OnTheJob News 3rd Quarter 2016

On The Job Newsletter

Utah Labor Commissioner Sherrie Hayashi

Commissioner Hayashi's Farewell

In July 2016 Commissioner Sherrie Hayashi began a new chapter in her legal career, accepting a position with the University of Utah as the Director of the Office of Equal Opportunity and Affirmative Action. Sherrie was appointed Commissioner of the Utah Labor Commission by Governor Jon Huntsman in 2006. She served as Commissioner from 2006 through 2016. Prior to her appointment as Commissioner, Sherrie worked for the Commission as Legal Counsel, an Assistant Attorney General, and Division Director for the Utah Antidiscrimination and Labor Division.

Sherrie has been active in public service throughout her career. In 2000 she was awarded the Raymond S. Uno award, which recognized her work for the advancement of minorities in the legal profession. She also dedicated her time to establishing the Multicultural Legal Center, a non-profit legal services organization. She was a board member of several organizations that promote the advancement of minorities in Utah. Sherrie was also involved in the creation of a museum in Delta, Utah, to remember those Japanese Americans that were interned in the Topaz, Utah, camps during World War II.

Sherrie’s service and dedication to the Commission, its employees, and the people of Utah will be greatly missed. The Commission wishes her the very best as she begins this new facet of her career.

Equal Employment Opportunity Commission seal

EEOC Select Task Force Study of Workplace Harassment

In June, a Select Task Force of the Equal Employment Opportunity Commission (“EEOC”) issued a long-awaited and extensive report on harassment in the workplace. The Task Force was comprised of 16 members from around the country, including representatives of academia from various social science disciplines; legal practitioners on both the plaintiff and the defense side; employers and employee advocacy groups; and organized labor. Over the course of the year, the Task Force held a series of both open and closed meetings, received testimony from more than 30 witnesses and numerous public comments. The Task Force focused on conduct which might not be “legally actionable” but if left unchecked, may set the stage for unlawful harassment, and included harassment based on all of the protected classes: sex, race, disability, age, ethnicity/national origin, color and religion.

The Task Force determined that workplace harassment remains a persistent problem, with nearly 1/3 of the 90,000 charges filed with the EEOC in 2015 including harassment allegations. It also found that workplace harassment often goes unreported: roughly 75% of individuals who experience harassment never talk to a supervisor, manager or union representative about the harassing conduct.

Based on the data, the Task Force found a compelling business case for stopping and preventing harassment. When employers consider the costs of workplace harassment, they often focus on legal costs, and with good reason: last year, EEOC alone recovered $164.5 million for workers alleging harassment. But workplace harassment first and foremost comes at a steep cost to those who suffer it, as they experience mental, physical and economic harm.

Rather than having training which focuses only on liability (the model that’s been used for the last 30 years), the Report recommends that employers focus heavily on prevention. Workplace civility training—which focuses on promoting respect and civility in the workplace generally—will help employers prevent harassment from happening in the first place. The Task Force also recommends new models of training such as bystander intervention training, a type of training used to combat sexual violence on school campuses.

The Report’s other recommendations include:

• Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted.

• Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.

• Employers should conduct climate surveys to assess the extent to which harassment is a problem.

• Employers should devote sufficient resources to harassment prevention efforts.

• Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction.

• Employers should offer reporting procedures that are multi-faceted, offering a range of methods and points-of-contact.

• Employers should periodically test their reporting systems to determine how well the system is working.

• Harassment training should be tailored specifically to the workforce and not be a “one size fits all” approach.

The Report includes useful checklists that employers can use to create a “holistic harassment prevention program” and an effective anti-harassment policy.

You can download a copy of the Select Task Force on the Study of Harassment in the Workplace Executive Summary and Recommendations here: https://www.eeoc.gov/eeoc/task_force/harassment/upload/report_summary.pdf.

HUD Gives Guidance on the Use of Applicants’ Criminal Histories in Housing Decisions

The U.S. Department of Housing and Urban Development (“HUD”) recently provided guidance on applying Fair Housing Act standards to a housing or real estate provider’s use of an applicant’s criminal history: H.U.D. Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr. 4, 2016) (“HUD Memo”). The HUD Memo states,

"A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate… [W]here a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such a policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect."

HUD’s guidance comes on the heels of the U.S. Supreme Court’s decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. The issue in that case was whether housing decisions with a disparate impact – having a disproportionately adverse effect on minorities – are prohibited by the Federal Fair Housing Act. Up to this point, the Fair Housing Act was interpreted to prohibit only practices leading to disparate treatment, where a “plaintiff must establish that the defendant had a discriminatory intent or motive.”

The Supreme Court held that the Fair Housing Act prohibits housing practices that lead to disparate impact, even though there may be no intent to discriminate. As part of its analysis, the Supreme Court considered the “results-oriented” language of the Fair Housing Act “otherwise make unavailable… a dwelling” which “refers to the consequences of an action, rather than the actor’s intent.” The Utah Fair Housing Act, modeled after the Federal Fair Housing Act, also includes “otherwise deny[ing] or mak[ing] unavailable a dwelling…” language.

In light of the Inclusive Cmtys. decision, the HUD Memo urges that exclusions based on prior arrest records are different than exclusions based on prior criminal convictions. It states, “a housing provider who denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.” But, “[i]n most instances, a record of conviction (as opposed to an arrest) will serve as sufficient evidence to prove that an individual is engaged in criminal conduct.” Still, “housing providers that apply a policy or practice that excludes persons with prior convictions must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest.” And the HUD Memo suggests that housing providers who apply a blanket prohibition on persons with criminal convictions will be unable to meet this burden.

