At the stroke of midnight last night, Utah’s 2016 Legislative Session came to a close.  Several new laws were passed that will impact Utah employers.  Here are a few highlights:

Non-Competes.  Many of you have been following House Bill 251 that took aim at covenants not to compete.  After much disputing and negotiating, the final version of the bill (entitled the Post-Employment Restrictions Act) makes void any post-employment restrictive covenants of more than one year in duration (expressly excluding nonsolicitation, nondisclosure and confidentiality agreements) entered into on or after May 10, 2016.  Employers should beware that any non-complying noncompete provision will be void and unenforceable – not just limited to a one year enforcement period.  Employees may also recover fees and costs if litigating against a void covenant.  Employers should carefully review employment agreements and other instruments, as well as policies and procedures to ensure compliance.  We recommend review of these forms by counsel.  The Act has exceptions for “reasonable” severance agreements, and non-compete agreements stemming from the sale of a business under some circumstances.   (By Greg Saylin)

Computer Technicians.  Utah passed a law requiring the Reporting of Child Pornography, including criminal penalties for those who violate it.  A computer technician who comes across what is or appears to be child pornography on a computer or other electronic device in the course of employment must report that image or be guilty of a class B misdemeanor. The report must be made to either: (1) a state or local law enforcement agency, or the Cyber Tip Line at the National Center for Missing and Exploited Children, or (2) an employee designated by the employer to receive and forward any such reports to one of the aforementioned agencies. The technician will not be held liable for failing to report the image based on a reasonable belief that the image was of a person 18 years or older.  Moreover, a technician or designated employee acting in good faith in either making or not making a report is immune from criminal or civil liability related to reporting or not reporting the image.  Employers should train their computer technicians on the reporting requirements and consider designating a manager to receive reports from employees.   (By David Kelley)

Accommodations for Pregnant or Breastfeeding Employees.  Senate Bill 59 amends the Utah Antidiscrimination Act to require that all covered employers (including any person with fifteen or more employees) provide a requesting employee with a reasonable accommodation related to pregnancy, childbirth, breastfeeding, or related conditions.  The employer may not terminate or deny employment opportunities on the basis of the above listed conditions.  There is an exception to the requirement to provide a requested accommodation when it would be an undue hardship, defined as creating “significant difficulty or expense when considered in relation to factors such as the size of the entity, the entity’s financial resources, and the nature and structure of the entity’s operation.”   Employers should train supervisors and managers on the new requirements to ensure compliance.  (By Kirsten Allen)

If you have questions or need assistance, please contact your Fabian VanCott attorney or any member of the Employment & Labor Group.

Employment & Labor Practice Group

 

 

For those of you following the progress of House Bill 251, Fabian VanCott shareholder Greg Saylin attended the public forum this morning hosted by the Chamber’s working group and Speaker Hughes, Sen. Adams and Rep. Schultz at the State Capitol. While further amended (HB0251S03_021), the bill continues to progress and is scheduled for committee hearing this afternoon at 4:00 pm in Senate Building 215. This morning, significant and influential members of the business community voiced strong and passionate stands both for and against the bill. Some felt strongly that noncompetes should be abolished in their entirety and that the current version of the bill does not go far enough, and a few of Utah’s biggest employers announced at the forum that they will no longer enforce their noncompete agreements regardless of the outcome of the legislation. Other business leaders expressed that the bill is dangerous to the economy and to Utah’s status as one of the most business friendly states, and that in its present form, the bill would be injurious to their businesses and their ability to protect their hard-fought goodwill and the significant investments made in their employees. Others recognized that there are concerns that need to be addressed, particularly the misuse of noncompetes by “bad actors,” but that the bill should be postponed so that it can be more fully vetted and honed prior to the next legislative session. What is clear is that there is no consensus in the business community as to House Bill 251.

If you have an opinion about the legislation and have not conveyed it to your state senator or representative, we urge you to consider contacting them or attending this afternoon’s hearing. If you need your representatives’ contact information, please click here. With the Senate hearing today and the legislative session quickly coming to a close, the fate of the bill will be decided shortly.

As always, if you have questions or concerns, please do not hesitate to contact your Fabian VanCott attorney. Once the outcome is determined, we will advise clients about strategy, modifying employment agreements and policies, and addressing concerns about protecting their business interests.

Employment & Labor Practice Group