Utah Employment Law FAQs

Employment Law Questions in Utah

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 first installment is below.


January 17, 2019:  Is Utah an At-Will Employment State?

Yes.

In Utah, an employment relationship for an indefinite term gives rise to a presumption that the employment relationship is at will.  Tomlinson v NCR Corp., 2014 UT 55, ¶11.  “Such a relationship allows ‘both the employer and the employee to terminate the employment for any reason and allows the employer to do so without extending any procedural safeguards to an employee.’”  Id. (quoting Fox v. MCI Commc’ns Corp., 931 P.2d 857, 859 (Utah 1997)).  The employment-at-will presumption is rebuttable, however, and can be overcome by establishing one of three exceptions to the doctrine.

First, 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).  See generally discussion following question  2, below.

Second, the at-will presumption may be overcome “by showing that the parties created an implied-in-fact contract, modifying the employee’s at-will status.”  Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 333 (Utah 1992).  See generally discussion following question 5, below.

Third, the at-will presumption may be overcome by showing that “the termination of employment constitutes a violation of a clear and substantial public policy.”  Ray v. Wal-Mart Stores, Inc., 2015 UT 83, ¶12.  See generally discussion following question 3, below.


January 23, 2019: Are there any statutory exceptions to the employment-at-will doctrine in Utah?

Yes.

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.


January 31, 2019: Are there any public policy exceptions to the employment-at-will doctrine in Utah?

Yes.

Above we discussed express statutory exceptions to the employment at-will doctrine in Utah.  Those are statutes that expressly state that an employer may not fire someone for a specific reason (like sex or color, for example).  However, as discussed below, even statutes (or other sources of law) that say nothing about terminating an employee might make it wrongful for an employer to discharge an employee in certain circumstances.  This is the result of a judicially created exception to the employment-at-will presumption, which is founded in notions of “public policy.”

The Public Policy Exception in General

An employer may not discharge an employee if doing so would violate “a clear and substantial public policy” of the state of Utah.  Ray v. Wal-Mart Stores, Inc., 2015 UT 83, ¶ 12.  To determine whether such a “clear and substantial public policy” exists, Utah courts look to statutes, the Utah constitution, and prior court decisions.  As suggested by the wording “clear and substantial,” however, in this context “public policy” is “‘much narrower than traditional notions of public policy,’ so as to not unduly infringe on an employer’s discretion in discharging employees.”  Id. at ¶ 13 (quoting Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶ 15).

To qualify as “public policy” for purposes of wrongful discharge, the language of the source of the public policy at issue must be “clear” and the interests affected must be “substantial.” Peterson v. Browning, 832 P.2d 1280, 1282 (Utah 1992).  A public policy is “clear” only if it is plainly defined by a statute, constitutional standard, or judicial decision.  Dixon, 1999 UT, at ¶ 31 (internal quotations and citations omitted).  And, the policy must, in fact, be “public;” that is, it must “further substantial public, as opposed to private, interests.”  Ryan, 972 P.2d at 405 (italics in original).

Categories of Public Policies Giving Rise to a Wrongful Discharge Claim

To date, the Utah Supreme Court has identified four categories of public policies that may provide a basis for a claim of wrongful discharge claim in violation of public policy:

  1. refusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
  2. performing a public obligation, such as accepting jury duty;
  3. exercising a legal right or privilege, such as filing a workers’ compensation claim; or
  4. reporting to a public authority criminal activity of the employer.

Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 408 (Utah 1998) (citations omitted).

A Balancing Act

The third category of public policies (exercising a legal right or privilege) is the most difficult to apply.  Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 10.  This is because when this category is implicated, both employees and employers might be able to invoke public policy in support of their respective positions.  Id. at11.  Employees have an interest in maximizing access to their statutory and constitutional rights in the workplace.  Id.  At the same time, employers have an interest in regulating the workplace environment to promote productivity, security, and similar lawful business objectives.  Id.

As a result, when considering this category, Utah courts also conduct a balancing analysis to determine “whether countervailing policies outweigh the policy at issue.”  Ray, 2015 UT 83, ¶ 14.  This balancing analysis has two steps.  The first is to ask “whether the policy in question is one of overarching importance to the public as opposed to the parties only.”  Retherford v. AT&T Commc’ns of the Mountain States, Inc., 844 P.2d 949, 966 (Utah 1992).  If a policy affects a duty that runs solely to the benefit of the employer and employee, it generally will not rise to the level of a substantial and important public policy.  Ryan, 972 P.2d at 405.  The second step is to ask, “whether the public interest is so strong and the policy so clear and weighty” that the policy should be beyond the reach of contract, such that parties should not be not allowed to modify it, even when freely willing and have equal bargaining power.  Retherford, 844 P.2d at 966.

Specific Areas in Which the Wrongful Discharge in Violation of Public Policy Have Been Recognized

As of the date of this post, the Utah Supreme Court has recognized causes of action for discharge in violation of public policy in the following areas:

Damages

Discharge in violation of public policy is a tort.  Heslop, 839 P.2d at 836.  As a result, a successful plaintiff may recover damages for general and consequential injuries resulting from a wrongful termination.  Id. at 840.  In the context of this tort, consequential damages include attorney fees because “[e]mployers can reasonably foresee that wrongfully terminated employees will be forced to file suit to enforce their employment contracts and will foreseeably incur attorney fees.”  Id. at 840-841.

[1] This cause of action extends to situations involving claims of constructive discharge.  Id. at ¶ 17.  However, no cause of action exists for retaliatory harassment or discrimination that does not result in an actual or constructive discharge for having exercised a legal right or privilege.  Id. at ¶ 29.  And, no cause of action exists for an employee who was discharged for merely opposing an employer’s treatment of other employees who exercise a legal right or privilege.  Id. at ¶¶ 42-46.


February 13th, 2019: Does Utah recognize implied employment contracts as an exception to the employment-at-will doctrine?

Yes.

