What you need to know about Utah Wage and Hour Investigations
The Utah Division of Antidiscrimination 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.
Under the OSHA law, employers have a responsibility to provide a safe workplace. Here are some of your responsibilities as a small business owner in the state of Utah:
- 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.
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 in employment practice because of race, color, religion, sex or national origin. This law is administered by the Utah Labor Commission, Utah Antidiscrimination & 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.
- The Age Discrimination Act of 1967 and Utah Code § 34A-5-106(1)(a)(i), (d) prohibits discrimination on the basis of age with respect to individuals who are at least 40 but less than 65 years of age. Applies to employers with 20 or more employees and in Utah applies to employers with 15 or more employees.
- Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA of 1992 prohibits discrimination in employment practices against qualified individuals with a disability.
- Section 1981 of the Civil Rights Act of 1866 (42 U.S.C. § 1981).
- 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.).
- Uniformed Services Employment Reemployment Rights Act of 1994 (USERRA).
- Equal Pay Act of 1963 (EPA) and the UADA prohibits wage discrimination where employees have substantially equal experience, responsibilities, and skills for a particular job. (Utah Code Ann. § 34A-5-106(1)(iii)(A)).
- Utah Minimum Wage Act (UMWA), under administrative rules implementing the UMWA, covered employers must pay $7.25 per hour. (Utah Admin. Code R610-1- 3(A)).
- 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)).
- 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)).
- 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)).
- Utah law requires employers to post the following notices:
- Workers’ compensation poster (Utah Code § 34A-2-204).
- Occupational safety and health poster.
- Unemployment insurance notice (Utah Code § 35A-4-406(1)(b)).
- Utah Criminal Investigations and Technical Services Act (UCITSA) limits an employer’s ability to access criminal record information relating to an employee or applicant. (Utah Code Ann. § 53-10-101 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.).
- Employment At Will: 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. (Case law citations).
- Negligent hiring: In Utah, an employer may be liable to a third party for an injury caused by a negligently hired employee.
- 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.).
- Job Application Requirements: 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), 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.).
- Non-Solicitation Agreements: 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.
- Confidentiality Agreements: 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.
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