By: Mark A. Wagner, Employment and Litigation Attorney
March 20, 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 eighth installment is below.
Question of the Week: Are there any Utah laws that prohibit retaliation against employees?
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 employer who terminates an employee 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.
Check back next week for more Utah Employment Law FAQs.
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.