Above we discussed the statutory and public policy exceptions to the employment-at-will doctrine in Utah.  In this post, we discuss the last of the three recognized exceptions to the employment-at-will doctrine in Utah: implied contracts.

It’s a deal.

Under Utah law, employment relationships are, at their base, contractual relationships.  An employee agrees to perform certain work, and an employer agrees to compensate the employee for that work.  The at-will doctrine is a presumption that, in the absence of an agreement between the parties to the contrary, either party may terminate the employment relationship at any time for any reason or no reason.  Of course, the parties can agree to employment on other terms.  For example, the parties can agree that the employment relationship may be terminated only after a specific period, only for specific reasons, only by following a specific procedure, or some combination of these terms.

Why didn’t you say so?

Ideally, any contract between the parties that limits the at-will nature of the employment relationship will be clearly stated in words.  Better yet, it will be stated in written words.  But, sometimes such an agreement is never put into expressly stated – or at least not in words in a document with the word “contract” or “agreement” in its title.

Sometimes parties reach agreements through actions and commonly understood interactions.  Assume you call a plumber to fix a leak at your house.  Assume further that you got the plumber’s number from a flyer that list’s the plumber’s regular rates for fixing the type of leak you have.  If the plumber shows up and fixes your leak, a contract likely exists that you will pay the plumber the listed regular rate for the plumber’s services.  This is true even though neither of you mentioned any payment for the services or any particular rate.  A contract with those terms is implied by the facts of the situation.  The same thing can happen in the employment context.

Implied employment contracts

Based on the above principles, the Utah Supreme Court has made clear that the at-will employment presumption may be overcome “by showing that the parties created an implied-in-fact contract, modifying the employee’s at-will status.”  Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 333 (Utah 1992).

The employee bears the burden of establishing such an implied-in-fact contract provision.  Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991).  To do this, an employee must present evidence that meets the requirements of an offer by an employer for a unilateral contract.”  Id. at 1002.  The key requirement in this is that an employer communicated to an employee in some fashion an intent to limit the at-will nature of the employment relationship in some definite way.  If this is the case, then the employee can accept that offer by performing the job in a manner consistent with the promised limitation.  Id.

Employee handbooks and policies

Employers can communicate an intent to limit the at-will nature of the employment relationship through such things as employee handbook and bulletins containing policies for employee termination that are distributed to employees.  Id. at 1001; see also Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶18 (citing Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 2000 UT 18, ¶ 6); Reynolds v. Gentry Finance Corp. 2016 UT App. 35, ¶ 10).  This happens most readily when employee handbooks or policy statements contain language about limitations on termination that are unqualified.  For example, statements that employees are fired after an oral and written warning that is not corrected.  Or that employees are never fired for making complaints to management.

Contractual disclaimers

Implied contracts can be avoided by clear disclaimers that an employee cannot reasonably miss.  For example, an employee handbook that “contains clear and conspicuous language disclaiming any contractual liability and stating [the employer’s] intent to maintain an at-will relationship with its employees” will prevent the formation of an implied contract.  Johnson, 818 P.2d at 1003.  This is because “Utah law allows employers to disclaim any contractual relationship that might otherwise arise from employee manuals.”  Tomlinson v. NCR Corp., 2014 UT 55, ¶ 25; see also Glacier Land Co., LLC v. Claudia Klawe & Assocs., LLC, 2006 UT App 516, ¶ 19; Hamilton v. Parkdale Care Ctr., Inc., 904 P.2d 1110 (Utah Ct. App. 1995); Trembly v. Mrs. Fields Cookies, 884 P.2d 1306 (Utah Ct. App. 1994); Kirberg v. West One Bank, 872 P.2d 39 (Utah Ct. App. 1994).  Thus, “when an employee handbook contains a clear and conspicuous disclaimer of contractual liability, any other agreement terms must be construed in the light of the disclaimer.”  Hodgson, 844 P.2d at 334.

“The prominence of the text, the placement of the disclaimer, and the language of the disclaimer are all relevant factors in determining whether a disclaimer is clear and conspicuous.”  Tomlinson, 2014 UT 55, ¶ 26.  For example, in Tomlinson, a disclaimer “conspicuously located at the top of the relevant policy” and “prominently bolded and set apart by a text box” was “sufficiently prominent to put employees on notice of its terms.”  Id. ¶ 28.  In contrast, disclaimer made in wishy-washy language in small print in the middle of a lengthy employee handbook is unlikely to prevent an employee from making an argument to a jury that other terms in the handbook did not rise to the level of an implied contract.


February 21st, 2019: What Utah laws relate to the hiring process?

Numerous Utah statutes bear on the hiring process of both public and private sector employers.  This post focuses on the Utah statutes most relevant to private sector employers.  Although many of these statutes beyond the hiring process, this post focuses on the ways in which they relate to the hiring process in particular.[1]

With the above caveats in mind, below is an alphabetical list of Utah statutes that relate to hiring process.

  • Centralized New Hire Registry Act, Utah Code § 35A-7-101 et seq. This statute requires employers to report certain basic information about new hires (or rehires) to the Department of Workforce Services.  Failure to timely report the required information may result in a $25 fine for each instance.  If the failure is intentional and a result of an agreement between an employer and employee not to report some or all the required information, the fine increases to $500 for each instance.
  • Drug and Alcohol Testing, Utah Code § 34-38-1 et seq. The Utah Drug and Alcohol testing statute protects employers who conduct drug and alcohol tests from liability under state law if they comply with requirements of the statute.  Id. § 34-38-3(1).  Among other things, management must submit to the testing on a periodic basis.  Id.  In addition, testing must occur during or immediately after the regular work period of current employees, testing time must be treated as compensable work time, and employers must pay all costs of testing.  Id. § 34-38-5.

