Private Sector Employment Law
Attorneys at Tanner Law Office PLLC regularly advise and represent employees who work for private companies (known as the private sector). If you seek to challenge an adverse action by a private company in Utah, one of the first issues to determine is your employment relationship. In Utah, the law presumes that all employment relationships entered into for an indefinite period of time are at will. In this type of employment relationship, the employer or the employee may terminate the employment for any reason (or no reason) unless the termination of the employment relationship is prohibited by law (Rackley v. Fairview Care Ctrs. Inc., 2001 UT 32; Hansen v. America Online Inc., 2004 UT 62). Under this employment relationship, the employer may even discharge you for a mistaken or wrong reason if the employer has a good faith belief that the wrong reason is correct (Exum v. U.S. Olympic Committee, 389 F.3d 1130,10th Cir. 2004). The 10th Circuit Court of Appeals has noted that the “relevant inquiry is not whether [the defendant’s] proffered reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.”
Choose a topic for more information:
Wrongful Discharge Actions
If you have an employment at will relationship with your employer, the next issue for us is whether facts exist that Utah law will treat your employment relationship as outside of the employment at will relationship (and as a result, giving you greater rights than you would have if the relationship is one of employment at will). These exceptions, based on the facts of your case, include facts which support: (1) there is an implied or express agreement that the employment may be terminated only for cause or upon satisfaction of some agreed-upon condition; (2) a statute or regulation restricts the right of an employer to terminate an employee under certain conditions; or (3) the termination of employment constitutes a violation of a clear and substantial public policy. (Fox v. MCI Communications Corp., 931 P.2d 857, Utah 1997).
The following factual situations have been held by the Utah Supreme Court to provide clear and substantial policy sufficient to provide an exception to the employment at will relationship:
(i) Refusing to commit an illegal or wrongful act, such as refusing to violate antitrust laws
(ii) Performing a public obligation, such as accepting jury duty
(iii) Exercising a legal right or privilege, such as filing a workers’ compensation claim
(iv) Reporting to a public authority criminal activity of the employer (Ryan v. Dan’s Food Stores Inc., 972 P.2d 395, Utah 1998).
Although wrongful discharge claims can be brought as separate claims in Utah State District Court, these claims are often added as supplemental state claims in the event that you have a federal discrimination case filed in U.S. District Court.
Attorneys at Tanner Law Office are prepared to review the facts related to your case to determine if sufficient evidence exists to establish a wrongful discharge claim in response to the employer’s adverse action against you.
Our firm is experienced in representing individuals in discrimination cases involving gender, (disparate treatment, sexual harassment and gender stereotyping), race and national origin, religion, age, and disability. In the disability area, we are experienced in the Americans with Disabilities Act (ADA) and we are available to advise and represent employees with requests to employers for reasonable accommodation to help those employees carry out the key or essential duties in a job, and we assist in helping ensure that employers engage in a good faith dialogue and interaction on how to accommodate job performance for disabled employees.
An attorney reviewing your case with you will apply the following discrimination concepts and elements of proof to the facts presented in your case. Of course, the “truth” or facts that you know will be presented to a court or jury only if the information can be presented through one of the recognized rules of evidence. Our law firm will conduct that analysis as your case is prepared for hearing or trial.
Employees Who May File Discrimination Complaints
If you work for a private company, its size (number of employees who work for your employer) is a significant factor regarding whether you will have the protection of a federal or slate antidiscrimination statute. Title VII of the Civil Rights Act of 1964 (covering race, color, religion, sex or national origin) and the Americans with Disabilities Act (ADA) apply to employers with 15 or more employees. The Age Discrimination in Employment Act (ADEA) applies to employers with 20 or more employees. Under the Utah Antidiscrimination statute (34A-5-106), a gap of coverage exists in protection for employees of small employers who are not covered by either the state antidiscrimination act or the federal antidiscrimination acts.
Attorneys at Tanner Law Office are available to review whether your employer is subject to state or federal antidiscrimination acts and whether the facts support other causes of action such as 1981 (race or national origin) claims, possible employment torts or breach of contract actions that might be available if you have no protection from discriminatory acts of your employer (due to the size of your employer). For a confidential consultation about your employment law and other legal issues, call 435-243-7350 or fill out our contact form.
If direct evidence is available, that method of proof can be used to present your case. Direct evidence supports the truth of a fact that is being asserted, without the need for an inference. As an example, a witness states what he or she directly experienced (State v. Famber, 358 Mo 288, 214 SW2d 40). If you have witness or documentary proof that a direct decision maker in the employer’s adverse action against you made a statement that tends to prove your discrimination claim, that testimony may qualify as direct evidence.
More frequently, however, you and your attorney will rely on an indirect method of proof, or circumstantial evidence. The use of circumstantial evidence as a method of proof consists of showing a fact or set of facts that, if proven, will support the creation of an inference that the matter asserted is true. In McDonnell Douglas (McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 1824 (1973), the U.S. Supreme Court established general rules or criteria (known as a prima facie case or elements of proof) that are considered in using the indirect (circumstantial) method of proving discrimination cases. This analysis is applied in a flexible manner and it is generally applied to discrimination cases.
A general statement of the first stage of this analysis is: The plaintiff must demonstrate that he or she had 1) membership in a protected class, (2) the employer took an adverse employment action and (3) disparate treatment is established in the employer’s action among similarly situated employees. (Trujillo v. Univ. of Colorado Health, 157 F.3d 1211, 1215, 10th Cir. 1998). A showing of disparate treatment, in the last element, satisfies a showing of some evidence of discriminatory intent by your employer. (John v. Ashcroft, 377 F.3d 879, 882, 8th Cir. 2004).
