- Employment in Utah is “at-will.” That means that unless there is a written contract which specifies a specific period of time which the employee will be employed or that the employee will be discharged only for good cause an employer may terminate an employee at any time for any reason or for no reason other than an illegal reason. An illegal reason is one which violates a statute or a clear and substantial public policy. The statutes which restrict the ability to terminate are those establishing protected classes like age, race, religion, sex, national origin, disability or military status.
- An unfair termination is not necessarily an illegal termination. When reducing staff an employer does not have to rely on seniority unless there is a contract, usually a union contract, which requires it to do so. The fact that the employer has a progressive discipline policy or a handbook describing specific reasons for termination does not mean that the employer will be limited to terminating employees only for those cause. Poor management policies are not generally illegal
Friday, January 1, 2010
Preparation for an Employment Law Suit
KEEP A JOURNAL: If you have, or believe you have, a claim for wrongful termination, discrimination, or harassment you need to document what has happened to you. You should do this in a log or journal separate from any journal or diary you may already keep. This record should contain dates, times, places and include details of what was said or done. It should be complete and contain quotes of exactly what was said. Do not show it to anyone else. If you keep a proper journal it may be privileged from disclosure in litigation as "work product." Do not take documents from your employer's place of business if doing so would violate a company policy. Make note of what any important employer documents say, specifically, and make note of where they are located.
FILE FOR UNEMPLOYMENT: If you have been terminated it is important that you file for unemployment. The fact that you were fired does not necessarily disqualify you from collecting unemployment. Keep all of the documents associated with your unemployment application. It is often the case that an employer will tell an employee that the reason for termination is one thing and tell the unemployment office something completely different. An employer's response to your unemployment application should be provided to you by the unemployment office. Keep a copy of that response and all other papers you are sent in the process of the application or appeal. Be certain to do everything the unemployment office asks you to do to maintain your unemployment claim and benefits. A link to the Utah Department of Employment Security if found on this website.
LOOK FOR WORK: If you have been fired you must look for work. You need to make at least two applications a week to qualify for unemployment. The law requires you to mitigate or lessen your damages and the best way to do that is to find another job. You do not need to take just any job but must be actively seeking a job comparable in pay to the one you lost. Keep complete, accurate records of your job search. Keep a written record of every job for which you apply in any fashion whatsoever. That means keep track of every application you complete, every resume you mail, and every e-mail you send. For each job you have applied for keep a record of what the job was, who the employer was, who the contact was with the employer, and what the compensation is or would have been. Keep all of these documents in a single place so you can have easy access to them if you need them. We recommend that you make at least one contact of some variety seeking employment each business day.
FILE FOR UNEMPLOYMENT: If you have been terminated it is important that you file for unemployment. The fact that you were fired does not necessarily disqualify you from collecting unemployment. Keep all of the documents associated with your unemployment application. It is often the case that an employer will tell an employee that the reason for termination is one thing and tell the unemployment office something completely different. An employer's response to your unemployment application should be provided to you by the unemployment office. Keep a copy of that response and all other papers you are sent in the process of the application or appeal. Be certain to do everything the unemployment office asks you to do to maintain your unemployment claim and benefits. A link to the Utah Department of Employment Security if found on this website.
LOOK FOR WORK: If you have been fired you must look for work. You need to make at least two applications a week to qualify for unemployment. The law requires you to mitigate or lessen your damages and the best way to do that is to find another job. You do not need to take just any job but must be actively seeking a job comparable in pay to the one you lost. Keep complete, accurate records of your job search. Keep a written record of every job for which you apply in any fashion whatsoever. That means keep track of every application you complete, every resume you mail, and every e-mail you send. For each job you have applied for keep a record of what the job was, who the employer was, who the contact was with the employer, and what the compensation is or would have been. Keep all of these documents in a single place so you can have easy access to them if you need them. We recommend that you make at least one contact of some variety seeking employment each business day.
Collecting Unpaid Wages
-> On occasion employers decide not to pay all wages due at the time an employee leaves either voluntarily or involuntarily. Unpaid wages may be collected either through the Labor Division of the Utah Labor Commission, through small claims court, or through an attorney.
