deal with similar situations. When faced with political speech from employees, employers must look to state and federal law to determine if the speech is protected. For example, Utah’s Antidiscrimination Act provides that “an employer may not discharge, demote, terminate, or refuse to hire any person . . . for lawful expression or expressive activity outside of the workplace regarding the person’s religious, political, or personal convictions . . . unless the expression or expressive activity is in direct conflict with the essential business related interests of the employer.” 34A-5-112(3). However, each state is different and each situation is different.
Question Corner: Sick Leave Without an FMLA Form – Is Termination an Option?
By Kate Wheeler Peterson
Q. If an employee takes sick leave but hasn’t completed and returned an FMLA form, can the employer lawfully terminate employment?
A. Under the Family and Medical Leave Act (FMLA), employers are permitted to require medical certification in support of an employee’s request for leave due to serious health conditions. The request for medical certification must be in writing and needs to notify the employee of the deadline for replying (no less than 15 days) and the consequences of failure to provide the requested information. If additional information is required from the employee to make the certification complete, the employer must provide written notice of the deficiency and allow the employee another seven calendar days to resolve it. Where the employee is already on leave, it is recommended to request the certification within five days. Unless the employee demonstrates a good-faith effort to comply and shows that circumstances beyond the employee’s control prevented timely submission of a complete and sufficient certification (for example, delays attributable to the health care provider or condition itself), the employer may then deny the uncertified request for FMLA leave. The employer may then treat the absence in accordance with its established attendance, sick leave, or other applicable leave policies and discipline accordingly—even terminate the employee if appropriate under such policies.
