By: Mark A. Wagner, Employment and Litigation Attorney
January 23rd, 2019
Prince Yeates employment lawyers Mark Wagner and John Chindlund recently completed a broad summary of Utah employment law for inclusion in an upcoming compendium of state labor and employment laws for Primerus, an exclusive international society of nearly 200 independent peer-reviewed law firms in more than 40 countries. Although the summary was generally intended to educate in-house counsel and other Primerus member law firms, we thought we would share it with you in a series of weekly FAQs over the next several months. Our second installment is below.
Question of the Week: Are there any statutory exceptions to the employment-at-will doctrine in Utah?
Last week, we explained that, in Utah, an employment relationship for an indefinite term creates a presumption that the employment is at will. However, the at-will presumption is just that: a presumption. This presumption can be overcome in at least three ways. This week we discuss the first of these three ways—Utah statutes. (Various federal statutes may also apply, but this post focuses on Utah law.)
The at-will presumption is overcome when “a statute or regulation restricts the right of an employer to terminate an employee under certain conditions.” Hansen v. Am. Online, 2004 UT 62, ¶7 (internal quotation marks omitted). Numerous Utah statutes expressly restrict a private employer’s right to terminate an employment relationship. These statutes are listed below in alphabetical order:
- Employment Inventions Act, Utah Code § 34-39-3(7). This statute prohibits employers from requiring employees to agree to assign or license to the employer any right in or to an invention created by the employee on the employee’s own time and that is not an employment invention as a condition of employment or remaining employed;
- Employment of Minors, Utah Code § 34-23-402(2)(g). This statute makes it a class B misdemeanor for a person to fire or retaliate against an employee (or threaten to do so) because the employee has testified, is about to testify, or is believed might testify in any investigation or proceeding to enforce the statute.
- Employment Relations and Collective Bargaining, Utah Code § 34-20-8. This statue prohibits employers from terminating or discriminating against an employee for exercising rights under the statute.
- Genetic Testing Restrictions on Employers Act, Utah Code § 34A-11-102. This statute requires employers to comply with Utah Code § 26-45-103 and other applicable provisions of the Genetic Testing Privacy Act. Section 26-45-103, in turn, prohibits employers from asking about or considering private genetic information about an individual in connection with decision about hiring, promoting, or retaining the employee except when the employer has “a reasonable basis to believe that the individual’s health condition poses a real and unjustifiable safety risk requiring the change or denial of an assignment”.
- Internet Employment Privacy Act, Utah Code § 34-48-201. This statute prohibits employers from firing employees because they will not disclose usernames and passwords to their personal Internet accounts.
- Jury Service, Utah Code § 78B-1-116. This statute bars employers from firing employees because they receive or respond to a summons, serve as a juror or a grand juror, or attend court for prospective jury or grand jury service.
- Military Leave, Utah Code § 39-1-36. This statute prohibits employers from refusing to reinstate a member of a reserve component of the United States armed forces on return from certain listed required leaves of absence.
- Payment of Wages, Utah Code § 34-28-19. This statute forbids employers from discharging, demoting, or retaliating against employees who have filed complaints or testified in (or who the employer believes are going to file complaints or testify in) any proceedings dealing with enforcement of the statute.
- Protection of Activities in Private Vehicles, Utah Code § 34-45-103. This statute prohibits employers from establishing, maintaining, or enforcing a policy or rule that has the effect of prohibiting individuals from (a) transporting or storing a firearm in a motor vehicle on property designated for parking if certain conditions are met or (b) possessing any item in or on a motor vehicle on property designated for parking if the policy or rule creates a substantial burden on the individuals’ free exercise of religion.
- Utah Occupational Safety and Health Act, Utah Code § 34A-6-203. This statute prohibits employers from discharging or retaliating against an employee because the employee files a complaint with Utah OSHA, testifies in any proceeding under the statute, or exercise a right granted by the statute on behalf of the employee or others.
- Utah Right to Work Law, Utah Code § 34-34-1 et seq. This statute bans employers from requiring, pursuant to an agreement, understanding, or practice with a labor organization, membership in such labor organization, as a condition of employment or continuation of employment.
- Utah Antidiscrimination Act, Utah Code § 34A-5-106. This statute prohibits employers of 15 or more persons from terminating or retaliating against an otherwise qualified person (a) because of race, color, sex, pregnancy, pregnancy-related conditions, childbirth, age (40 or over), religion, national origin, disability, sexual orientation, or gender identity; (b) for engaging in activity protected by the statute; or (c) for engaging in a “lawful expression or expressive activity” outside of the workplace about the person’s “religious, political, or personal convictions, including convictions about marriage, family, or sexuality,” unless the expression or expressive activity is in “direct conflict with the essential business-related interests of the employer.”). We will discuss this statute in more detail in a future post.
There are other Utah statutes that do not expressly prohibit the termination of an employee but that might give rise to a claim for wrongful discharge in violation of public policy. We will discuss this claim in an upcoming post.
Check back for next week’s post about the second exception to the at-will employment presumption—public policy.
Mark A. Wagner concentrates his practice in employment law, homeowners association law, and health care law, and serves as Chair of the firm’s Employment and Labor Practice Group.