Browse recent news and blog posts related to employment law below. If you need employment related legal services or wish to browse our attorneys visit our Utah employment law practice page.

Labor & Employment

LABOR & EMPLOYMENT


PRACTICE AREA / UTAH EMPLOYMENT ATTORNEYS

Labor and employment laws affect every area of a business. Our employment lawyers represent large and small businesses in court, during investigations and throughout the mediation process. In addition, we prepare all documents and contracts necessary to run your organization.

UTAH EMPLOYMENT LAW



We represent our clients in all federal, state and appellate courts and administrative agencies when disputes arise involving employment or workplace claims. Our employment lawyers offer both consulting and litigation services to meet all of our clients’ needs.

Documents & Contracts

  • Employment Agreements
  • Non-Competes
  • Sales Contracts

Internal & External Investigations

  • Civil Rights
  • Harassment
  • Retaliation
  • Wage & Hour

Mediation & Litigation

  • Internal Dispute Resolution
  • External Business Negotiations

Audits, Compliance & Training

  • In-house Employment Training
  • Documentation Evaluation
  • Employment Law Compliance Review

RECENT EMPLOYMENT LAW UPDATES





EMPLOYMENT ATTORNEYS AT RICHARDS BRANDT IN SALT LAKE CITY



Documents & Contracts

There is a time and place for written agreements, employers are asked to put ideas and commitments in writing almost daily. As an employer, you have to be aware of the legal risks and requirements of employment contracts, severance agreements, sales contracts and commissions’ agreements.

Employment documents are essential at every stage of the employment process beginning with posting an open position, during the interview process, throughout the employment relationship, and at the time of termination. Employment forms, such as applications, background check authorizations, non-disclosure agreements, as well as all written and verbal terms and conditions of employment may require specific documentation. These documents have a place in the employment file. Laws surrounding employment records and access to these records vary by state.

Hiring consultants and independent contractors sets up a unique employment situation, all agreed upon terms should be made in writing. In many cases signed non-solicitation and confidentiality agreements will protect your company’s trade secrets

An attorney should review any document that both you and your employee/contractor sign, especially those that dictate the terms and conditions of your professional relationship and/or compensation.

Internal & External Investigations

Employment investigations, regardless the issue, must be managed carefully. Employers are frequently required to conduct investigations of misconduct in the workplace. Independent, prompt and thorough investigation of a harassment or discrimination claim is crucial. An incomplete, inaccurate or biased investigation can actually aggravate the problem and increase the employer’s potential liability.

Our experienced employment attorneys will guide you through the investigation process or can perform the investigation at your direction.

Internal theft, drug abuse, workplace violence, sexual harassment, discrimination, fraudulent workers’ compensation claims, and other issues impact a company’s financials, as well as morale, productivity, and your company’s reputation. We will work with you throughout the investigation or at any point in an investigation to achieve a favorable outcome.

We have successfully represented our clients in a wide range of employment cases including:

  • Non-Compete
  • Privacy in the Workplace
  • Statutory and Common Law Claims
  • Trade Secrets
  • Unemployment
  • Wage and Hour Claims
  • Sexual and Other Workplace Harassment
  • Civil Rights & Discrimination (race, religion, disability, gender, etc.)
  • Drug/Alcohol Use in the Workplace
  • Threatening or Violent Behavior
  • Theft of Property
  • Employee/Supervisor Misconduct
  • Retaliation
  • ADA Compliance
  • Sexual Harassment
  • Workplace Safety
  • Hiring Procedures
  • Corrective Action and Termination
  • Contesting or Using Performance Appraisals against an Employer

Assistance with Difficult Terminations

One of the more difficult responsibilities an employer has is to terminate an employee. Although the laws are written to protect the majority of employees in this country, employers have a strong position under the law to hire and fire whomever they want, for any reason–not protected under the law–or for no reason at all. Distinguishing in and among these laws is tricky. If you have a question about the circumstances of a termination, call us directly, in many cases, we can answer your question in just a few minutes.

Mediation & Litigation

It is always best to resolve a conflict quickly and with little disruption to your business. Often time’s mediation will not only result in a mutually satisfactory compromise but it also allows all parties to be heard. Employees who want to be heard appreciate working with a mediator to resolve an issue with their employer. We have successfully helped companies mediate issues with employees so all parties are able to get back to the business at hand, often in a more productive work environment.

Mediation as well as arbitration are also effective when your company needs representation to respond to a complaint filed against your company or one of its supervisors. We have worked with the EEOC, Labor Commission, Department of Human Rights, DOL, OSHA and USCIS to resolve employment related issues. We have negotiated settlements and reduced fines for our clients.

If the decision is made to go to court, your company’s best chance at winning the case is to have one of the most experienced trial attorneys in Utah. Our attorneys have been working on behalf of employers in the intermountain west for decades.