Samples must be collected under reasonable and sanitary conditions, with due regard to the privacy of the person being tested and in a way reasonably calculated to prevent substitution or interference.  Collection must be documented in conformance with the statute.  Collection, storage, and transportation to the place of testing must be performed so as reasonably to preclude the probability of sample contamination or adulteration; and testing must conform to scientifically accepted analytical methods and procedures.  Id. § 34-38-6.

Before a test may be considered a failed test and used as a basis for disciplinary or rehabilitative actions, a confirmation test must be conducted using gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method.  In addition, and if the sample is a urine sample, by a laboratory certified by the United States Department of Health and Human Services under the National Laboratory Certification Program.  Id.  All testing must be performed within the terms of a written policy that has been distributed to employees and is available for review by prospective employees.  Id. § 34-38-7.

Test results are confidential, but employers may use test results to take action against an employee and to defend against certain actions by an employee.  Id. § 34-38-13.

  • Employer Reference Immunity, Utah Code § 34-42-1. This statute establishes a qualified privilege for an employer who, in good faith, provides information about job performance, professional conduct, or evaluation of a former or current employee to a prospective employer at the prospective employer’s request.  The statute also creates a rebuttable presumption that an employer is acting in good faith when it provides such information.  This presumption may be rebutted, but only on a showing by clear and convincing evidence that the employer disclosed the information with actual malice or intent to mislead.
  • Employment of Minors, Utah Code § 34-23-101 et seq. Under this statute, the Utah Labor Commission establishes hours and conditions of labor and employment of any occupation in which minors are employed.  Id. § 34-23-201 through -209.  The Commission may establish minimum hourly wages for minors (which may be less than those for adults).  Id. § 34-23-301.

The statute provides criminal penalties for violations of its conditions-of-labor provisions, id. § 34-23-402, and for repeated violations of its minimum wage provisions.  Id. § 34-23-302.  It also allows minors to bring a civil action within two years of an alleged violation.  A minor who brings such an action may obtain injunctive relief and recover the difference between the wage paid and the minimum wage, plus interest, court costs, attorney fees.  Id. § 34-23-303.  Penalties may also include $500 per violation after an investigation by the Antidiscrimination and Labor Division of the Commission and an administrative proceeding.  Id. § 34-23-401.

  • Employment Selection Procedures Act, Utah Code § 34-46-101 et seq. This statute prohibits an employer of 15 or more employees from asking an applicant for a social security number, date of birth, or driver license number before the applicant is offered a job.  Id. § 34-46-201(1).  The statute provides an exception if the applicant consents to the request and the employer asks all applicants for the position for the same information at a time in the selection process when the employer does one of the following:
      1. obtains a criminal background check;
      2. obtains a credit history report;
      3. obtains a driving record;
      4. conducts a review of its internal records to determine if the applicant previously applied for a position with, or was previously employed by, the employer; or
      5. collects the information to provide to a government entity to determine eligibility for or participate in a government service, benefit, or program that requires the information be collected on or before the day on which an offer of employment is made.

Id. § 34-46-201(2).  The statute also prohibits an employer from using such information (or any information about an applicant obtained through the “initial selection process”) for any purpose other than determining whether to hire the applicant (including for marketing, profiling, reselling the information, or a similar use).  Id. § 34-46-202.  It further prohibits employers from providing such information to anyone else except for one of the following reasons:

      1. as required by law;
      2. to a government entity for the purpose of determining eligibility for or participating in a government service, benefit, or program;
      3. if the applicant applies for another position with the employer; or
      4. if the applicant becomes an employee and the information is used by the employer for a performance review or promotion application that is also applied to other employees in a similar position.

Id.

The statute requires an employer to maintain a specific policy about the retention, disposition, access, and confidentiality of information about an applicant obtained through an initial selection process; show the policy to an applicant on request before requiring the applicant to provide any such information; and dispose of the information within two years after it is obtained if the applicant is not hired in that period.  Id. § 34-46-203.  The statue empowers the Antidiscrimination and Labor Division of the Utah Labor Commission to investigate alleged violations of the statute, conduct administrative adjudications of complaints of violations of the statute, and, if it determines that the statute has been violated, order the employer to cease and desist and/or pay a fine of $500.  Id. § 34-46-301.

  • Genetic Testing Restrictions on Employers Act, Utah Code § 34A-11-101 et seq. This statute requires employers to comply with the Genetic Testing Privacy Act (GTPA).  The GTPA, in turn, prohibits employers from asking about or considering private genetic information about an individual in connection with a decision about hiring, promotion, or retention.  Utah Code § 26-45-103(1).  The GTPA provides an exception that allows an employer to seek an order from a court or administrative agency compelling the disclosure of private genetic information in either of the following two situations:
      1. an employment-related judicial or administrative proceeding in which the individual has placed his or her health at issue, or
      2. an employment-related decision in which 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.”

Id. § 26-45-103(2)

The statute provides a private right of action to any person whose rights have been violated.  A person bringing such an action may seek the following relief for each violation:

      • equitable relief,
      • actual damages sustained,
      • $100,000 if the violation is a result of an intentional and willful act,
      • Punitive damages if the violation is the result of a malicious act, and
      • reasonable attorney fees.

Id. § 26-45-105.

In addition, the attorney general may bring an action against an employer seeking to enjoin any violation and to recover a civil fine of up to $25,000 per intentional violation along with reasonable costs of investigation and litigation.  Id. § 26-45-106.

