The month of September brings Labor Day - It is a time to celebrate the contributions workers have made to the strength, prosperity and well being of the State of Utah.
The American landscape has changed dramatically for workers since the labor movement began the first celebrations of Labor Day in the late 1800s. This is an opportune time to reflect on our history and the social, economic and safety issues creating the need for much of the Labor Commission’s regulatory authority which serve as the underlying pillars of our mission. Making sure people have safe working conditions, equal opportunity based on their qualifications, and are paid for the work they do, makes every day Labor Day for the Labor Commission.
Violence in the Workplace
Nearly two million American workers across the country report incidents of workplace violence every year and many more incidents go unreported. According to the Census of Fatal Occupational Injuries from the Bureau of Labor Statistics, 475 of the 4,628 workplace fatalities in 2012 could be attributed to homicide. Workplace violence is a growing concern for employers and employees nationwide and can range from threats and verbal abuse to physical assaults and homicide.
Certain groups of workers are at a higher risk of experiencing acts of workplace violence: delivery drivers, healthcare professionals, public service workers, customer service agents and law enforcement personnel. Additional risk factors for workplace violence include exchanging money with the public, working with volatile or unstable people, working alone or in small groups, working during late night or early morning hours, working in isolated or high-crime areas, working where alcohol is served, and providing health services and care.
OSHA does not have a specific standard addressing workplace violence, however, the Utah Occupational Safety and Health Act requires an employer to take steps to ensure the safety and well-being of its workers. OSHA recommends implementing the following procedures to protect employees from workplace violence:
• Update administrative controls, such as job site hazard assessment, evaluation of existing controls, implementing new policies and procedures and incident reviews.
• Update engineering controls, which could include installing panic alarm systems and protective barriers and configuring treatment areas to maximize an employee’s ability to escape from violence.
• Personal Protective Equipment, such as personal alarm systems for staff and appropriate methods to contact security and correctional officers.
• Training encompassing workplace violence prevention, stress management, recognition of the signs of potential violence and post-incident procedures to review current policies for adequacy, ensuring that improvements to the workplace prevention program are made as necessary.
Employees can also take steps to protect themselves and reduce the odds of becoming a victim of workplace violence:
• Learn how to recognize, avoid or defuse potentially violent situations by attending personal safety training programs.
• Alert supervisors to any concerns about safety or security and report all incidents immediately in writing.
• Avoid traveling alone into unfamiliar locations or situations whenever possible.
• Carry only minimal money and required identifications into community settings.
For a free copy of OSHA publications or for additional workplace safety and health assistance, please contact Utah OSHA Consultation and Education Services at (801) 530-6868, via email at: email@example.com or visit our Consultation page.
Labor Laws & Minors in the Workplace
One of the many laws that the Labor Commission enforces is the Utah Employment of Minors Act (Utah Code Sec. 34-23-101 to 402). The legislature enacted this law with the goal of helping to insure that minors’ employment does not jeopardize their health, safety or education. This law applies to all employers within the State of Utah.
Employers are required to provide their minor (under the age of 18 years old) employees with a 10-minute break for each four hours worked, as well as a 30-minute lunch break to be taken within the first five hours of the workday. Employers can pay a training wage of $4.25 per hour to minors for the first 90 days of employment; however, after 90 days the minor must be paid at least the minimum wage, $7.25 per hour.
Under the Fair Labor Standards Act (FLSA), the minimum age for employment in non-agricultural employment is 14. This law also restricts the number of hours that minors can work. Minors under 16 years of age cannot work during school hours, cannot work more than four hours before and after school and cannot work before 5:00 AM or after 9:30 PM, unless the following day is not a school day. Regardless of whether they are in school at the time of employment, minors under 16 are prohibited from: 1) working more than 8 hours within a 24-hour period; and 2) working more than 40 hours during any week.
The law also provides restrictions as to the type of work that a minor employee may perform, depending on the minor's age. For example, the law states that 12-year-old minor employees may work in jobs such as babysitting, and delivering newspapers. As it applies to 16-year-olds, the law is broader and simply says that they are permitted to work in all non-hazardous occupations. The Labor Commission follows the U.S. Department of Labor's standards in defining non-hazardous occupations for minors. For more information regarding specific occupations based in age please visit their website “Youth Rules” at: https://www.youthrules.dol.gov/
The Labor Commission recently issued a new brochure available to the public entitled Guide to Employment of Minors. This brochure provides general information about minors' employment rights. It is available in paper format and is also viewable online at the Labor Commission's website.
Judge Gunnarson Appointed to the NAALJ Board of Governors
Judge Heather Gunnarson has been appointed to the National Association of Administrative Law Judiciary’s (NAALJ) Board of Governors. She was sworn in at the NAALJ’s national 40th anniversary conference in Memphis on September 17, 2014.
The NAALJ is the largest professional organization devoted exclusively to administrative adjudication in the executive branch of government. Its voting members include state, federal, and local administrative law judges, administrative judges, hearing officers, referees, trial examiners, agency chairs and commissioners, as well as higher appellate authorities, exercising a wide variety of subject matter jurisdiction. Associate members include law professors and attorneys involved in administrative law. As of July 1, 2014, NAALJ had approximately 846 dues-paying members.
