Utah News & Analysis

  • Workers required to be franchisees may be employees under FLSA

    In the Brothers Grimm's fairy tale "Rumpelstiltskin," a miller's daughter (who would later become queen) must spin straw into gold—something she can't do—or face death. A strange man, Rumpelstiltskin, shows up and claims he can spin the straw into gold in exchange for the future queen's firstborn child. Desperate, she makes the foolish deal. Naturally, when the child is born, the queen wants out of the deal. When Rumpelstiltskin arrives for the child, he foolishly gives the queen an opportunity to keep her child, telling her that if she can guess his name, he will let her keep her child. As the story goes, while wandering in the woods, she overhears Rumpelstiltskin say his own name, which allows her to escape her foolish decision.

  • Worker's death shines spotlight on OSH Act's General Duty Clause

    The Occupational Safety and Health Act's (OSH Act) General Duty Clause requires employers to provide employment and a place of employment that are free from recognized hazards. Importantly, the clause isn't focused on punishing employers for injuries caused by hazards; rather, its focus is on the prevention of hazards in the first place. Thus, an employer will be found to have violated the General Duty Clause—even when the hazard doesn't actually result in injury or death—if (1) there is a recognized hazard that may cause serious injury or death and (2) the employer could remove that hazard by using an economically and technologically viable method. A recent decision involving a tragic accident illuminates the General Duty Clause's focus and your duties under it.

  • Subcontractor arrangements: Liability is based on how employer treats workers

    Most people are familiar with the shell game. In its most basic form, a con artist or a magician places an item (such as a ball) under one of three or more identical containers (such as shells, cups, or thimbles). He then shuffles the containers, and the players guess the final landing spot of the container that's covering the item. If the correct container is selected, the guesser wins; otherwise, the con artist or magician wins.

  • Can you keep a secret? How to handle 'confidential' employee complaints

    As we noted in the previous article, the #MeToo movement just turned one. And while its long-term effects on the workplace remain to be seen, it's commonly expected that increasing numbers of women (and some men) will be informing their employers about problems with sexual harassment.

  • Questions about ramped-up immigration-related worksite inspections

    This month, we provide answers to questions some of our clients have been asking.

  • It's wise to cover foreign doctor's bills for employee

    Q One of our employees traveled to Mexico for business. She ended up getting the flu, and a doctor came to see her at the hotel. Unfortunately, her health insurance doesn't cover treatment in Mexico. Since the illness occurred during business travel, do we need to cover the cost of the doctor?

  • No surprise—firing sales rep to avoid paying commissions backfires

    In the 1980s comedy The Money Pit, a couple purchases a mansion at a surprisingly low price. Although the price should tip them off, they think they've landed an amazing deal they can't refuse. Their expectations, which are through the roof, are crushed as everything but the roof seems to come crashing down. It soon becomes apparent that their expectations weren't warranted.

  • Arbitration agreements: a blessing and a potential curse

    Many employers include arbitration clauses in their employment contracts. After all, not only do many companies view arbitration as a cheaper and speedier way to resolve disputes, but the Federal Arbitration Act (FAA) also prevents courts from reviewing most arbitration decisions. But that doesn't mean all arbitration decisions are off-limits. Furthermore, because the decision to arbitrate is the result of a contract, the party that draws up the contract needs to be very sure that it drafts the agreement carefully. DISH Network recently learned a hard lesson about the potentially broad powers of arbitration as well as the need to draft agreements carefully.

  • 'Any person' can be held responsible for FLSA retaliation

    As the character Inigo Montoya observes in The Princess Bride: "There's not a lot of money in revenge." Retaliation is seldom a good idea. But retaliating against an employee for complaining about violations of the Fair Labor Standards Act (FLSA) is never a good idea. The U.S. Department of Labor (DOL) will seek to enforce the laws against retaliation, and there can be serious ramifications.

  • USCIS proposes rule to prevent government dependence

    A couple of new policies announced by U.S. Citizenship and Immigration Services (USCIS) are spreading concern among immigrant groups. Here's a quick recap.