1. What legal protection does Utah provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Utah recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner or for a reason that violates a clear and substantial public policy. An employee has a cause of action in other words, the employee may sue for wrongful termination when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Utah courts will look to statutes and constitutional provisions to determine if a certain practice has been endorsed or prohibited (e.g. criminal statutes). So, for example, because it is illegal to falsify tax documents, an employer who coerces an employee to falsify tax documents by threats of reprisal would be violating Utah's public policy.
In addition, the Utah State Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, employment of minors, occupational safety and health, and payment of wages.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged in a manner or for a reason that violates a clear and substantial public policy. Utah courts have recognized three categories of employee activities that fall within the public policy exception and are thus protected:
- Refusing to commit an illegal or wrongful act
- Performing a public obligation
- Exercising a legal right or privilege
Employees who report illegal activity (i.e. whistleblowers) may be protected under the public policy exception, but only if the employee reports the illegal activity to public officials, not supervisors within the company. At least one Utah court has rejected a wrongful termination claim where an employee only reported criminal violations internally to supervisors.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing charges, testifying, assisting, or participating in a proceeding, investigation, or hearing under the Utah Antidiscrimination Act. The Utah Antidiscrimination Act prohibits workplace discrimination on the basis of race; color; sex; pregnancy, childbirth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion; national origin; and disability. Utah Code Ann. §§ 34A-5-102(17), 34A-5-106(1)(a).
Employment of Minors: An employee may not be discharged (or discriminated against) in retaliation for testifying in proceedings under Utah laws concerning employment of minors. An employer who violates this provision is guilty of a misdemeanor. Utah Code Ann. § 34-23-402(2)(g).
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under the Utah Occupational Safety and Health Act (UOSHA). UOSHA is intended to implement, establish, and enforce occupational safety and health standards. Utah Code Ann. § 34A-6-203(1).
Payment of Wages: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint or testifying in a proceeding under Utah laws concerning the payment of wages. Employees are also protected if they are going to file a complaint or testify in a proceeding, or if the employer believes the employee may file a complaint or testify in a proceeding. Utah Code Ann. § 34-28-19(1).
3. How do I file a whistleblower or retaliation claim in Utah?
Generally: An employee may file a wrongful termination lawsuit in an appropriate court. For common law public policy lawsuits, the suit must be filed within 4 years of the retaliatory action. For lawsuits based on a statutory provision, the suit must be filed within 3 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the Utah Antidiscrimination & Labor Division (UALD), a branch of the Utah Labor Commission. The complaint must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact UALD immediately at:
Utah Antidiscrimination & Labor Division
160 East 300 South, 3rd Floor
Salt Lake City, UT 84111
Occupational Safety and Health: An employee may file a complaint with the Utah Division of Occupational Safety and Health (UOSH), a branch of the Utah Labor Commission. The complaint must be filed within 30 days of the retaliatory action. UOSH will investigate and may order appropriate relief on your behalf. If you believe you have a claim, you should contact UOSH immediately. UOSH has provided a complaint form, contact information, and other important information on their web site. Utah Code Ann. § 34A-6-203(2).
Payment of Wages: An employee may file a complaint with the Utah Antidiscrimination & Labor Division (UALD), a branch of the Utah Labor Commission. If you believe you have a claim, you should contact UALD immediately.