NAALJ’s core functions are first, the enhancement of the quality of administrative justice and second, the furtherance of the process of alternate dispute resolution by means of arbitration and mediation. To those ends, NAALJ conducts seminars and conferences, publishes a journal and newsletter, and confers with officials of the state and federal governments on methods of improving administrative adjudication. NAALJ has adopted a Model Code of Conduct for State Administrative Law Judges, and was a moving force behind the ABA Model Act for Creating a State Central Hearing Agency (Office of Administrative Hearings).
“I am thrilled and honored to be associated with such an esteemed professional organization at the forefront in the fulfillment of the true and proper role of administrative adjudication,” said Judge Gunnarson, “and I look forward to my service on their Board of Governors.”
Claim First Review- Streamlining the Wage Claim Process
For about one year the Wage Claim Unit of our Antidiscrimination and Labor Division has been conducting a “Claim First Review” at the front end of the wage claim process to identify ways of improving our service delivery process.
This new process involves the Intake Officers setting up cases in the claim database, and then tracking them in an initial review phase before assigning them to the Wage Claim Unit Investigators. The goal of Claim First Review is to streamline the initial assessment of new cases to handle more quickly the simpler-outcome cases, thereby freeing up more of the Investigator’s time to address the merits of cases that remain in dispute.
The Intake Officers track cases by: 1) managing the request for and receipt of written submissions and documents from the claimant and employer, and 2) drafting for review by an Administrative Law Judge default findings and orders against employers who fail to respond, admit to wages owed, or are guilty of having issued a bounced or late paycheck. If after receipt of the parties’ written submissions—notice of the claim, employer’s response, and claimant’s written reply—a wage claim is still in dispute, the Intake Officer transfers the case to an Investigator who then takes a more in-depth look at the case, and writes a finding on the merits of the case.
Since we have implemented the Claim First Review, the simpler outcome cases have moved faster through the process and even our Intake Officers agree, Claim First Review enhances the service to constituents, and gets the Wage Claim Unit closer to achieving its goal of providing prompt and effective resolution to wage claim cases.
Labor Week at the Mexican Consulate
The Utah Labor Commission and the Division of Industrial Accidents were honored to be invited to participate in the recent Labor Week at the Utah Mexican Consulate. This yearly event takes place the week prior to Labor Day and invites various agencies, non-profits and legal experts to help educate the public on the various state and federal labor and health related laws and issues.
Wage and Hour Division Deputy Administrator Laura Fortman (left) and Carlos Martín Jiménez Macías, consul general for the Mexican Consulate in Chicago.The Division was invited to participate along with the Mexican Consulate, the U.S. Department of Labor Wage and Hour Division and other community based agencies to present information on the workers’ compensation process, rights of injured workers, responsibilities of employers and other general information on benefits.
In addition to the activities at the consulate, the Labor Commission and Industrial Accidents Division representatives were invited to participate on several radio talk shows hosted on Spanish language radio stations. The Consul for Protection from the Mexican Consulate, Roman Tercero, and Manager for Hispanic Services from Workers Compensation Fund, Carlos Baez, also participated in the talk shows.
The Division of Industrial Accidents is committed to establishing on-going partnerships with organizations providing outreach to the community, employers and insurance carriers. This collaboration was a great opportunity to reinforce our continued cooperation between the Labor Commission, the Mexican Consulate, and the community they serve.
This quarter the Utah Court of Appeals issued one decision involving a 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.
Mr. Prows injured his head and shoulder when he fell from a scaffolding while working for Allen’s Masonry, Inc. He filed a claim for permanent total disability compensation a few years later. However, by the time Mr. Prows's case came before the Labor Commission, he had found gainful employment and therefore did not meet all the statutory requirements for an award of permanent total disability compensation. The Labor Commission therefore denied Mr. Prows's claim. On appeal, Mr. Prows argued that his return to the workforce should not preclude him from receiving permanent total disability compensation for the period he was not working. Mr. Prows noted that certain parts of the statute governing permanent total disability claims contemplate such benefits to be temporary in some instances as the statute provides for their termination during the claimant’s life. Mr. Prows also argued that denying his claim seemed to penalize him for returning to work. The court rejected Mr. Prows's arguments and agreed with the Labor Commission that Mr. Prows was not entitled to permanent total disability compensation because he failed to meet a statutory requirement of not being gainfully employed. The court also rejected Mr. Prows’s policy argument that denying permanent disability benefits for a temporary amount of time would encourage malingering. The court explained that the statutory criteria directly and sensibly address the potential problem of a malingering claimant and that temporary disability benefits were appropriate for temporary periods of disability.
Rule 602-2-4 Labor Commission - Adjudication, Effective July 22, 2014
Attorney Fees. This rule updates the amount of attorney fees an injured worker’s attorney may collect during a workers’ compensation case. For cases resolved at the Commission level, an attorney may now collect up to $18,101. For cases requiring prosecution or defense before the Utah Court of Appeals, an attorney may now collect up to $26,114. For cases requiring prosecution or defense before the Utah Supreme Court, an attorney may now collect up to $32,048. This update is due to an increase in the State’s average weekly wage, as well as an increase in the amount of benefits that are calculated using the average weekly wage.
Rule 612-200-8. Labor Commission, Industrial Accidents Effective July 22, 2014.
Burial Expenses. This update increases the maximum burial expenses for a death resulting from a work accident from $8,000 to $9,000. The change also requires the Commission to review this rule each even-numbered year in order to ensure the payment of burial expenses remains equitable.