Every year it said that each legislative session has its own unique personality. For the Labor Commission, in particular, the 2015 Legislative Session was truly extraordinary.
The majority of proposals impacted our Antidiscrimination and Labor Division addressing issues from living wage/minimum wage, tipped employees, and modifications to the Antidiscrimination Act, including the very high profile, SB 296 Antidiscrimination Modifications and Religious Freedom Amendments. SB 296 now provides protection in employment and housing from discrimination based upon sexual orientation and gender identity, and it also provides additional religious freedom protection both, within and outside the workplace.
The Utah Legislature also passed SB 111, Utah Occupational Safety and Health Amendments bringing state statute related to the enforcement of the multi-employer doctrine in line with federal law, after the Utah Supreme Court invalidated Utah's authority to enforce this doctrine in the past.
In reflecting on this session, healthy discussion and dialogue among diverse voices and varied interests led to challenging discussions and seemingly insurmountable hurdles. However, it was the willing collaboration of those with varied perspectives to reach a common goal of protecting the health, safety and economic well-being for all Utahns that led to legislative success this year.
2015 Legislative Session
The Utah Legislature enacted a number of bills during the 2015 Session that impact the Labor Commission to one degree or another. These bills enact changes to the workers’ compensation system, workplace safety, discrimination in housing and employment, and the payment of wages after a separation of employment. The effective date for these bills is May 12, 2015.
SB135: Workers’ Compensation Coverage for Firefighters. Under this bill, if a firefighter contracts cancer of the pharynx, esophagus, lung, or mesothelioma cancer, there is a rebuttable presumption that the cancer was contracted in the course of employment and was not contracted by a willful act of the firefighter. To be entitled to this presumption, the firefighter must have undergone annual physical examinations while employed as a firefighter, been employed as a firefighter for eight years and regularly responded to firefighting or emergency calls during that time period, and, if the firefighter used tobacco, the firefighter must provide documentation from a physician that indicates the firefighter has not used tobacco for the eight years prior to reporting the presumptive cancer to the employer or the Division of Industrial Accidents. This presumption may be rebutted under a preponderance of the evidence standard.
Occupational Safety and Health
SB111: Occupational Safety and Health Regulation. In 2013, the Utah Supreme Court invalidated Utah OSHA’s ability to enforce the multi-employer worksite doctrine in Hughes General Contractors, Inc. v. Utah Labor Commission, Occupational Safety and Health Division. The Supreme Court found Utah’s law did not sufficiently mirror the federal law and that Utah had never adopted the federal regulations necessary to enforce the multi-employer worksite doctrine. The Court also stated that the federal law allowed for enforcement of the doctrine.
The Commission worked closely with Utah industry to remedy this situation. SB111 adopts the specific language contained in the federal regulation and also includes rulemaking authority for the Commission to enact rules for multi-employer worksites. Utah industry also participated in drafting an administrative rule that describes the implementation and enforcement of the multi-employer worksite doctrine in Utah. This rule will be adopted as soon as the bill becomes effective.
Employment and Housing Discrimination
HB105S01: Antidiscrimination Modifications. This bill modifies the Utah Antidiscrimination Act by clarifying that “pregnancy, childbirth, or pregnancy-related conditions,” conditions currently protected by the Act, includes breastfeeding or medical conditions related to breastfeeding.
SB296: Antidiscrimination and Religious Freedom Amendments. This bill modifies the Utah Antidiscrimination and Fair Housing Acts to prohibit discrimination in employment and housing related to gender identity and sexual orientation. It also modifies the exemptions to the Acts. The bill also provides that employers can adopt reasonable dress and grooming standards so long as those standards are not prohibited by state or federal law and the standards afford reasonable accommodations based on gender identity to all employees. The bill also provides that employers may adopt reasonable rules and policies designating sex-specific facilities (restrooms, shower facilities, and dressing facilities) so long as the rules and policies afford reasonable accommodations based on gender identity to all employees.
