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Employment Law Update, June 29, 2022 – Employee Rights/ Labour Relations


Employers Respond to Supreme Court’s Decision Striking Down
Roe v. Wade

In the wake of the U.S. Supreme Court’s decision overturning
Roe v. Wade, several large national employers, including
Disney and Facebook, stated that they will cover expenses incurred
by an employee who must travel out of state for an abortion. Read
more about this development here. Perhaps anticipating that some states
may try to limit out-of-state travel for an abortion, Justice
Kavanaugh posed and answered this question in his concurring opinion: “May a state bar a
resident of that state from traveling to another state to obtain an
abortion? In my view, the answer is no based on the constitutional
right to interstate travel.” Thus, efforts by state
legislators to limit abortion-related travel are likely to face
steep challenges.

What is less clear is how an employment policy to reimburse
abortion-related travel would be impacted by legislation that
criminalizes abortions, including aiding and abetting abortions.
However, Utah’s trigger law limiting abortion access does not
seem to contemplate criminal penalties against a woman seeking an
abortion or those who may aid her (instead, criminal penalties seem
to be reserved for those performing abortions, e.g., doctors and
clinics).

The trigger statute, which limits legal abortions to situations
of rape, incest, fetal defects or where the life of the mother is
at stake, took effect on Friday, June 24, 2022. However, on Monday,
June 28, 2022, a state court judge issued a temporary injunction
delaying implementation of the trigger law for at least 14 days.
Opponents of Utah’s abortion law are seeking to continue that
stay indefinitely pending final review by the courts. Ultimately,
the Utah Supreme Court may decide the fate of Utah’s abortion
law. Read more about that developing story here. For now, this temporary stay provides
Utah employers a little breathing room as they consider whether to
adopt policies that address abortion access. Stay tuned to these
updates for additional developments.

Supreme Court Rules Against Public Employer in First
Amendment/Religious Speech Case.

On June 27, 2022, the U.S. Supreme Court ruled in favor of a
Washington state public employee who had lost his job for engaging
in prayer while on-duty. In Kennedy v. Bremerton School District,
high school football coach Joseph Kennedy was suspended, and later
not rehired, after he knelt in personal prayer at midfield after
several games. Kennedy filed suit in federal court alleging that
his public employer Bremerton School District violated the First
Amendment’s Free Speech and Free Exercise Clauses. The district
court granted judgment in favor of the employer, finding that the
sole reason Kennedy’s employment ended was the employer’s
perceived “risk of constitutional liability” under the
Establishment Clause—i.e., constitutional requirements
requiring separation of church and state. The Ninth Circuit Court
of Appeals affirmed that decision. The Supreme Court reversed,
finding in favor of the employee. Writing for the 6-3 majority,
Justice Gorsuch explained that “[n]o historically sound
understanding of the Establishment Clause begins to make it
necessary for government to be hostile to religion in this
way.” The court also observed that the coach did “not
involve leading prayers with the team” and instead had
“knelt at midfield after games to offer a quiet personal
prayer.”

Public employers should take note of this decision and review
their policies and practices limiting employees’ personal
religious observance during working time. Private employers in Utah
should take note of it, too. Although Utah employees in the private
sector have no free speech or other Constitutional rights, they do
have
religious liberty protections
arising under Utah’s
Antidiscrimination Act. Those rights, which were added to the
Antidiscrimination Act in 2015, provide that employees may express
their “religious or moral beliefs and commitments in the
workplace in a reasonable, non-disruptive, and non-harassing way on
equal terms with similar types of expression of beliefs or
commitments allowed by the employer in the workplace, unless the
expression is in direct conflict with the essential
business-related interests of the employer.” It is possible
that a Utah court could draw upon the Kennedy v. Bremeteron
School District
decision when applying these statutory
religious expression rights.

Did the Utah Legislature Repeal the Private Employer
Verification Act?

Some HR professionals have noticed strange language appearing in
the Private Employer Verification Act stating that
the act is “contingently repealed.” What does that
language mean?

The answer is not found in the statutory language of the Private
Employer Verification Act. Rather, a legislative breadcrumb trail
beginning with Utah Code Section 63I-2-213 reveals that the
Private Employer Verification Act is repealed contingent upon
implementation of Utah’s
Guest Worker Program
. But the Guest Worker Program will not be
implemented until (1) 120 days after the state receives federal
permission for the program or (2) July 1, 2027. Because neither of
those conditions have been satisfied, the Private Employer
Verification Act remains in full effect.

The Private Employer Verification Act has resurfaced in HR
professionals’ focus since being amended in May, 2022 to require E-Verification
from employers with 150 or more, previously 15 or more,
employees.

O’Brien and Tolman to Present on Privacy and
Confidentiality in the Workplace on July 12

Michael O’Brien and Mark Tolman, two of the authors of these
updates, will present at Salt Lake SHRM’s July 12, chapter
meeting on Privacy and Confidentiality in the Workplace. The
program will help employers understand the ever-changing and
emerging issues about privacy and confidentiality obligations in
the workplace, including employee health information, personal
identifying information, and workplace monitoring and surveillance.
For additional information, or to register, click
here
.

Articles contributed by Parsons’ Employment & Labor
Shareholders Mark D. Tolman, Michael Patrick O’Brien and Summer
Associate Corey Hunter.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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