Audits, Compliance & Training

Auditing employment records can be as easy as doing a quick spot-check to be sure you have the necessary documents in place, we also perform detailed examinations of those documents to ensure your company is in compliance with the applicable laws. Enforcement agencies can audit almost any issue or subject matter. Our systematic and independent examination of data, documents, records, and employment practices is a critical step in creating a strong defensible position for your company. Equally important, an audit assures stakeholders that you have taken every step to evaluate and improve the effectiveness of your risk management plan.

Compliance does not only mean conforming to a rule, policy, regulation or law, it is also a tool for attracting and retaining employees. Employers who provide the best places to work, regardless of industry, generally have the most productive employees. Employees want a safe workplace, want to be able to count on their supervisors and want the company’s rules and guidelines administered consistently.

Regulatory compliance is a goal that every company strives for; complying with relevant laws and regulations creates an environment where supervisors and employees can be successful. This is difficult with the increasing number of regulations companies are expected to follow, especially when those laws conflict with each other. Our attorneys approach compliance with consideration for your business; regulations can be met without the unnecessary duplication of effort and activity from your limited resources.

Ongoing training and reinforcing specific guidelines is necessary for your employees’ success and makes up a significant portion of regulatory compliance under the law. Training is the acquisition of information, skills, and competencies as a result of receiving information that relates to specific useful knowledge. Our attorneys work with you to identify what your supervisors and employees need to know to be successful, and practices they must adopt in order to protect the organization as a whole.

FREQUENTLY ASKED QUESTIONS (FAQS)



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE / FEATURED FAQS



Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE – CASE STUDIES





Utah Manufacturing Company Needed Employment Contracts For Key Staffers




Utah Construction Company Needed Planning For Business Growth & Protection




Utah Family Enterprise Needed Guidance and Representation to Sell Business

REVIEWS




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Utah One of the Leading States for Advanced Industries Employment

advanced industries employment

February 2015

A recently released report from the Brookings Institution entitled “America’s Advanced Industries: What They Are, Where They Are, and Why They Matter” highlights the strength and diversity of Utah’s economy. The report defines an industry as an “advanced industry” if it meets two criteria: 1) the industry spends heavily in research and development (R&D spending per worker in the 80th percentile or higher or more than $450 per worker); and 2) the industry employs workers with a high degree of STEM (science, technology, engineering, and math) knowledge above the national average of 21% of all workers. Using these criteria, the authors of the report identified 50 industries that invest heavily in research and development and employ highly skilled workers. These 50 industries include manufacturers, energy providers and service providers in a variety of industries, such as aerospace products and parts, motor vehicle-related manufacturing, computers and peripheral equipment, chemical products, energy industries, computer systems design, data processing and hosting, and software publishers. Many of these industries are developing “disruptive technologies” that are redefining both the workplace and our daily lives.

Overall, the State of Utah was one of only seven states where more than 10% of the workers are employed in advanced industries. And the Salt Lake City, Provo-Orem, and Ogden-Clearfield metropolitan areas were all ranked in the top 15 among large metropolitan areas with the highest percentage of advanced industries employment. While Utah’s three largest metropolitan areas are among the leaders nationwide in advanced industries employment, the composition of that employment differs from region to region. Ogden-Clearfield’s advanced industries employment was geared more towards manufacturing industries, with Ogden ranking as one of the five areas most specialized in advanced manufacturing industries. Conversely, Provo-Orem, with a large number of technology companies contributing to its reputation as the Silicon Slopes, is one of the five areas with the highest concentration of advanced services industries. The report also identified Provo-Orem as one the fastest growing areas in the advanced industries area. Finally, Salt Lake City had a more diversified industry base, reflecting a mix of both manufacturing and service industries.

The importance of these industries to Utah is evident in its impact on the Utah economy. While responsible for more than 10% of all jobs in the State of Utah, advanced industries account for more than 18% of the total output for the state, exceeding $24 billion in 2013. The advanced industries in Utah also indirectly support another 100,000 jobs in Utah, or more than 8% of Utah’s total employment.

The Executive Summary and the Full Report, along with interactive data and support tables, are available at http://www.brookings.edu/research/reports2/2015/02/03-advanced-industries#/M10420. Summaries of employment, output, and growth for the State of Utah and the Salt Lake City, Provo-Orem, and Ogden-Clearfield metropolitan areas are attached.

PDF – Provo UT – Advanced Industries Analysis

PDF – Utah – Statewide Advanced Industries Analysis

PDF – SLC UT – Advanced Industries Analysis

PDF – Ogden, UT – Advanced Industries Analysis

Steven Bergman is a Shareholder and Attorney with the law firm of RBMN, specializing in business law, real estate law, and appeals.

The “Gang of 8” Senators Release the Border Security, Economic Opportunity and Immigration Modernization Act of 2013

Gang of 8 Senators

April 2013

After months of debate, negotiations and speculation, the “Gang of 8,” made up of eight Republican and Democratic senators charged with the task of composing an immigration reform bill, has released its much-anticipated proposal. On Wednesday, April 17, the 844-page bill (titled the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013“) was filed in the Senate. The bill represents some significant compromises between the two major parties and reflects the changed political landscape surrounding immigration reform in the wake of last November’s election.