SB296 also provides that employees may express religious and moral beliefs in the workplace in a reasonable manner on equal terms with similar expressions allowed by the employer and that employers may not discharge, demote, refuse to hire, retaliate, or discriminate against an individual based on expressions of religious, political, or personal belief outside of the workplace.
Payment of Wages
SB272: Payment of Wages Amendments. This bill clarifies that an employer satisfies the statutory requirement to pay a separated employee’s wages within 24 hours, by mailing the wages one day after the final day of employment, initiating direct deposit, or hand delivering the wages to the employee within 24 hours of the separation of employment.
Utah Supreme Court Case Impacts the Wage Claim Unit
On January 30, 2015, the Utah Supreme Court issued a decision that directly impacts the scope of the Wage Claim Unit's enforcement of the Utah Payment of Wages Act. In the decision, Heaps v. Nuriche, LLC (2015 UT 26), the Supreme Court faced the issue of whether the Payment of Wages Act imposes personal liability on the managers of an LLC.
The facts leading up to the Court's decision are as follows: in 2008, two individuals set up an LLC that later failed to pay wages. The managers of the LLC refused to pay the individuals' wages when they were terminated in 2011. The employees filed a complaint for failure to pay wages due under the Payment of Wages Act, and the case eventually reached the Supreme Court.
One of the issues faced by the Court was whether the Payment of Wages Act can impose civil or criminal liability on individual managers of LLCs. The Court looked to the definition of "employer" as defined in the Payment of Wages Act, which reads:
'"Employer" includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this state, and any agent or officer of any of the above-mentioned classes, employing any person in this state.'
Utah Code § 34-28-2(1)(c) (emphasis added). In interpreting the definition of "employer" in the Payment of Wages Act, the Court looked to the statute's plain language. The Court reasoned that the language, "employing any person in this state," modifies the terms that precede it, thus resulting in a narrow definition of "employer." The Court indicated that agents and officers are, by definition, not employers unless they directly employ any individuals. Applying this reasoning to the facts, the Court concluded that because the managers of the LLC did not personally employ the individuals who filed the complaint, then the managers could not be held personally liable for any unpaid wages under the Payment of Wages Act.
The Heaps decision has resulted in the Wage Claim Unit reevaluating its process to ensure that it complies with this new law. How the Court decision will impact the Wage
Claim Unit, however, remains to be seen.
Employer Pleads Guilty, Agrees to Pay Unpaid Wages to Former Employees
On March 27, 2015, Michael Vigil, the former owner of Salt Lake Valley Protective Agency, pled guilty in district court to criminal charges and agreed to pay back wages to his former employees. The Attorney General's Office charged Mr. Vigil with, among other criminal charges, theft of services for intentionally failing to pay wages to his employees. Mr. Vigil's guilty plea and restitution represent the culmination of an extensive, collaborative effort between the Labor Commission and the Attorney General's Office.
Between 2008 and 2011, approximately 70 former employees of Salt Lake Valley Protective Agency each filed wage claims with the Labor Commission. The Commission investigated each of these claims, and subsequently, the Attorney General's Office became involved. The Attorney General's Office filed criminal charges against Mr. Vigil, whose trial started on March 25, 2015. The total amount of unpaid wages to be paid by Mr. Vigil exceeds $100,000.
Litigate or Mediate? Mediation as an Alternative to the Courtroom
Mediations are an opportunity for the parties to resolve their differences themselves. In other words, mediation resolves disputes through the assisted exercise of a power which most parties don’t even realize they have until they no longer have it: the power to determine their own outcome by reaching a mutually acceptable resolution of their dispute.
The process is informal, and participation is completely voluntary. Mediation is a no-risk proposition since the parties have the option of attempting to resolve their issue first, without giving up any right to proceed to investigation, litigation or other administrative processes.
A skilled mediator facilitates communication, encourages exchange of information and ideas, tests the reality of parties perceptions and ideas, advises, suggests, translates what is said to detoxify the emotional climate, and at times recommends and persuades—all in the service of assisting parties to reach their own agreement.
