As a Utah employer, you are obligated to know and comply with all state and federal laws dealing with employees. In many aspects of employment law, Utah follows federal law. The regulatory environment is not as harsh for Utah employers, with fewer state regulations burdening employers than many other states. However, Utah employers must face reality and understand that ignorance of any employment regulation is not an excuse to get out of fines or penalties. Dana Ball has affordable monthly subscription packages to help Utah employers navigate their human resource obligations. Protect your business and call us to get answers you need so you are not caught blindsided.
As of January 2016 Utah’s minimum wage is $7.25 per hour per the Utah Minimum Wage Act (UMWA)(Utah Admin. Code R610-1- 3(A)). Employees receiving tips of at least $30 per month may be paid a cash wage of $2.13 per hour, if the total of the cash wage and tips is at least $7.25 per hour. Minors (under 18 years) may be paid $4.25 per hour as a training wage for the first 90 days of employment.
Utah Payment of Wages Act (UPWA), requires that every employer notify each employee at the time of hiring of the day and place of payment, the rate of pay, and any change to these terms prior to the change. (Utah Code Ann. § 34-28-4(1)).
When an employee is terminated by the employer, all wages are due immediately and are payable within 24 hours of termination. Failure to pay wages due within 24 hours of a written demand will result in the employee continuing to earn wages until paid, or for 60 days, whichever comes first. When an employee quits or resigns employment and has no written contract for a definite period, all wages must be paid on the next regular payday.
All commission due to a sales rep. must be paid within 30 days after the day on which the termination is effective if the commission was due on the day of termination. If the commission is due after the day of termination, then the commission is due 14 days after the day the commission becomes due. (Utah Code Ann. §34-44-202(2)).
Deductions from wages are lawful when: (1) the employer is required or authorized to do so by state or federal law (e.g., taxes, social security, etc.), or pursuant to a court order; (2) the employee expressly authorizes the deduction in writing; (3) the employer presents evidence that, in the opinion of a hearing officer or administrative law judge, would warrant an offset; and (4) contributions under a benefits contract or plan established by the employer are required. If deductions are made, the employer must, on each regular payday, furnish the employee with a statement showing the total amount of each deduction.
Other deductions from wages are lawful if certain requirements are met so review with legal counsel before making these deductions: (1) Repayment to employer of advances or loans; (2) for amounts as a result of loss or damage occurring from the criminal conduct of the employee against the property of the employer; (3) For sums resulting from cash shortages; (4) For the purchase of goods, tools, equipment, or other items required for the employment of a person; (5) For payment of goods, tools, equipment, or other items furnished and assigned to the employee by the employer; and (6) For damages suffered by the employer due to the employee’s negligence (U.A.C. R610-3-18(G)). If deductions are made, the employer must, on each regular payday, furnish the employee with a statement showing the total amount of each deduction.
Utah does not require that employers provide meal or rest breaks to adult employees. If an employer chooses to provide a meal period to employees aged 18 or older, it will not be considered paid time if the meal is 30 minutes or longer and the employee is completely relieved from duty. If short rest breaks are provided, they are generally considered paid time. Minors are entitled to a meal period of at least 30 minutes within the first five hours of their workday. The meal period must be paid if the minor is not relieved of all duties. Minors are also entitled to a 10-minute break during every 4 hour period, with the break scheduled so that the minor is not required to work over three hours without such a break (Utah Admin. Code R.610-1-12; R610-2-3).
Employers can generally require employees to work any length of day and can discipline or terminate employees who do not perform duties or hours as assigned. A minor under 16 is not to be employed or permitted to work during school hours, except as authorized by proper school authorities. There are other restrictions for the hours a minor is permitted to work. Digital Reference Guide to the Fair Labor Standards Act.
Utah has no law governing overtime for employees of private employers, so any overtime obligations and exemptions come from federal law. The Fair Labor Standards Act generally requires employers to pay overtime to all non-exempt employees at a rate of one and one-half times the employee’s regular rate for all hours worked in excess of 40 per 7-day work week. This Act contains numerous exemptions from the minimum wage and overtime requirements.
What to expect with a Wage and Hour Investigation?