Here is a brief overview of some of the key provisions of the bill:

Border Security

The Department of Homeland Security must create, fund and implement a border security and fence plan. Within 10 years of the bill’s enactment, all employers in the United States must be using E-Verify. A visa exist system must be implemented at all international airports and seaports.

Jobs

The bill seeks to protect American workers from losing much-needed jobs to immigrants. The bill would not allow any work visas to be issued if the unemployment rate in a certain area is above 8.5 percent. Foreign students will get a “green card stapled to their diplomas.” The number of available H1-B visas will be nearly doubled. However, certain categories of family visas such as siblings and adult, married children of citizens will be eliminated.

The Guest Worker Program will be “modernized.” A new agricultural guest worker visa program will be established, which will allow some current undocumented agricultural workers to obtain legal status through an Agricultural Card Program.

Pathway to Citizenship

The bill proposes a long and arduous “pathway to citizenship” for the estimated 11 million people living in the United States illegally. No undocumented immigrant is eligible to apply for this temporary status until the border security measures are in place. Once the first security triggers are achieved, undocumented immigrants will be able to come forward, pass background checks, be fingerprinted, pay $2,000 in fines, pay taxes, prove gainful employment, and prove they have been in the U.S. since 2011, among other criteria. Those who have a serious criminal history or do not meet the above criteria will be deported.

Undocumented immigrants will not be eligible for federal benefits during this time, including benefits under “Obamacare.” Undocumented immigrants will have to prove they can support themselves and are not dependent on the government by verifying that they earn at least 25 percent above the poverty level and are gainfully employed.

Certain immigrants who were deported will be allowed to return to the United States if their spouse and children are still living in the United States.

The Dream Act

The bill contains a version of the Dream Act, which would allow young undocumented people whose parents brought them to the U.S. illegally or overstayed visas to be eligible for permanent residence in five years and citizenship immediately thereafter if they meet certain criteria.

The bill still has a long road ahead of it, and both conservatives and immigration reform proponents have already begun attacking the bill. However, many would agree that this is the closest the country has come in years to meaningful immigration reform. Let the debates begin!

Contact Barbara Melendez or Kristina Ruedas for more information.

Employee Record Retention and Destruction

January 2013

The beginning of a calendar year is a good time for employers to review their document retention status. All employers should establish and maintain a clear record retention policy identifying the location of records, a reasonable schedule of retention and destruction, and a records administrator.

Documents related to employee recruitment and selection, such as job advertisements, resumes, job inquiries and records of refusal to hire should generally be retained for one year. 29 U.S.C. § 626; 29 C.F.R. § 1627.3 (Age Discrimination in Employment Act). Once an employee is hired, EEOC regulations require employers to keep all personnel or employment records for one year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination. 42 U.S.C. §2000e-8(c); 29 C.F.R. §1602.14 (Title VII of the Civil Rights Act of 1964). Separate personnel files should be maintained for each employee.

Employers must maintain pay and promotion records for a period of three years, and must keep all records that would explain the basis for employee wages for a period of two years. (EEOC Recordkeeping Requirements). Additionally, employers must keep a copy of all employee benefit plans and merit systems while in effect and for at least one year after termination of the plan.

Documents related to employee leaves of absence under the Family Medical Leave Act (FMLA) should be retained for three years. 29 U.S.C. § 2626; 29 C.F.R. § 825.500. Remember to keep medical records confidential and separate from the employee’s personnel file. I-9 Employment Eligibility Verification forms should be retained for three years from the date the record was made or a personnel action was taken, whichever is later. 8 U.S.C. §1324a(b)(3) (Immigration and Nationality Act). I-9 forms should also be stored securely and separately from the employee’s personnel file.

This touches on a few, but not all, federal statutes governing document retention. These are general guidelines only, and exceptions may apply. Once an employer is aware of a potential lawsuit or charge of discrimination, employers cannot destroy records related to the subject matter of the complaint for any reason until complete resolution of the matter has been reached, including any appeals.

Contact Mark McCarty or Kallie Smith if you need more information on employee record retention and destruction policies and practices.

Form I-9 Compliance Video Presentation

September 23, 2014

Complying with the rules and regulations under the Form I-9 enforced by USCIS.

In September 2012, 520 criminal work place enforcements and arrests took place. In September 2013, more fines were issued, in one case the government issued a $34m to settle systematic visa fraud and abuse. ICE is enforcing felony criminal charges. The Grand America was fined $2m for immigration violations.

Fines and penalties are expected to increase along with re-audits by ICE.

Correct your measures
Audit your forms
Train your employees
Execute I-9 compliance plan

 

2014 Executive Orders on Immigration Video Presentation

September 2014

President Obama decided to pursue Immigration Reform through Executive Orders. May hear something after November 5, 2014.

  • Work Permits for Parents of DACA
  • Work Permits for Agriculture
  • Increase Employment Related Visas
  • Extension for Foreign Nationals who Graduate from U.S.
  • Residency for Spouses of U.S. Citizens who Entered Illegally

 

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