Benefits of mediation include:
• Early resolution. • Parties control the outcome. • Reduces expenses of both parties. • Aids in discovering strengths and weaknesses of both sides. • Allows for flexibility and creativity in finding a mutually agreeable resolution. • Less stress for the parties since mediations are less formal and intimidating than court. • Personal empowerment. People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them.
Preparing for a successful Mediation
• Be prepared to explain your position regarding the dispute. • You may bring documentation to support your position; however, it is not necessary for you to do so. • Be prepared and willing to discuss a resolution of the dispute. • Companies: It is imperative that you have a representative present who has been given full authority to discuss and approve settlement.
Whatever your dispute, (unpaid wages, employment discrimination, workers compensation coverage, industrial accidents, unsafe working conditions), skillful and talented Labor Commission mediators are available to help. For more information about the various mediation services that the Commission provides, please contact us at 801-530-6800.
Utah OSHA - Local Emphasis Program for Amputations
In an effort to reduce specific risks to workers in various industries, federal OSHA, as well as Utah OSHA, implement emphasis programs. These programs feature a combination of enforcement and educational outreach for employers whose workers face certain industry-specific hazards.
Depending on the scope of the emphasis programs, they are known as national emphasis programs (“NEPs”), regional emphasis programs (“REPs”) or local emphasis programs (“LEPs”). Emphasis programs fall under the category of “Programmed Inspections” and they are focused at specific high hazard industries, workplaces, occupations, heath substances, or other industries.
Last year, Utah OSHA implemented an LEP for amputations, which went into effect on November 1, 2014 (Directive No.: 2014-002). The Amputation LEP applies to general industry workplaces identified, and it expires on October 31, 2019, but may be renewed as necessary. The goal of the Amputation LEP is to reduce amputation injuries by focusing on workplaces with machines that cause or are capable of causing amputations, as well as workplaces where amputations have occurred.
It is a known fact that the operation of machinery and equipment can be extremely dangerous, and our inspection history indicates that compliance with machine guarding and hazardous energy control standards needs to be improved throughout industry. Injuries involving machinery and equipment often result in death or permanent disability of workers due to failure to properly apply machine guarding techniques, and to adequately control associated energy hazards during servicing and/or maintenance activities, and are the primary cause of amputations.
Using local government sources, telephone directories, trade manuals, and other available sources, Utah OSHA has developed an inspection scheduling list of establishments that meet the requirements for inspection under this LEP. To help in developing the inspection scheduling list, certain industries, selected by their NAICS codes (see Amputation LEP for the specific list of NAICS codes), were used. Once the establishments were identified, they were arranged in alphabetical order and put through an internet-based randomized sequence generator. The first twenty-five establishments were then assigned to Compliance Safety and Health Officers (CSHOs) for inspections to be conducted. Once inspections on this group of establishments are completed, the process will be repeated to identify the next group of establishments to be inspected.
Our specific focus for all inspections under this LEP will be comprehensive machine guarding and lockout/tagout (LOTO) inspections, with the primary purpose of identifying amputation hazards. Additionally, all inspections will include an evaluation of any equipment that may cause an amputation and will focus on hazards associated with power presses, saws, shears, slicers and other machines identified in the Amputation LEP.
Outreach and training are an important component for the successful implementation of the Amputation LEP. Our Compliance Officers and Consultants have been involved in training and outreach with various groups and associations and presentations have been made at different conferences, as well as industry events to educate people about the Amputation LEP and its purpose.
Ultimately, Utah OSHA believes that the Amputation LEP will have a positive impact on the safety and health of workers, and will help to reduce amputation injuries while maximizing the effectiveness of our inspection resources.
Recently, the National Council of Compensation Insurance (NCCI) released a mobile application called "Workers Compensation Coverage Verification" (WCCV) which interfaces with NCCI’s on-line information in order to verify workers’ compensation insurance coverage. This is the same information obtained through our “CompCheck” link on the division’s web page.