The Utah Division of Anti-discrimination and Labor Commission (the Commission) investigates wage claims of $50 to $10,000 and can assess a 5 percent penalty of the unpaid wages. The penalty is assessed daily, until paid, for up to 20 days (UT Code Sec. 34-28-9). The Commission has the authority to investigate the claim, hold hearings, and issue orders requiring an employer to pay. In addition to obtaining the wages owed, the Commission can also assess a penalty against the employer.
Utah state law requires employers to keep an accurate record of time worked and wages paid each pay period. The Commission has the authority to enter any place of employment during business hours to inspect an employer’s records and ensure compliance (UT Code Sec. 34-28-10).
Under Utah’s Labor Code (UT Code Sec. 34A-1-405), employers must provide all books, records, and payrolls that show the amount of wage expenditure, for the purpose of ascertaining:
- The correctness of the wage expenditure
- The number of individuals employed
- Other information that the Commission may find useful
Failure to submit any books, records, or payrolls that the Commission requests in writing carries a $100 penalty for each offense.
- Examine workplace conditions to make sure they conform to applicable OSHA standards.
- Make sure employees have and use safe tools and equipment and properly maintain this equipment.
- Use color codes, posters, labels or signs to warn employees of potential hazards.
- Establish or update operating procedures and communicate them so that employees follow safety and health requirements.
- Keep records of work-related injuries and illnesses. (Note: Employers with 10 or fewer employees and employers in certain low-hazard industries are exempt from this requirement).
- Correct cited violations by the deadline set in the OSHA citation and submit required abatement verification documentation.
- OSHA encourages all employers to adopt an Injury and Illness Prevention Program. Injury and Illness Prevention Programs, known by a variety of names, are universal interventions that can substantially reduce the number and severity of workplace injuries and alleviate the associated financial burdens on U.S. workplaces.
Workplace Recruitment and Hiring
The recruitment and hiring of new employees requires careful consideration of business and legal issues. Some of the laws that apply to recruiting and hiring of employees in the state of Utah are:
Title VII of the Civil Rights Act of 1964 and Utah Code Ann. § 34A-5-101 et seq., prohibits discrimination (which includes harassment) in employment practice because of race, color, religion, sex or national origin, pregnancy, childbirth, or pregnancy-related conditions, age, disability, sexual orientation, or gender identity. (See also, Section 1981 of the Civil Rights Act of 1866 (42 U.S.C. § 1981)). This law is administered by the Utah Labor Commission, Utah Anti-discrimination & Labor Division. The statute applies to employers with 15 or more employees within Utah for each working day in each of at least 20 calendar weeks in the current or preceding calendar year. As of March 2015, sexual orientation and gender identity are protected characteristics under Utah law.
Genetic Information Nondiscrimination Act of 2008 (GINA) and the Private Genetic Information under Utah Code § 26-45-103(1), in connection with hiring, an employer may not:
- Access or otherwise take into consideration private genetic information about an individual.
- Request or require an individual to consent to a release for accessing private genetic information about the individual.
- Request or require an individual or his blood relative to submit to a genetic test.
- Inquire into or otherwise take into consideration the fact that an individual or his blood relative has taken or refused to take a genetic test. The prohibition is set out in Section 26-45-103 of the Utah Code. The law is enforced by the Utah Department of Human Services. All employers with one or more employees are covered by the law (Utah Code § 26-45-103(1)).
National Labor Relations Act (NLRA) covers union and non-union employees engaged in lawful protected and concerted activity. Concerted, protected activity is activity engaged in by one or more employees with the intention of improving the terms and conditions of employment of all employees. Employers should not maintain work rules that prohibit employees from discussing their wages or benefits with co-workers, as such rules generally violate the NLRA.
Immigration Reform and Control Act of 1986 (IRCA) and the Utah Immigration Accountability and Enforcement Act (UIAEA), which states that it is illegal for an employer to knowingly hire aliens unauthorized for employment and that applicants must present documents establishing their identity and employment eligibility prior to any final offer of employment. (Utah Code Ann. § 63G-12-101 et seq.)..
Private Employer Verification Act and the UIAEA, states that employers must register with and use a status verification system like E-verify to verify the employment authorization of new employees if the employer is either: A private employer who employs 15 or more employees. Private employers must verify the eligibility of the new employee after hiring using E-verify. For new employees holding H-2A or H-2B nonimmigrant visa statuses then employer uses the U-verify system. Utah Code § 63G-12-301(2)).