  • Internet Employment Privacy Act, Utah Code § 34-48-101 et seq. This statute prohibits an employer from asking an applicant or employee to disclose usernames and passwords that would allow access to the applicant’s or employee’s personal Internet accounts.  It also prohibits employers from failing to hire or taking adverse action against an applicant or employee failing to disclose such information.  The statute creates a private right of action in favor of an employee or applicant for a violation of the statute and provides for recovery of damages of not more than $500.
  • Medical Fees for Examinations, Utah Code § 34-33-1 et seq. This statute prohibits an employer from charging an employee or applicant a fee for a medical examination that is required as a condition of pre-employment, employment, or continued employment, and from requiring an employee or applicant to submit to or obtain a physical examination unless the employer pays all costs of such physical examination.  A violation of the statute is a misdemeanor.
  • Private Employer Verification Act, Utah Code § 13-47-101 et seq. This statute prohibits private employers of 15 or more persons from hiring a new employee unless the employer is registered with a “status verification system” to verify the federal legal working status of any new employee (except one holding an H-2A or H-2B visa as a result of a petition of the employer) and uses the system to verify the federal legal working status of the new employee in accordance with the requirements of the system.  The statute does not provide for any penalties or any enforcement actions.
  • Utah Antidiscrimination Act (UADA), Utah Code § 34A-5-101 et seq. The UADA prohibits employers of 15 or more employees from, among other things, discriminating against an applicant or employee otherwise qualified because of race, color, sex, pregnancy, pregnancy-related conditions, childbirth, age (40 or over), religion, national origin, disability, sexual orientation, or gender identity.   Id. § 34A-5-106(1)(a)(i).  The UADA also prohibits employers from discriminating (including harassing) or retaliating against an applicant or employee otherwise qualified, based on “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.”  Id. § 34A-5-112(2).

We will be providing a more detailed summary of the UADA and the remedies available thereunder in a future post, so check back.

Hire safely everyone.

 

[1] Numerous federal statutes also bear on the hiring process, but they are not the focus of this post.


February 28th, 2019: Does Utah have a right-to-work law or other labor / management laws?

Yes.

Utah has a right-to-work law and two other labor / management relations laws.  These statutes are summarized generally below.

But first . . .

Before summarizing Utah’s labor laws, it might be helpful to provide some basic context. [1]  To lawyers, there is a distinction between “labor” and “employment” law.  Generally speaking, labor law refers to the set of laws that establish the right of employees to engage in collective bargaining (i.e., to unionize) and the rules by which employees, unions, and management must play.  Employment law, in contrast, is a broader term that encompasses the legal relationships between employers and employees in areas that fall outside the framework of collective bargaining and union-management relations.

Labor law is largely governed by a handful of federal laws, the most prominent of which is the National Labor Relations Act (NLRA).  However, section 14(b) of the NLRA (codified at 29 U.S.C. § 164(b)) affirms the right of states to enact laws that prohibit agreements requiring employees to be members of a union or to pay union dues as a condition of employment.  As of the date of this post, 27 states—including Utah—have enacted such laws.  In addition, Utah has also enacted two other labor laws.

Without further ado, . . .

  • Utah Right to Work Law, Utah Code § 34-34-1 et seq. The Utah Right to Work Law (URWL) declares that it is the public policy of Utah “that the right of persons to work . . . shall not be denied or abridged on account of membership or nonmembership in any labor union, labor organization or any other type of association . . . .”  Id. § 34-34-2.  Accordingly, the URWL makes the following conduct illegal:
    • any conduct, including an agreement, understanding, or practice, whether express or implied, that violates this policy, id. § 34-34-4;
    • any agreement, understanding, or practice designed to violate the URWL, id. § 34-34-5;
    • any conduct forcing someone to violate the URWL, id. § 34-34-6;
    • any act to force a person to join or refrain from joining a union, id. § 34-34-7;
    • any requirement of an employer that a person become or remain a union member as a condition of employment, id. § 34-34-8;
    • any requirement of an employer that a person refrain from or cease being a union member as a condition of employment, id. § 34-34-9; and
    • any requirement of an employer that a person pay any dues, fees, or other charges of any kind to a labor union as a condition of employment. Id. § 34-34-10.

The URWL creates a private civil right of action on behalf of a person or organization injured by a violation (or threatened violation) of the statute to obtain an injunction against the violation as well as any damages caused by the violation(or threatened violation).  Id. §§ 34-34-11, 34-34-12, 34-34-13.  In addition, the URWL makes each violation (and each day a violation continues) a separate class B misdemeanor.  Id. § 34-34-17.

  • Employment Relations and Collective Bargaining, Utah Code § 34-20-1, et seq. This statute applies to most private employers, including persons acting in the interest of an employer, but excludes from the definition of employer the United States, states and political subdivisions, any person subject to Railway Labor Act, any labor organization other than when acting as an employer, any corporation or association operating a nonprofit hospital, or anyone acting in the capacity of officer or agent of a labor organization.  Id. § 34-20-2(5).

The statute declares, in part, that, “[i]t is the policy of the state, in order to preserve and promote the interests of the public, the employee, and the employer alike, to establish standards of fair conduct in employment relations and to provide a convenient, expeditious and impartial tribunal by which these interests may have their respective rights and obligations adjudicated.”  Id. § 34-20-1(4).  Among other things, the statute creates a state Labor Relations Board, id. §§ 34-20-4, 34-20-5; empowers the Board to make regulations, id. § 34-20-6; establishes rights of employees to engage in, or refrain from, self-organization, forming, joining, or assisting labor organizations, collective bargaining, and concerted activities for the purpose of collective bargaining or other mutual aid or protection, id. § 34-20-7; defines and prohibits “unfair labor practices,” id. § 34-20-8; establishes procedures for collective bargaining, id. § 34-20-9; and provides for administrative adjudication before the Board of charges of unfair labor practices and for judicial review and enforcement of orders issued by the Board, id. § 34-20-10; as well as hearings and investigations by the Board.  Id. § 34-20-11.  The statute further provides that anyone who willfully resists, prevents, impedes, or interferes with the Board’s performance of its duties shall be punished by a fine of up to $5,000 and/or imprisonment for up to one year.  Id. § 34-20-12.

  • Labor Disputes, Utah Code § 34-19-1 et seq. This statute provides a right to organize labor unions, Id. § 34-19-1(1), and includes anti-injunction provisions that apply when a person or association is found to be participating or interested in a labor dispute.  Id. §§ 34-19-2, 34-19-4 through 34-19-10.  The statute further defines “labor dispute,” the circumstances under which a person will be considered to have participated or been interested in a labor dispute, and under which a case will be held to involve or grow out of a labor dispute.  Id. § 34-19-11.  It also prohibits the deputizing of employees in connection with a strike or lockout, id. § 34-19-12, and declares yellow-dog contracts (agreements to join, not join, or quit a labor union) against public policy.  Id. § 34-19-13.

