Utah Law Developments: Anti-Discrimination Claims
There have been a few recent developments in Utah related to Labor Law and Employment Law. Most of these topics have been covered in recent blog posts such as the audit of the Utah Labor Anti-Discrimination Commission, and non-competition agreements. Other developments are paid family leave as well as maternity leave and discrimination against women who take time off for maternity, sexual orientation and transgender rights and new developments under Workers Compensation.
In the Anti-Discrimination division, there was an audit that showed that the amount of findings of discrimination, .7% were significantly lower than the federal division and other state divisions. They also found that many of the investigation reports and their conclusions did not match the facts or the legal standard that was to be analyzed.
The report also noted the low amount of staff that was able to conduct the investigations and the amount of time it took to resolve the investigations, which almost always went past the 180 days that the investigation is to take. As a result, as an attorney here in Utah, I usually recommend to my clients to at least file a complaint with the federal office in Arizona instead.
The issue there, is they also take 180 over 180 days to file the complaint. Also, one is supposed to do an intake there over there phone with the Federal Division and the interviews I have had with clients and the federal division, I have noticed that the Division goes after my clients and seems to find reasons not to take on the case and conduct the investigation.
Instead, they usually tell my clients that they will give them a right to sue notice. Those that they do take on, it is hard to contact the investigators and know the status of the investigation. The issue is too is that as an attorney, I can only do so much to push the investigation along.
As a result, if the case is a really good case with really good facts, I usually advise my clients that the best thing to do is to waive the investigation get a right to sue notice and so my office can sue the company directly in Federal Court. That method allows me to act as the investigator and puts the power back in my client’s hands on having more control over the case.
Also, if the investigation report comes back unfavorable, then the individuals may have to sue in federal court anyway and the entire time on the investigation is a waste of time. If I get an investigation report back from the Labor Division, I always have to advise my clients to take it with a grain of salt. It is also best to get a right to sue notice in federal court as there may be other causes of action with the case that can be filed concurrently that can be investigated with the labor division.
The report notice that in 2017 a higher number of retaliation cases have been filed and the amount of claims filed increased by 33%. This means that the process is bogged down even more than it previously was.
Also, the UALD has mediation at the start of the case. The problem with mediation at the start is that both parties really haven’t done a lot of investigation on the case to see if there is any kind of retaliatory, harassment, hostile work environment settings based on age, race, religion, gender, disability ect. As a result, mediation if it does happen usually doesn’t have favorable results because there is not much evidence to mediate off.
Also, mediation is just only a method where both parties can sit down at the table and try and settle the issues on their own without a judge to make a final determination. A lot of times, companies decide not to go to mediation. A lot of individuals wonder if they have a good case or not because they other side doesn’t want to mediate. It has nothing to do with the case or the strength of the case. A company may not want to mediate because they may not want to waste resources on it.
They also may not have enough facts in front of them to mediate. Also, given the amount of favorable decisions here in Utah, they may just wait the case out and hope it will just go away. This is the problem with the Anti-Discrimination cases, they do the investigations for the companies so it is really nothing off them if a complaint is filed.
The other problem is one must file a complaint within 180 days of the last incident occurring. The Division can only go back 180 days from the date it is filed. The problem here is that many of these cases have a storyline that stretches longer than 180 days. So if the story does so, your story is cut-off at 180 days. Also, in Utah, the Division has to draft the complaint for you. So you have to fill out paperwork and then they draft a complaint and then you have to sign and notarize the complaint.
Issues here are that if the facts in the complaint are not accurate, the division has to go back and re-word it and re-issue it. That can be a weeks lost. So instead of the complaint being considered file the time you put in your paperwork, it is considered filed by the time the complaint is notarized. There can be a huge lapse between both times. If that is the case, then precious time on what facts the division can look at can be lost.
This is also an issue because most causes of action that can be filed civilly usually have at least a one-year statute of limitations. This means that one can file a complaint within one year of the incident that took place. Only allowing 180 days on a discrimination case does not make sense.
More developments on Utah law can be found here: https://www.jdsupra.com/legalnews/utah-2018-legislative-report-employment-43844/