2016 Utah Legislative Session Employment Law Update
In its 2016 session, the Utah Legislature passed a handful of bills that Utah employers will need to take into account in their workplace policies and procedures. The three bills discussed below were passed by the legislature, signed by the Governor, and are scheduled to go into effect on May 10, 2016.
In addition to the following, the legislature passed the Post-Employment Restrictions Act and the Computer Abuse and Data Recovery Act. See our article, Utah Enacts New Laws Addressing Post-Employment Restrictions and Unauthorized Computer Use.
Amendments to Utah Antidiscrimination Act (SB 59)
Senate Bill 59 amends the Utah Antidiscrimination Act by adding new accommodation requirements. The Act already prohibits discrimination on the basis of pregnancy, childbirth, or pregnancy-related conditions. Now employers also may not refuse to provide reasonable accommodations that would not cause an undue hardship for pregnancy, childbirth, breastfeeding, or related conditions.
Employers may require health care provider certification of the need for a reasonable accommodation. However, such certification may not be required for what most employers would deem relatively minor accommodations of more frequent restroom, food, or water breaks. The Utah amendments to the Act follow the Equal Employment Opportunity Commission’s 2014 Enforcement Guidance on pregnancy issues (see EEOC Releases Demanding New Pregnancy Discrimination Guidance) and pregnancy accommodation requirements that have adopted in several other states. (See Delaware Mandates Pregnancy Accommodations; New Illinois Law Requires Employers to Provide Accommodations to Pregnant Employees and Applicants; Maryland Employers to Provide Pregnant Workers with Accommodation under New Law; Nebraska to Require Reasonable Accommodations for Pregnant Workers; New York State Clarifies Rights of Working Mothers.)
Employers are required to provide employees with written notice, either posted in a conspicuous place in the workplace or in an employee handbook, of the right to seek pregnancy-related accommodations. Accordingly, Utah employers should consider adding a pregnancy-related reasonable accommodation policy to their employee manuals and handbooks.
Franchisor Protections (HB 116)
Over the past few years, federal agencies such as the National Labor Relations Board have taken the position that franchisors can be held liable as “joint employers” with their franchisees. (See Congress Proposes Legislation to Overturn NLRB Ruling on Joint Employer Liability.) Indeed, in the NLRB’s “test case” on franchisor liability, an agency complaint brought against a franchisor and several of its franchisees is being actively litigated before an Administrative Law Judge of the NLRB.
No doubt in response to this aggressive litigation brought by the government, HB 116 amends several Utah statutes to state that a franchisor will not be deemed to be the employer of a franchisee’s employees so long as the franchisor is only exercising the “type or degree of control customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.”
Moreover, with an eye toward any future decisions by the NLRB or other federal agencies adverse to franchisors, the law also precludes Utah courts from relying upon federal administrative rulings in determining joint employer status, unless that administrative ruling is adopted by statute or rule or determined to be generally applicable by a court. Utah statutes amended by this bill include the Utah Payment of Wages Act, the Utah Antidiscrimination Act, and the Utah Employment Security Act.
Reporting of Child Pornography (HB 155)
House Bill 155 enacts new Section 76-10-1204.5 of the Utah Code, providing that a computer technician who views child pornography is required to report the finding of the image to a state or local law enforcement agency or the Cyber Tip Line at the National Center for Missing and Exploited Children. Alternatively, an employer may implement a procedure that requires a computer technician to report such images to an employer-designated employee, who then will make the report to the law enforcement agency.
A computer technician’s willful failure to report an image is a class B misdemeanor. The bill broadly defines a “computer technician” as an individual who in the course of his work “installs, maintains, troubleshoots, upgrades, or repairs computer hardware, software, personal computer networks, or peripheral equipment.” Thus, most, if not all, information technology (“IT”) employees will be covered by this new law. Employers with IT staff should both train those employees on the law and consider whether it makes sense to have a procedure by which all IT staff report any images to a single authorized employee.