[1] For example, in my experience, people often confuse the terms “at-will employment” and “right to work.”  As discussed in a previous post, at-will employment refers to a general legal presumption that the employment relationship may be terminated by either the employer or the employee at any time for any reason or no reason at all, unless the parties have an agreement to the contrary or the reason does not violate either a statute or Utah public policy.  In contrast, as discussed above, right to work refers to a statutory right, granted at the state level, of an employee to be employed without being a member of a union and without having to pay union dues.


March 8th, 2019: Does Utah state law prohibit discrimination and hostile work environments?

Yes.

The Utah Antidiscrimination Act (UADA), Utah Code § 34A-5-101, et seq.

Covered Employers

The UADA applies to all employers included in the statute’s definition of “employer.”  As of the date of this post,[1] this includes:

  • the state;
  • a political subdivision;
  • a board, commission, department, institution, school district, trust, or agent of the state or a political subdivision of the state; or

. . . wait for it . . .

  • “a person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year.”

An “employer” does not include:

  • a religious organization, association, society, educational institution, or a religious leader “when that individual is acting in the capacity of a religious leader;”
  • an affiliate, wholly owned subsidiary, or agency of any of the above religious entities; or
  • “the Boy Scouts of America or its councils, chapters, or subsidiaries.”

Id. § 34A-5-102(1)(i).

Covered Non-Employers

As discussed below, the UADA prohibits certain discriminatory conduct outside of the direct employment context by employment agencies and labor organizations.  In addition, and this is a big one, the UADA prohibits any person, from aiding, inciting, compelling, or coercing any act prohibited by the UADA; obstructing or preventing a person from complying with the UADA; or attempting, “either directly or indirectly,” to commit an act prohibited by the UADA.

What the UADA Forbids

Among other things, the UADA forbids discrimination (including harassment and other forms of discrimination) and retaliation by employers against otherwise qualified persons on the basis of any of the following:

  • race,
  • color,
  • sex, pregnancy, childbirth, and pregnancy-related conditions,
  • age (over 40),
  • religion,
  • national origin,
  • disability,
  • sexual orientation, or
  • gender identity.

Id. § 34A-5-106(1)(a)(i).

The UADA also prohibits employment agencies and labor organizations from discriminating for any of the above reasons in job referrals, placements, and membership.  It further prohibits employers, employment agencies, and labor organizations from advertising, asking about, or otherwise communicating in manner that expresses a limitation, requirement, or discrimination based on any of the listed characteristics.

And, as mentioned above, the UADA prohibits any person from aiding, inciting, compelling, or coercing any act prohibited by the UADA; obstructing or preventing a person from complying with the UADA; or attempting, “either directly or indirectly,” to commit an act prohibited by the UADA.  (This bears repeating.)

What the UADA Affirmatively Requires

The UADA includes more than just prohibitions.  It also imposes affirmative obligations on employers to provide reasonable accommodations for an employee related to pregnancy, childbirth, breastfeeding, or related conditions if requested by the employee.  The only exception to this is if the employer demonstrates that the accommodation would create an undue hardship on its operations.  The UADA further requires employers to include in an employee handbook or to post in a conspicuous place written notice of an employee’s rights to reasonable accommodations for pregnancy, childbirth, breastfeeding, or related conditions.

In addition, the UADA requires employers to make reasonable accommodations to all employees in dress and grooming standards based on gender identity.  It also requires employers to make reasonable accommodations in rules and policies that designate sex-specific facilities (including restrooms, showers, and dressing rooms) based on gender identity.

The UADA does not explicitly require employers to make reasonable accommodations to the religious practices of employees.  But, it does provide employees a right to express religious or moral beliefs and commitments in the workplace in a “reasonable, non-disruptive, and non-harassing way” on equal terms with similar types of expression allowed in the workplace.  The UADA provides an exception where the expression is in “direct conflict” with the “essential business-related interests” of employers.

Similarly, the UADA prohibits employers from discriminating (including harassing) or retaliating against employees or applicants based on “lawful expression or expressive activity” outside the workplace about the employees’ “religious, political, or personal convictions, including convictions about marriage, family, or sexuality.”  As with expressive activity in the workplace, the UADA also provides an exception where this expressive activity is “in direct conflict with the essential business-related interests of the employer.”

What Is Not Discrimination

The UADA provides certain exceptions from its prohibitions.  One such exception is for requirements based on a protected characteristic where the characteristics are bona fide job qualifications.  For example, an acting company can limit its hiring for female roles to women.

The UADA also provides that it is not a discriminatory or prohibited employment practice for an employer to give preference in employment to any of the following persons:

  • a spouse, child, son-in-law, or daughter in law;
  • a person for whom the employer is or would be liable for financial support if the person were unemployed;
  • a person to whom the employer furnished more than one-half of total financial support during the preceding six months; and
  • a person whose education or training is substantially financed by the employer for two years or more.

The UADA further allows actions relating to age (except for failing to hire or termination) when observing the terms of a bona fide seniority system or employment benefit plan.  Employers may also impose compulsory retirement for employees who are at least 65 and who were employed in bona fide executive or high policy-making positions for at least two years immediately before retirement if they are entitled to an immediate nonforfeitable retirement benefit of at least $44,000 per year.

Remedies

The UADA provides an administrative remedy for violations of its provisions.  Id. § 34A-5-107.  This administrative remedy is the exclusive remedy under Utah law for conduct prohibited by the UADA.