The Coal Mining Industry and State Government "A Good Partnership"
This is just one of many stories of a coal miner, a mine disaster, and what the Labor Commission and mining industry have done to ensure that miners can work, be safe, and provide for a profitable future to one of the state's oldest occupations.
On December 19, 1984 a young Art Bruno was working as the Executive Director of Maintenance for Emery Mining Corporation, and had the overall responsibility for three mines that Emery Mining Corporation managed and Utah Power and Light owned: Wilberg, Deer Creek, and the Des-Bee-Dove mine. It was on that day that he witnessed one of the worst coal mine disasters in the nation's history. An air compressor at the Wilberg mine had been operating with two defective safety devices, and it started a fire which ultimately killed 27 mine workers. This tragedy had a profound effect on Art's attitude toward mine safety, accident prevention, training, and mine system design.
In 1987, the Division of Boiler, Elevator and Coal Mine Safety had an opening on the Miner Certification Panel and without much hesitation, Art began his dedicated voluntary service with the state of Utah on the Safety Division's Miner Certification section. Art ultimately retired from the Certification Panel in January 2015 with a total of 28 years of exemplary service.
Prior to and during his voluntary service to the Labor Commission, Art worked for 30 years in many of Utah's underground coal mines, and after he retired from the mines he opened his own business, Bruno Engineering. We all know that starting and running a small business requires a 24/7 commitment, but Art still made a point to be at every miner certification exam that the Labor Commission administered, and rarely missed the opportunity to serve on the panel at the exams.
During Art's tenure, he developed and constructed the electrical circuit board that is still being used in the examination process for the certification of underground and surface mining electricians. As a member of the Miner Certification Panel, he rewrote all of the testing sections for the underground and surface electrical exams, and also composed the study guides for all 5 Certification exams that the Labor Commission administers. This includes not only both electrical certifications, but also Fire Boss, Surface Foreman and Underground Foreman. Art's electrical knowledge and experience has been invaluable for the industry, and he gladly shares that knowledge with as many people as he can. He has made a personal dedication of his time, knowledge and experience to the education, training, and safety of all coal miners and electricians.
Thanks to Art's help, contributions and dedication, the Utah Coal Miner Certification process is now considered one of the best, if not the best, in the nation.
Through this very special partnership, once again the State of Utah, through its industry partnerships can and will create a safe and profitable environment for employers and employees alike.
This quarter the Utah Supreme Court and the Utah Court of Appeals issued four decisions involving Labor Commission cases. The full text of these decisions is available at www.utcourts.gov/opinions/. The decisions issued by the courts this quarter dealt with the Utah Workers’ Compensation Act and the Utah Antidiscrimination Act.
Mr. Reitz claimed workers compensation benefits for injuries he sustained when he fell from a ladder while working for Hilti, Inc. Before his claim could be fully adjudicated, Mr. Reitz passed away and his claim was pursued by Ms. Shimoda. The medical aspects of the claim were referred to an impartial medical panel, which concluded that Mr. Reitz sustained only temporary injuries from the work accident. The ALJ and the Commission relied on the medical panel’s opinion and denied the claim based on the lack of a medical causal connection between the accident and Mr. Reitz’s condition prior to his death. Ms. Shimoda appealed the Commission’s decision before the Utah Court of Appeals. The court explained that it would not “reweigh the evidence and substitute [its] conclusion for that of the Commission.” The court therefore upheld the Commission’s decision to deny the claim for benefits.