Uniformed Services Employment Reemployment Rights Act of 1994 (USERRA) provides that returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to qualify for reemployment. There are additional considerations and requirements depending on the circumstances.
Utah Criminal Investigations and Technical Services Act(UCITSA) does not restrict an employer’s ability to use criminal record information for both arrests and conviction relating to an employee or applicant. (Utah Code Ann. § 53-10-108 et seq.).
In Utah, an employment relationship for an indefinite term is presumed to be employment at will and terminable at any time. An employee may overcome the presumption of at-will employment by showing that the parties entered into an implied contract.
- Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 333 (Utah 1992) (may overcome presumption of employment at-will “by showing that the parties created an implied-in-fact contract, modifying the employee’s at-will status”)
- Cabaness v. Thomas, 2010 UT 23, 232 P.3d 486, 502-503 (2010) (evidence may include announced personnel policies, employment manuals, the course of conduct between the parties, and relevant oral representations). See also Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989)
- Caldwell v Ford, Bacon & Davis Utah, Inc., 777 P.2d 483, 485 (Utah 1989) (“an employer’s internally adopted policies and procedures concerning discharge can be sufficient evidence to rebut the presumption of at-will employment, and can, in effect, become part of the contractual relationship”)
- Tomlinson v. NCR Corp., 2014 UT 55, 345 P.3d 523, 529-30 (2014) (“a ‘clear and conspicuous disclaimer, as a matter of law, prevents employee manuals or other like material from being considered as implied-in-fact contract terms.’” “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.”)
In Utah, an employer may be liable to a third party for an injury caused by a negligently hired employee.
Utah law mirrors the federal Electronic Communications Privacy Act with regard to employees rights with privacy and monitoring. Monitoring phone calls, video or audio recordings requires ONE-PARTY consent only. (Utah Code §77-23a-1 et seq.).
Utah Drug and Alcohol Testing Act (UDATA), governs drug and alcohol testing of employees and applicants of private employers. Employers and managers testing employees and applicants under the UDATA must generally also test themselves on a period basis. (Utah Code Ann. § 34-38-1 et seq.).
Utah Internet Employment Privacy Act (UIEPA), protects the privacy of employees and job applicants with personal internet accounts and protects against discrimination. (Utah Code Ann. § 34-48-101 et seq.). UIEPA prohibits an employer from requiring an employee or applicant to provide a password, username, or other information to give the employer access to his or her personal Internet media accounts. (Utah Code Ann. § 34-48-201 et seq.).
No Utah state authority governing information that an employer must include in a job application. Unless required by a business necessity, Utah job applications should not include questions about the following: race, color, religion, sex, sexual orientation, gender identity, Age, Disability, National Origin, Pregnancy, childbirth, or related conditions, or Genetic information. (Utah Code Ann. §34A-5-106(1)(d)).
Utah Employment Selection Procedures Act (UESPA), (with some exceptions) prohibits an employer from requesting an applicant’s social security number, date of birth, or driver’s license number before offering him or her a job. (Utah Code Ann. § 34-46-201(1)).
Utah Post-Employment Restrictions Act (H.B. 251), states that non-compete agreements entered into between an employer and an employee on or after May 10, 2016, must be limited to one year. (Utah Code Ann. §§ 34-51-101, et seq.).
The Utah Supreme Court held that employee confidentiality agreements are enforceable where supported by consideration, negotiated in good faith, and are necessary to protect a company’s legitimate interest. Factors affecting the reasonableness of a confidentiality agreement include the nature of the employee’s duties and the nature of the information that the employer seeks to protect.
The Utah Supreme Court has indicated that employee non-solicitation agreements are enforceable where supported by consideration, negotiated in good faith, necessary to protect a company’s legitimate interest, and are reasonably limited in time and geographic area.
Utah has no law restricting how employers can use credit reports. The Federal Credit Reporting Act (FCRA) addresses when and how employers can pull employees’ or applicants’ credit/consumer reports. See USCS §1681b(b)(2) Conditions for furnishing and using consumer reports for employment purposes; Disclosure to consumer.
Only applicable to employers of 50 or more employees; 12 weeks unpaid, job-protected leave