A person aggrieved by a prohibited employment practice may file a charge of discrimination with the Antidiscrimination and Labor Division (UALD) of the Utah Labor Commission within 180 days after the practice occurred.  The UADA requires the UALD to attempt a settlement by conference, conciliation, or persuasion.  If this is unsuccessful, the UALD is required to investigate the charge and issue a determination and order based on its findings.  A party who doesn’t like the result may request an evidentiary hearing before an administrative law judge in the Commission’s Adjudication Division.  An order issued by the Adjudication Division may be appealed to the Commissioner or the Commission’s Appeals Board.  An order of the Commission is, in turn, subject to judicial review.  A charging party may withdraw from the process at any time before a final order is issued.

If the UALD, Adjudication Division, or Labor Commission (as applicable) finds that the UADA was violated, it may order “make whole” relief.  This can include an order to cease a prohibited employment practice, reinstate an employee, and pay back wages, benefits, attorney fees, and costs.  If the prohibited practice includes discrimination in compensation, the charging party may be awarded an additional amount equal to the back pay award unless the employer shows it acted in good faith and with reasonable grounds to believe it was not discriminating in compensation.

[1] As mentioned in a previous post, the Utah legislature is currently considering a bill that would broaden the definition of employer.  It is unclear if this bill will be passed, either in its current form or a modified form.  Even if it does not pass, however, similar bills likely will be introduced in the future.  More importantly, regardless of whether a business falls in the statutory definition of “employer,” it is begging for trouble to discriminate against anyone in employment.  Just don’t go there.


March 20th, 2019: Are there any Utah laws that prohibit retaliation against employees?

Yes.

The following Utah statutes (listed in alphabetical order—except for the last one, which is not yet in effect) expressly prohibit retaliation against employees in Utah:

  • Employment of Minors, Utah Code § 34-23-101 et seq. This statute prohibits any person, whether individually or as an officer, agent, or employee of any person, firm, or corporation, from discharging an employee, threatening to retaliate against, or retaliating against an employee because the employee has testified, is about to testify, or the employer believes may testify in an investigation or proceeding relating to the enforcement of the statute.  A violation of this statute is a class B misdemeanor.  Id. § 34-23-402(2)(g).
  • Jury and Witness Act, Utah Code § 78B-1-101 et seq. This statute forbids employers from firing, threatening to fire, taking any adverse employment action, or otherwise coercing an employee for receiving or responding to a summons, serving as a juror or a grand juror, or attending court for jury or grand jury service.  An employer that violates this statute is guilty of criminal contempt and is subject to a fine of up to $500, imprisonment up to six months, or both.  An employee who is discharged in violation of this statute may bring a civil action within 30 days to recover wages lost as a result and obtain an order of reinstatement, plus reasonable attorney fees.  Id. § 78B-1-116.
  • Payment of Wages, Utah Code § 34-28-1 et seq. This statute prohibits an employer from discharging, demoting, or engaging in any form of retaliation against an employee who has filed a complaint or testified in proceedings relating to the enforcement of the statute.  It also bars such actions against an employee who is going to file such a complaint or testify in such a proceeding—or who the employer believes may file such a complaint or testify in such a proceeding.  Id. § 34-28-19.

An employee claiming retaliation in violation of this statute may file an administrative complaint with the Antidiscrimination and Labor Division (UALD) of the Utah Labor Commission.  The statute directs the UALD to attempt to reach a settlement between the parties through a settlement conference or to investigate the complaint.  If the UALD determines a violation has occurred, it may require the employer to cease any retaliatory conduct and compensate the employee for any lost wages and benefits.  Id.  In addition, an employee with a wage claim for more than $10,000 may bring a private action in state court and, if successful, may recover actual damages plus an amount equal to 2.5% of the unpaid wages owed, assessed daily, for the lesser of 20 days after the court issues a final order or until the unpaid wages are paid.  Id. § 34-28-9.5(2).  In addition, in certain circumstances, an employee may recover a penalty of up to 60 days’ pay,   Id. (citing to id. § 34-28-5(1)(c)).  An employee with a wage claim for $10,000 or less must first exhaust certain administrative remedies.  Id. § 34-28-9.5(1).

  • Securities Fraud Reporting Program Act, Utah Code § 61-1-101 et seq. This statute prohibits employers from taking adverse action against an employee who provides original information to the Securities Division or Securities Commission in accordance with the statute; initiates, testifies in, or assists in any investigation, judicial action, or administrative action based on or related to original information provided to the division or commission; or discloses information required or protected under the Utah Uniform Securities Act or various federal statutes and regulations, including the Sarbanes-Oxley Act of 2002 and the Securities Exchange Act of 1934.  Id. § 61-1-104.
  • Utah Antidiscrimination Act (UADA), Utah Code § 34A-5-101, et seq. The UADA defines retaliation as an adverse action by a covered employer against an otherwise qualified employee or applicant because the person has participated in protected activity.  Id. § 34A-5-102(1)(y).  Such protected activity includes opposing an employment practice prohibited by the UADA, and filing charges, testifying, assisting, or participating in any way in a proceeding, investigation, or hearing under the UADA.  Id.

Although the UADA prohibits an employer from discriminating against an otherwise qualified person because the person is in a protected class, the definition of “retaliate” appears to broaden this protection to persons not in a protected class but who engage in protected acts.  In addition, pursuant to a 2015 amendment, the UADA also prohibits employers from retaliating against employees or applicants, otherwise qualified, based on “lawful expression or expressive activity” outside of the workplace about the personal “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.”  Id. § 34A-5-112(2).  For a more detailed discussion of the UADA, see our post here.

