Employment Law Update

Michael Patrick O’Brien
April 7, 2009 | COMMENTS

The federal appeals court with jurisdiction over Utah has upheld an Oklahoma law that requires employers to allow employees to keep guns in locked vehicles, even when on employer property. Specifically, the Oklahoma law prohibits any "person, property owner, tenant, employer or business from establishing any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle."

Several employers challenged the law when it was passed in 2004 by the Oklahoma legislature. The employers won the first round of the legal battle when an Oklahoma federal trial court judge ruled that the state law was trumped by the federal Occupational Safety Act. The appeals court reversed, however, principally because OSHA, in 2006, declined to adopt a standard on this issue and instead decided to defer to state and local authorities. The Utah Legislature is considering passage of a bill similar to Oklahoma's law. Seven other states (Minnesota, Alaska, Kentucky, Kansas, Georgia, Louisiana, and Florida) have similar laws on the books.

Federal Legislative and other Updates

The economic stimulus bill passed by Congress includes employee "whistle blowing" provisions prohibiting retaliation against persons reporting misuse or mismanagement of any federal stimulus funds. The stimulus legislation also makes some significant changes to the privacy and security rules for health plans.  

Congressional Republicans have introduced a bill that would preserve the right of a secret ballot election in a union campaign. The bill is a response to the Employee Free Choice Act, which will allow unionization via a card signature system in lieu of a secret ballot. Finally, President Obama has begun the process of reversing a new federal "conscience" rule that allows health-care workers to refuse to provide care that violates their personal, moral, or religious beliefs. The rule set to be repealed allowed the federal government to cut off federal funds from health-care providers that did not accommodate employee beliefs when providing care.

Worker's Comp and the Intent to Injure Standard

The Utah Supreme Court recently issued a ruling allowing an employee to sue her employer for workplace injuries, outside the worker's compensation system. The case involves a woman injured by exposure to toxic gases after the employer allegedly failed to warn her of a previous similar incident. Typically, the worker's compensation system provides the exclusive remedy for such injuries. However, the Utah Supreme Court ruled this could be viewed as an intentional injury outside the system. This "intent to injure" standard focuses on whether an employer knew or expected that injury would result as a consequence of its actions.

Bar Study on Employment Discrimination Claims in Court

A recent study of workplace discrimination litigation (analysis of 1788 randomly selected federal employment discrimination cases) has reached the following interesting conclusions: "(1)  After a relative lull in the late 1980s, the overall number of employment discrimination claims filed began to rise sharply in the early 1990s, reached a high point around1996, and steadily declined throughout the late 1990s before leveling off in the early 2000s; (2) the highest percentage of cases claim racial discrimination, followed by claims of sex, age, and disability discrimination; (3) discrimination in firing and employer retaliation are by wide margins the most frequently challenged employer practices;(4) settlement is the most frequent outcome of an employment discrimination case, whereas trials are extremely rare; (5) the overwhelming majority of employment discrimination cases consist of a solitary plaintiff. Cases involving multiple plaintiffs, class actions, and representation by the EEOC or a public interest law firm are extremely rare but plaintiffs in these cases have more favorable outcomes; (6) dismissal is the most likely outcome when the complainant files pro se, accounting for an enormous 40 percent of all such cases (compared to an 11 percent dismissal rate when the plaintiff has representation); (7) just 20 (well under 1 percent) cases in the sample standard were certified class actions; (8) trials-invariably the least common EDL outcome-become increasingly infrequent throughout the entire1987-2003 period."

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.