By: Mark A. Wagner, Employment and Litigation Attorney
February 21st, 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 fifth installment is below.
Question of the Week: 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.
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.
- 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:
- obtains a criminal background check;
- obtains a credit history report;
- obtains a driving record;
- 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
- 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:
- as required by law;
- to a government entity for the purpose of determining eligibility for or participating in a government service, benefit, or program;
- if the applicant applies for another position with the employer; or
- 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.
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:
- an employment-related judicial or administrative proceeding in which the individual has placed his or her health at issue, or
- 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.”
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.
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.
 Numerous federal statutes also bear on the hiring process, but they are not the focus of this post.
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.