  • Utah Minimum Wage Act (UMWA), Utah Code § 34-23-101 et seq. The UMWA provides that it is a class B misdemeanor for any person, “whether individually or as an officer, agent, or employee of any person, firm, or corporation to,” among other things, discharge an employee or threaten to or retaliate against an employee because the employee has testified, is about to testify, or the employer believes that the employee may testify in any investigation or proceedings relative to the enforcement of the UMWA.  Id. § 34-23-402.
  • Utah Occupational Safety and Health Act (UOSH Act), Utah Code § 34A-6-101, et seq. The UOSH Act prohibits employers from discharging or retaliating against employees for filing a complaint with the Utah Occupational Safety and Health Division (Division) about a perceived UOSH Act violation, participating in a proceeding under the UOSH Act, or exercising a right under the UOSH Act.  Id. § 34A-6-203.  In furtherance of this prohibition, the UOSH Act provides a specific administrative remedy for employees who believe they have been “discharged or otherwise retaliated against” in violation of the UOSH Act; requires the Division to investigate such complaints and issue appropriate orders; and provides for specific relief that may be awarded to aggrieved employees.  Id.
  • Utah Protection of Public Employees Act, Utah Code § 67-21-1, et seq. This statute prohibits a public body or public entity that employs an employee from taking adverse action against an employee because the employee, or a person authorized to act on behalf of the employee communicates in good faith (i) the waste or misuse of public funds, property, or manpower; (ii) a violation or suspected violation of a law, rule, or regulation adopted under the law of the state of Utah, a political subdivision of the state, or any recognized entity of the United States; or (iii) as it relates to a state government employer: (A) gross mismanagement; (B) abuse of authority; or (C) unethical conduct.  Id. § 67-21-3.
  • Utah State Personnel Management Act, Utah Code § 67-19-1 et seq. This statute prohibits discriminatory or prohibited employment practices as defined in the UADA (discussed above), which include retaliation.  Id. § 67-19-32.  The statute further provides express procedural steps to be followed by employees alleging retaliatory action.  Id. § 67-19a-402.5.
  • Emergency Services Volunteer Employment Protection Act, H.B. 173.  Recently enacted by the Utah legislature during the 2019 Utah general legislative session, H.B. 173 prohibits an employer from terminating an employee solely for being an emergency services volunteer, or for being absent from or late to work, if at the time, the employee was responding to an emergency as an emergency services volunteer.  H.B. 173 permits an employer to require a statement from the emergency services volunteer’s supervisor to verify that the employee was responding to an emergency.  An employer is not required to pay such an employee for the time the employee is absent or late to work.  An employee who is terminated in violation of H.B. 173 will have a private right of action against the employer to obtain an order of reinstatement and to recover back wages.

In addition to the statutes listed immediately above, numerous Utah statutes implicitly prohibit retaliation by expressly prohibiting employers from either requiring employees to give up certain rights as a condition of continued employment or terminating employees for exercising certain rights or complying with certain obligations.  See generally our post about the various statutory exceptions to the employment at will doctrine in Utah.

Further, as discussed in our post about the public policy exception to the employment-at-will doctrine, the Utah Supreme Court has held that there are some instances where, even in the absence of an express statutory prohibition on the termination of an employee in retaliation for exercising certain rights or complying with certain obligations, such a termination amounts to a wrongful discharge in violation of public policy.


March 29th, 2019: Does Utah Have Any Laws On Employee Privacy?

Yes.

Utah has several statutes and various common law (non-statutory) doctrines that bear on employee privacy.

Utah Statutes

Several Utah statutes implicate employee privacy rights in various aspects.  These statutes are discussed briefly below.

Genetic Information Privacy

The Genetic Testing Restrictions on Employers Act, Utah Code § 34A-11-101 et seq., requires employers to comply with Utah’s Genetic Testing Privacy Act (GTPA).  The GTPA, in turn, prohibits employers from requesting, asking about, accessing, or considering private genetic information in connection with a decision related to hiring, promotion, or retention.  Id. § 26-45-103(1).  The GTPA provides an exception that allows an employer to seek an order from a court or administrative agency compelling the disclosure of private genetic information in either of the following two situations:

    1. an employment-related judicial or administrative proceeding in which the individual has placed his or her health at issue, or
    2. an employment-related decision in which 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.”

Id. § 26-45-103(2)

The GTPA defines “private genetic information” as information about the  genetic makeup of a person or a direct relative of the person that comes from a genetic test or DNA analysis.  Notably, however, it does not include information that comes from a routine physical examination; a routine chemical, blood, or urine analysis; a test for drugs or HIV infection; or a test performed because the person has signs or symptoms of a disease, illness, impairment, or disorder.  Id. § 26-45-102(7)

The GTPA provides a private right of action to a person whose rights have been violated under the statute.  Such a person may seek the following relief for each violation:

    • equitable relief,
    • actual damages sustained,
    • $100,000 if the violation is a result of an intentional and willful act,
    • Punitive damages if the violation is the result of a malicious act, and
    • reasonable attorney fees.

Id. § 26-45-105.

In addition, the attorney general may bring an action against an employer seeking to enjoin any violation and to recover a civil fine of up to $25,000 per intentional violation along with reasonable costs of investigation and litigation.  Id. § 26-45-106.

Intercepting Employee Communications and Implanting RFID Tags.

Interception of Communications Act, Utah Code § 77-23a-1, et seq. (ICA).  The ICA generally prohibits employers (and other “persons”) from intentionally or knowingly intercepting or trying to intercept (or getting anyone else to do so) wire, electronic, or oral communications of employees (or other persons).  Id. § 77-23a-4(1)(b).  However, employers may intercept such communications if they have employee consent to the interceptions or if they are a party to the intercepted communications—unless the interceptions are for committing criminal or tortious acts.  Id. § 77-23a-4(7)(b).  Violations of this portion of the ICA are third-degree felonies.  Id. § 77-23a-4(10)(a).

The ICA also prohibits employers (and other persons) from requiring employees to have radio frequency identification (RFID) tags implanted under their skinId. § 77-23a-4.5.  Violations of this prohibition are class A misdemeanors.  In addition, person whose rights are violated under this provision may sue for actual damages, compensatory damages, punitive damages, injunctive relief, or any combination.  Id.

