By Greg Smith posted in Wage & Hour Claims on Saturday, February 27, 2016
The United States Department of Labor (as of December 19, 2015) posted what the United States Fair Labor Standards Act does not require. It is important to know what the “DOL” says because their opinions are usually followed by the nation’s judges, especially in federal court. According to the DOL the following things are typically worked out between the employer and the employee (or if there is a union or agent, their representative):
(1) Vacation, holiday, severance, or sick pay. In other words, if your employer says that you must work on Thanksgiving, you may be out of luck. However, other laws still apply (like the 1964 Civil Rights Act), so if your boss demands you work on Sunday, but your religious beliefs demand otherwise, an accommodation may be in order.
For example, one federal court stuck it to an employer, and ruled that: (1) the employee’s participation in Saturday bible class activities constituted a “religious obligation,” and (2) the employer made no effort to accommodate the employee’s religious needs (which the employee had told the employer about) and the employer failed to demonstrate that it would suffer any undue hardship in accommodating the employee. Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978)
(2) meal or rest periods, holidays off, or vacations;
(3) premium pay for weekend or holiday work;
(4) pay raises or fringe benefits;
(5) a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees;
(6) pay stubs or “W-2s”.
The DOL says that the FLSA does not limit the number of hours in a day, or days in a week, an employee may be required or scheduled to work, including overtime hours – so, theoretically, if you work 39 straight hours in a week, then don’t work any more that week, you would be entitled to overtime. Such is different in states like California. Of course, if the employer works a fatigued employee, the employer may end up getting sued for the consequences of that.
In Utah, “unfair termination” is not necessarily illegal. In other words, if you are fired simply because you’re a New York Jets fan, but your boss is a New England Patriots fan, you may be out of luck. After all, Utah is an “at-will” state, which means since you can end the employment relationship whenever you feel like, the employer should be able to do that same – unless his reason for doing so violates a law (firing for race, religion, national origin, etc.)
In other words, your employer can fire you, even if you’re this best employee, and even though he never gave you any warnings, and even if you have done nothing wrong. But that does not mean you won’t get unemployment benefits. After all, to deny you unemployment benefits, the boss has to show you knew you were doing something wrong, you could control or fix your screw-ups, and you were guilty of not doing what you knew you should be doing.
However, there are exceptions to the at-will rule. For example, an employer cannot fire you (without potentially being sued, or sanctioned by the government) if doing so would be: (1) unlawful discrimination (2) a violation of an employment contract or (3) a violation of public policy. The law also gives protection to whistle-blowers in some situations.
Most people know all about unlawful discrimination – firing a person because of their “race, color, religion, sex, age (over 39), national origin, disability, sexual orientation, gender identity, pregnancy, childbirth or pregnancy-related conditions” (According to Utah’s DOL website). Also, an employer cannot fire you for asking for a reasonable accommodation (such as not having to work on a Sunday, or not having to serve alcohol), for complaining about unlawful discrimination (or for not being paid according to the mandates of the FLSA minimum wage and/or overtime laws), or for participating in an employment discrimination investigation (in other words, you can’t be fired just because you are to taking the employer’s side of things, and tell the investigator the truth).
A lot of employees get fired “against public policy.” This is far different from being fired because you are a New York Jets fan. Utah law prohibits an employer from firing you if your termination would violate “clear and substantial Utah public policy.”
Just recently, it was ruled that Walmart loss prevention employees could sue Walmart if Walmart fired them for using self defense. The case said that Utah’s at-will employees can sue under a wrongful termination claim if the employee was fired “for engaging in self-defense, but only if the employee faced an imminent threat of serious bodily harm under circumstances where he was unable to safely withdraw.” Ray v. Wal-Mart Stores, Inc., 2015 UT
According to the state of Utah, your boss cannot fire you for doing the following:
- refusing to file false tax returns
- refusing to file false customs documents
- refusing to mislead a safety inspector
- refusing to notarize a signature when the person who signed is not present
- refusing to present a consumer with misleading information
- refusing to participate in rebate program that violates federal lending laws
It would also be a violation of public policy for an employer to fire you for:
- serving on a jury
- responding to a subpoena
- serving in the military
Also, employers cannot fire a person, or retaliate against them, for filing a workers’ comp claim. The Utah judiciary said “retaliatory discharge for filing workers’ compensation violates this state’s clear and substantial public policy as pronounced by the Workers’ Compensation Act. Thus, an employee who has been terminated or constructively discharged from his or her job in retaliation for the exercise of workers’ compensation rights has a wrongful discharge cause of action against his or her employer under the public policy exception to the at-will rule. However, we do not believe the same policy is implicated when an employee suffers retaliatory harassment or discrimination, or when an employer discharges an employee who opposes the employer’s treatment of employees who are entitled to benefits.”
Touchard v. La-Z-Boy Inc., 2006 UT.
Also, the the Utah judiciary has said this: Attorney fees are “consequential damages” in wrongful termination suit by employee; employers can reasonably foresee that wrongfully terminated employees will be forced to file suit to enforce employment contracts and will incur attorney fees. Heslop v. Bank of Utah, 839 P.2d 828 (Utah 1992).
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