Heber Wells office building

Office Enhancements Increase Efficiency

In an effort to enhance the productivity and efficiency of some of its essential functions, the Utah Labor Commission recently updated its cubicles and built three new offices and a mediation caucus room. The cubicle enhancement and office expansion project was split up into three phases. The first phase was completed in December of 2015, which updated all the cubicles within the Industrial Accidents and Adjudication divisions. The second phase, completed in August 2016, included the rearrangement of cubicles and construction of office structures. The final phase will construct one additional office and one additional mediation caucus room at some point in the future. While budgetary constraints required three separate phases in the project, the staging also allowed employees to continue to perform their duties with little to no down time and no effect on constituents who rely on the services the Commission provides.

The Commission and its stakeholders benefit from this office space upgrade in several ways. First, the project allows the divisions to better assist the public by adding space for an additional administrative law judge to more efficiently handle cases filed with the Utah Labor Commission. Secondly, it provides some designated space for workers’ compensation mediation conferences to help disputing parties reach an amicable resolution to their issues. In addition, the project creates new office space to allow a better and more efficient working environment for employees who provide important public functions. Furthermore, the enhancements fashioned more modern and esthetically pleasing work areas.

As Utah continues to grow as a state, it is imperative that state agencies become more productive and efficient and to do more work with fewer resources without sacrificing quality of services to stakeholders. The cubicle enhancement and office expansion project helps the Utah Labor Commission to do just that. The time frame for phase three of the project has not yet been set; however, Commission employees will continue to utilize the tools available to them in order to better serve the public.

scrabble tiles spell audit

FY 2015 Comprehensive Federal Annual Monitoring and Evaluation (FAME) Report

The FY 2015 FAME Report is a report which assesses the activities of the Compliance section of the Utah Occupational Safety and Health Division (UOSH) for the federal fiscal year 2015 (FY 2015), October 1, 2014 through September 30, 2015. The on-site audit was conducted the week of December 7, 2015, by seven federal OSHA Region VIII representatives. This audit and report is conducted every two years.

The on-site audit focused on a review of enforcement case files, a review of the whistleblower program and a review of the complaint process. The federal auditors reviewed 68 inspection files consisting of 55 safety-related cases and 13 health-related cases, 30 whistleblower cases and 30 complaints. The on-site audit also included interviews of Compliance Safety and Health Officers (CSHOs), management and an evaluation of the overall and specific financial aspects of the program.

The FY 2015 FAME listed two findings and eight observations. A finding is a result which necessitates a change or an improvement in a particular aspect of the program. An observation is a potential concern but does not necessitate any action to be taken. By way of comparison the FY 2013 FAME resulted in 11 findings and 11 observations.

The UOSH Compliance section takes great pride in the results of the FY 2015 FAME. The Executive Summary states, “It is apparent that the UOSH program has taken every opportunity to improve since the previous FAME visit . . .” and “In the brief time the current management team has been in place with UOSH, significant improvements have been made.”

The goal of UOSH is to help to ensure a safe and healthy workplace for every worker in the State of Utah. The results of the FY 2015 FAME indicate that the UOSH Compliance section is committed to this goal and is focused on continuing to improve internally so that it can achieve its mission.

The entire FY 2015 FAME as well as UOSH’s State Plan Formal Response to FY 2015 FAME can be found online at https://www.osha.gov/dcsp/osp/efame/utah.html.

Judge's gavel

Appellate Decisions

This quarter, the Utah Court of Appeals issued one decision involving a Utah Labor Commission case. The full text of this decision is available at www.utcourts.gov/opinions/. The decision issued by the court this quarter dealt with the Utah Workers’ Compensation Act.

Hutchings v. Labor Commission and Washington County School District (2016 UT App 160; issued July 29, 2016).

Ms. Hutchings was working for Washington County as a cafeteria worker when she lifted a box of food approximately 18 inches off the ground and pushed hard on the box to get it all the way onto a shelf in a storage freezer. As she pushed the box, Ms. Hutchings felt nauseated with pain in her low back. Ms. Hutchings did not seek treatment for low-back symptoms until more than three months after the accident. She was referred to Dr. Snook, who performed surgery on Ms. Hutchings’s lumbar spine to remove a cyst and decompress a nerve root. Postoperatively, Dr. Snook diagnosed Ms. Hutchings with degenerative disc disease and a synovial cyst encroaching on the nerve root, but noted that the disc at L4-5—which appeared to have an extrusion on the MRI results—was actually flat and without encroachment. Ms. Hutchings continued to have low-back symptoms and her treating physician attributed such symptoms to the work accident. Washington County’s medical consultant opined that Ms. Hutchings’s low-back condition was due to degeneration rather than the accident. The ALJ initially determined that the more stringent standard of legal causation applied to Ms. Hutchings’s claim and that her work activities in question did not meet the more stringent standard. Ms. Hutchings appealed to the Commission, which found that the more stringent standard of legal causation did not apply to the case and remanded it to the ALJ for consideration of the medical cause of Ms. Hutchings’s low-back condition. On remand, the ALJ referred the issue of medical causation to an impartial medical panel. The panel concluded that Ms. Hutchings’s current low-back condition was chronic in nature and not medically causally connected to the work accident. The ALJ relied on the medical panel’s opinion and denied Ms. Hutchings’s claim based on a lack of medical causation. The Commission affirmed the ALJ’s decision and Ms. Hutchings appealed the decision to the Utah Court of Appeals. The court explained that while the accident caused Ms. Hutchings to suffer a minor injury according to the regular standard for legal causation, she had not established that the ongoing low-back problems for which she claimed benefits were medically caused by the accident. The court therefore declined to disturb the Commission’s decision to deny Ms. Hutchings’s claim for benefits.