Photographing, Recording, and Electronically Monitoring Employees

Privacy Violation, Utah Code § 76-9-402.  This statute prohibits persons (including employers) from installing or using devices for observing, photographing, hearing, recording, amplifying, or broadcasting sounds or events in any private places unless they have the consent of the persons who are entitled to privacy in those places.  It doesn’t matter if the devices are installed inside or outside of the private places.  Violations of this statute are class B misdemeanors.

Communication Abuse, Utah Code § 76-9-403.  This statute bars persons (including employers) from intercepting, without the consent of the sender or receiver, messages by telephone, letters, or other methods of private communication.  It further bars employers from divulging, without the consent of the sender or receiver, the existence or contents of any such messages if employers know that the messages were illegally intercepted.  Violations of this statue are also class B misdemeanors.

Private Social Media and Internet Accounts

Internet Employment Privacy Act (IEPA), Utah Code § 34-48-101 et seq.  The IEPA prohibits employers from asking applicants or employees to disclose usernames and passwords to personal Internet accounts (e.g., email, social media, etc.).  It also prohibits employers from refusing to hire or taking adverse action against applicants or employees for failing to disclose such information.  Id. § 34-48-201.  However, employers may require employees to disclose usernames and passwords to gain access to electronic communications devices supplied by or paid for in whole or in part by the employers or to accounts or services provided by the employers in connection with the employees’ employment and used for the employers’ business purposes.  Id. § 34-48-202.  Applicants or employees whose rights under the IEPA are violated may sue for a penalty of up to $500.  Id. § 34-48-301.

Social Security Numbers, Birth dates, and Driver License Numbers

Employment Selection Procedures Act, Utah Code § 34-46-101 et seq. (ESPA).   The ESPA forbids employers of 15 or more persons from asking for social security numbers, dates of birth, or driver license numbers before making a job offer  Id. § 34-46-201(1).  The ESPA provides an exception if the applicant consents to the request and the employer asks all applicants for the position for the same information at a time in the selection process when the employer does one of the following:

    1. obtains a criminal background check;
    2. secures a credit history report;
    3. acquires a driving record;
    4. conducts a review of its internal records to determine if the applicant previously applied for a position with, or was previously employed by, the employer; or
    5. collects the information to provide to a government entity to determine eligibility for or participate in a government service, benefit, or program that requires the information be collected on or before the day on which an offer of employment is made.

Id. § 34-46-201(2).  The ESPA also prohibits an employer from using such information (or any information about an applicant obtained through the “initial selection process”) for any purpose other than determining whether to hire the applicant (including for marketing, profiling, reselling the information, or a similar use).  Id. § 34-46-202.  It further prohibits employers from providing such information to anyone else except for one of the following reasons:

    1. as required by law;
    2. to a government entity for the purpose of determining eligibility for or participating in a government service, benefit, or program;
    3. if the applicant applies for another position with the employer; or
    4. if the applicant becomes an employee and the information is used by the employer for a performance review or promotion application that is also applied to other employees in a similar position.

Id.

The ESPA requires that employers maintain a specific policy about the retention, disposition, access, and confidentiality of information about applicants obtained through an initial selection process; show the policy to applicants on request before requiring them to provide any such information; and dispose of the information within two years after it is obtained if the applicants are not hired in that period.  Id. § 34-46-203.  The ESPA directs the Antidiscrimination and Labor Division of the Utah Labor Commission to investigate alleged violations of the statute, conduct administrative adjudications of complaints of violations of the statute, and, order violating employers to cease and desist and/or pay a $500 fine.  Id. § 34-46-301.

Use of Employee Names and Pictures for Advertising

Abuse of Personal Identity Act, Utah Code § 45-3-1 et seq. (APIA).  The APIA bars persons (including employers) from publishing advertisements containing any person’s name, title, picture, or portrait in such a way that “expresses or implies that the individual approves, endorses, has endorsed, or will endorse” the subject of the advertisement, without the consent of the person portrayed.  Id. § 45-3-3.  A person whose rights under the APIA are violated may sue for injunctive relief, damages, punitive damages, and reasonable attorney fees and costs.  Id. § 45-3-4.

Utah Common Law

There are four types of invasion of privacy claims that can be maintained under Utah common law: (1) intrusion upon solitude/seclusion; (2) appropriation of a person’s name or likeness; (3) public disclosure of embarrassing private facts; and (4) publicity that places the person in false light in the public’s eye.  Each is discussed briefly below.

1.     Invasion of Privacy – Intrusion Upon Seclusion.  An employee can this claim by showing the following:

      • there was an intentional substantial intrusion, physical or otherwise, on the employee’s solitude or seclusion; and
      • the intrusion would be highly offensive and objectionable to a reasonable person.

See Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374 (Utah Ct. App. 1997).

2.     Invasion of Privacy – Appropriation of Name or Likeness. An employee can establish this claim by showing that the employee’s name or likeness has some intrinsic value and that either or both were used for someone else’s benefit, on more than an incidental basis, without the employee’s consent.  See Cox v. Hatch, 761 P.2d 556 (Utah 1988).

3.     Invasion of Privacy – Private Facts Made Public. An employee can establish this claim by showing the following:

      • the disclosure of facts about the employee was public and not private,
      • the facts the employer disclosed were private, and
      • the matter made public would be highly offensive and objectionable to a reasonable person.

See Shattuck-Owen v. Snowbird Corp., 2000 UT 94, ¶¶ 11-13.

Invasion of Privacy – False Light. An employee can prove this claim by showing the following:

      • the employer publicized a matter concerning the employee that put the employee in front of the public in a false light;
      • the false light would be highly offensive to a reasonable person; and
      • the employer knew it would paint the employee in a false light or did not care that it would.

See Jensen v. Sawyers, 2005 UT 81.  Notably, the publication involved in this type of claim does not necessarily have to be defamatory and does not have to be about private facts.  An employee conceivably may be placed in a false light even by “the dissemination of praiseworthy but untrue information about that person, if a reasonable person would find the information highly objectionable.”  Id. at ¶46.