Mr. Desai previously filed a discrimination complaint in which Garfield School District was found to have discriminated against him. Garfield appealed the decision, but the appeal was withdrawn when the parties reached a settlement agreement. Part of the agreement provided that Mr. Desai would waive any right he may have to challenge any school district’s decision to deny him employment. The agreement was not submitted to the Commission for approval. In 2011, Mr. Desai applied for employment with Garfield as superintendent but was not hired. He then filed another discrimination complaint with the Utah Antidiscrimination and Labor Division (“UALD”) based on not being hired as superintendent. UALD investigated Mr. Desai’s allegations but found no reasonable cause to believe he had been subjected to discrimination. Mr. Desai appealed UALD’s determination and sought to invalidate the waiver of his right to challenge Garfield’s decision not to hire him on constitutional grounds. The ALJ found that Mr. Desai had not presented any evidence of discrimination against him and dismissed the complaint, noting that the Commission could not properly determine the constitutionality of the parties’ prior settlement. The Commission affirmed the dismissal. Mr. Desai then sought review of the Commission’s decision before the Utah Court of Appeals, which found that the Commission correctly dismissed Mr. Desai’s complaint because he did not allege any facts that would demonstrate that Garfield discriminated against him with regard to the superintendent position.
Mr. Serrano was involved in a low-speed car accident while working for Provo City, which resulted in cervical-spine injury. He was able to return to work for a while, but continued to experience difficulty from the accident and eventually resigned because he could no longer perform his duties. Mr. Serrano claimed permanent total disability compensation due to his work injury and was initially denied such benefits by the ALJ. The Commission corrected the legal standard used to deny the claim and remanded the matter to the ALJ for further consideration. On remand, the ALJ found that Mr. Serrano was permanently and totally disabled and awarded him benefits. The Commission affirmed the ALJ’s decision and Provo City appealed the award. The appeal was certified directly to the Utah Supreme Court, which outlined the standards of review for the elements of a permanent total disability claim. The court ultimately upheld the Commission’s decision to award permanent total disability compensation to Mr. Serrano because the Commission’s conclusions were supported by substantial evidence. The court also rejected Provo’s contention that equitable principles should apply in reducing the amount of the award based on the delay in the Commission’s final decision.
Ms. Valencia claimed workers’ compensation benefits for hearing loss she attributed to her employment with Graphic Packaging. Ms. Valencia wore hearing protection while working, where noise reached levels that could potentially cause hearing damage if an employee did not use such protection. The main issue in dispute was whether Ms. Valencia’s use of hearing protection should be considered when determining whether she was exposed to harmful noise at work. Ms. Valencia maintained that she was entitled to benefits because the noise level in her workplace was harmful even though her use of hearing protection effectively reduced such noise below harmful levels. The ALJ and the Commission found that Ms. Valencia was not exposed to harmful levels of industrial noise when factoring in her use of hearing protection. Ms. Valencia’s claim for benefits was therefore denied. Ms. Valencia appealed the Commission’s denial to the Utah Court of Appeals, which agreed with the Commission that the use of hearing protection should be considered when determining whether Ms. Valencia was exposed to harmful levels of industrial noise. Because the evidence showed that Ms. Valencia’s hearing protection reduced the noise to less than harmful levels, the court affirmed the Commission’s decision to deny the claim.
Rules Corner New Administrative Rules for UALD Improving Case Processing and Transparency
In January 2015, after public comment, the Utah Antidiscrimination Labor Division (UALD) adopted revisions to Administrative Rule R606. Rule 606-1-3 was changed to extend the time an employer has to file a response to a charge of employment discrimination from ten (10) days to thirty (30) days. The change also specifies what information should be contained in that response. The change in this rule allows the employer more time to draft a more comprehensive response to a charge of discrimination and provide more relevant evidence to the investigators at the very beginning of the investigation. This additional time also allows the parties to take advantage of the Division's mediation program and possibly resolve the case even before a response is filed.
Another change was made by adding a new rule, R606-1-5. Previously, information gathered in the investigation was only released to the parties at the end of the investigation. This new rule allows either party to request a copy of the information in the file before the investigation has been concluded, as long as the information is not otherwise confidential and will not compromise the investigation of the case. This allows the parties to be more actively involved in the investigation. This rule was added in response to stakeholders’ requests that they be able to see the documents gathered so they could better respond to that evidence.
It is hoped these changes result in better and more efficient investigations, and a more transparent process for both employers and employees.