-> The Labor Division will collect wage claims up to Ten Thousand Dollars ($10,000.00). Advantages of using the Labor Division are that they do not charge for their services, and that they understand the law and the process completely. A disadvantage is that they have a heavy case load so the process may take more time than the unpaid employee wishes to wait. http://laborcommission.utah.gov/AntidiscriminationandLabor/wageclaimunit.html
-> Utah small claims courts have a jurisdictional limit of Ten Thousand Five Hundred Dollars($10,000.00). An advantage of using the small claims court is that a hearing can be held within a month or less of filing the claim. Disadvantages include the fact that there is a filing fee the employee must pay though the court should award a winning employee that filing fee and the fee for service of process on the employer as part of the judgment. Also, the typical small claims judge for an initial hearing is not a full time judge but a judge, pro tem, an attorney who volunteers to serve one evening a week. It is possible that the small claims judge will not be familiar with the applicable sections of the labor code and may, on a rare occasion, rule against an employee who has a valid claim. Any party who loses in a small claims action is entitled to an appeal to a full time district court judge. Just because an employee has a judgment against an employer does not mean that the employer will automatically pay the judgment. If the employee obtains a judgment it may be necessary to resort to a garnishment or a sheriff's sale to collect the judgment. The court clerk will assist with this process. To file a small claims action go to any district court listed in the state government section of the blue pages of the telephone book. The clerk will help get the claim filed.
-> The final option for collecting unpaid wages is to retain an attorney. We collect wage claims but we also suggest employees consider either the Labor Division or small claims court first if the claim is within the jurisdictional amount allowed because it is typically more cost effective. Most experienced employment lawyers will not take wage claims below Ten Thousand Dollars ($10,000.00) because they are not cost effective given the time involved. An attorney's hourly fee to collect a small wage claim will often be several thousand dollars. Typically experienced attorneys will not take small wage claims on a contingent (percentage) fee basis. The Utah Code allows the court to award attorney fees in actions for collection of wages. We are willing to collect larger wage claims on either a contingent fee or an hourly fee basis. If you have such a claim please call for an appointment. (801-255-4774)
-> If you have been terminated and have a wage claim over $10,000.00 and want to have an attorney help collect the debt act immediately. The Utah code allows wage claimants to collect attorneys fees' and liquidated damages equal to the amount of wages for up to 60 days if the claim is brought within 60 days and written demand is made at least 15 days before the claim is filed in court. That means that the attorney will typically want to meet with you not later than 30 days after you were fired so the claim can be processed and all the proper demands made.
-> The Labor Division will collect wage claims up to Ten Thousand Dollars ($10,000.00). Advantages of using the Labor Division are that they do not charge for their services, and that they understand the law and the process completely. A disadvantage is that they have a heavy case load so the process may take more time than the unpaid employee wishes to wait. http://laborcommission.utah.gov/AntidiscriminationandLabor/wageclaimunit.html
-> Utah small claims courts have a jurisdictional limit of Ten Thousand Five Hundred Dollars($10,000.00). An advantage of using the small claims court is that a hearing can be held within a month or less of filing the claim. Disadvantages include the fact that there is a filing fee the employee must pay though the court should award a winning employee that filing fee and the fee for service of process on the employer as part of the judgment. Also, the typical small claims judge for an initial hearing is not a full time judge but a judge, pro tem, an attorney who volunteers to serve one evening a week. It is possible that the small claims judge will not be familiar with the applicable sections of the labor code and may, on a rare occasion, rule against an employee who has a valid claim. Any party who loses in a small claims action is entitled to an appeal to a full time district court judge. Just because an employee has a judgment against an employer does not mean that the employer will automatically pay the judgment. If the employee obtains a judgment it may be necessary to resort to a garnishment or a sheriff's sale to collect the judgment. The court clerk will assist with this process. To file a small claims action go to any district court listed in the state government section of the blue pages of the telephone book. The clerk will help get the claim filed.