Legitimate Management Reason And Pretext
If you can provide evidence to support each element of Stage 1 of the McDonnell Douglas prima facie case, the legal analysis requires that the employer advance some reason that is not discriminatory. This is known as the legitimate management reason. The employer merely needs to produce some reason that is not discriminatory. If the employer is able to advance such a reason for the adverse action against you, you may still prevail if you can establish that the employer’s reason was as pretext and that the real reason the action was taken was for a discriminatory reason.
Pretext may be shown by a combination of factors, including a close temporal proximity between the protected activity and the adverse act, a failure of company officials to follow company rules or policies, disturbing procedural violation of the employer’s own policies, lack of company documents, and multiple changing reasons. The 10th Circuit (the federal circuit court reviewing federal cases from Utah and surrounding Western states) has held that a plaintiff, to show pretext, must “call into question the honesty or good faith” of the employer and it is not enough that the court could disagree with the employer’s decision. The court has held that “the relevant inquiry is not whether [the defendant’s] proffered reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs” (Exum v. U.S. Olympic Committee, 389 F.3d 1130, 1137-38, 10th Cir. 2004).
In retaliation cases based on discrimination, you will be expected to establish facts through witnesses and documents that you 1) engaged in opposing discrimination or filing an EEO complaint (protected activity) and that your employer was aware of your protected activity, (2) that the employer took an adverse act against you ( an act that a reasonable employee would have found to be materially adverse) and (3) that a relationship exists between your protected activity and an adverse action (Argo v. Blue Cross & Blue Shield of Kan. Inc., 2006 WL 1806605, 10th Cir. 2006); Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). The employer’s act or acts can relate to matters outside of the work day or work relationship. If you are a disabled employee and you request a work accommodation from your employer, this request may be considered to be protected activity for purposes of a retaliation claim.
Harassment And Hostile Work Environment
The fact that an employee generally feels that he or she has been harassed is a fairly common complaint when reviewing facts to support a claim or defense to an employer’s adverse action. However, the terms hostile work environment and harassment require a specific level of evidence to support a viable claim in discrimination cases.
The U.S. Supreme Court has listed factors to be weighed to establish actionable harassment and a hostile work environment. These factors include:
- The frequency and severity of the discriminatory conduct
- Whether it is physically threatening or humiliating, or a mere offensive utterance
- Whether the conduct unreasonably interferes with an employee’s work performance
The conduct complained of must be “sufficiently pervasive or sufficiently severe” and the conduct must be “both objectively and subjectively abusive.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 22 (1993). The courts, in assessing whether a work environment is hostile, consider all of! the circumstances (the totality of the circumstances), not factors in isolation. Turnbull v. Topeka State Hosp., , 255 F.3d 1238 (10th Cir. 2001).
UALD Investigative Stage
In cases involving public sector and private company employees in the Utah Labor Commission, you may be given the opportunity for mediation of your claim with your employer. If you or the employer elects to not engage in mediation or mediation is unsuccessful, the investigator will be expected to collect documents and interview witnesses prior to giving a recommended finding to the Utah Antidiscrimination & Labor Division (UALD) director. You should be afforded a copy of the employer’s rebuttal and given an opportunity to reply prior to the completion of the investigation. Attorneys in our firm will work with you in establishing timelines (case chronologies), identification of key documents and identification of key witnesses to enable you to make an effective reply to the employer’s rebuttal.
Adjudication Division, Utah Labor Commission
If the UALD issues a no cause finding, you and your attorney may decide to present your case in the Adjudication Division of the Utah Labor Commission. As an alternative, you may decision to request a Substantial Weight Review by the Equal Employment Opportunity Commission (EEOC).
Our attorneys are available to meet with you and analyze the available evidence, the findings of the UALD investigation and other factors, including your resources to pursue a contested administrative proceeding. If you appeal to the Adjudication Division, you will be allowed to conduct standard written discovery (including interrogatories, requests for production of documents and requests for admission) and you and your attorney may decide to take depositions of the employer’s witnesses.
The employer may file a Motion for Summary Judgment or other motion (known as dispositive motions) to help ensure that you will not have the opportunity for a hearing. A great amount of effort is routinely needed to successfully resist Motions For Summary Judgment or other dispositive motions. If dispositive motions are not filed by the opposing party or if you prevail on one or more issues, you and your attorney will prepare for the administrative hearing by evaluating the witness testimony of depositions and the information contained in documents produced in the discovery process, as well as answers to questions you posed in your written discovery to the employer. You and your attorney will be required to file prehearing lists of witnesses and documents, prior to the hearing date. In the final acts of case preparation, you and your counsel will ensure that all direct and cross-examination questions and other motions and arguments are prepared for the hearing.
U.S. District Court
You will be able to seek a right to sue letter during the UALD investigative process or during the adjudication processing of your case. When you receive a right to sue letter, you are
required to file the complaint detailing your claims and defenses within 90 days of receiving the letter in the appropriate U.S. District Court. You will be expected to pay a several hundred dollar filing fee at the time you file your complaint. If you elect to file a lawsuit (referred to as litigation), you can anticipate months and possibly a year or so prior to a trial in your case, assuming that you are able to successfully survive summary judgment and other motions brought by the defendant employer to remove your case from federal court. Attorneys at Tanner Law Office are prepared to evaluate your case with you prior to a decision on whether to file a federal lawsuit on your administrative claim and, based on the facts and your resources to support a federal case, to represent you in a case in federal district court.