-> The final option for collecting unpaid wages is to retain an attorney. We collect wage claims but we also suggest employees consider either the Labor Division or small claims court first if the claim is within the jurisdictional amount allowed because it is typically more cost effective. Most experienced employment lawyers will not take wage claims below Ten Thousand Dollars ($10,000.00) because they are not cost effective given the time involved. An attorney's hourly fee to collect a small wage claim will often be several thousand dollars. Typically experienced attorneys will not take small wage claims on a contingent (percentage) fee basis. The Utah Code allows the court to award attorney fees in actions for collection of wages. We are willing to collect larger wage claims on either a contingent fee or an hourly fee basis. If you have such a claim please call for an appointment. (801-255-4774)
-> If you have been terminated and have a wage claim over $10,000.00 and want to have an attorney help collect the debt act immediately. The Utah code allows wage claimants to collect attorneys fees' and liquidated damages equal to the amount of wages for up to 60 days if the claim is brought within 60 days and written demand is made at least 15 days before the claim is filed in court. That means that the attorney will typically want to meet with you not later than 30 days after you were fired so the claim can be processed and all the proper demands made.
Preparing a Narrative History
Before we, or any attorney, can represent you effectively we need to have a detailed history of everything which gives rise to your claim. The best way to do this is to prepare a narrative history of what happened. This history will have at least three parts. The first part is the history from the beginning. This
means you need to sit down with your word processor and describe everything that happened that relates to your claim. Start from the first time anyone said or did anything which was improper. If your claim is for harassment that means the first time anyone said anything improper or touched you or stared at you. If your claim is for discrimination that means the first time you were treated differently or the first time anyone made a comment about your race, sex, age, or disability. From there continue and include each and every improper commend or action through the present time.
The second portion of your narrative will list all of the people who were involved either in doing things which were inappropriate, who witnessed what happened, or who were also harassed or discriminated against. This portion of your narrative should list each person by name, address and telephone numbers, both home and cellular numbers. With each person’s name and biographic information list what it is they know, did, or observed, in detail. Once you have make the list of people talk to those who have witnessed inappropriate actions and ask them to give you a written statement of what they observed. A form for a witness statement is attached to this information sheet.
The third portion of your narrative will list all documents which relate to your claim. This will include any employee policy manuals, any written complaints you have made of the things which you have experienced, any warnings given to you or to the person who has harassed or discriminated against you. It will also include the statements you have obtained from your witnesses. If you were fired any documents
your created or received in connection with your unemployment claim will also be important. It is critical that you keep a detailed record of your efforts to find work. That includes the name of the prospective employer, the job, the name of the person you contacted, the date of your contacts, and any documents
which show your application or rejection.
Once you have completed your history call our office, 801-255-4774, and give the basic information to our legal assistant. We will review your information and get back to you. Do not show or discuss your information to anyone else. If you keep it confidential and prepare it in anticipation of litigation it should be protected from disclosure to those who you may end up suing.
means you need to sit down with your word processor and describe everything that happened that relates to your claim. Start from the first time anyone said or did anything which was improper. If your claim is for harassment that means the first time anyone said anything improper or touched you or stared at you. If your claim is for discrimination that means the first time you were treated differently or the first time anyone made a comment about your race, sex, age, or disability. From there continue and include each and every improper commend or action through the present time.
The second portion of your narrative will list all of the people who were involved either in doing things which were inappropriate, who witnessed what happened, or who were also harassed or discriminated against. This portion of your narrative should list each person by name, address and telephone numbers, both home and cellular numbers. With each person’s name and biographic information list what it is they know, did, or observed, in detail. Once you have make the list of people talk to those who have witnessed inappropriate actions and ask them to give you a written statement of what they observed. A form for a witness statement is attached to this information sheet.
The third portion of your narrative will list all documents which relate to your claim. This will include any employee policy manuals, any written complaints you have made of the things which you have experienced, any warnings given to you or to the person who has harassed or discriminated against you. It will also include the statements you have obtained from your witnesses. If you were fired any documents
your created or received in connection with your unemployment claim will also be important. It is critical that you keep a detailed record of your efforts to find work. That includes the name of the prospective employer, the job, the name of the person you contacted, the date of your contacts, and any documents
which show your application or rejection.
Once you have completed your history call our office, 801-255-4774, and give the basic information to our legal assistant. We will review your information and get back to you. Do not show or discuss your information to anyone else. If you keep it confidential and prepare it in anticipation of litigation it should be protected from disclosure to those who you may end up suing.
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