I want to try and put this as delicately as I can. The Utah Labor Division in the past has had some issues. There was an audit placed on them which came out with very unfavorable results on how the division was conducting workplace discrimination claims.
This had to do with the amount of individuals that did the investigation, the investigation results, the results based on the facts applied to the law and the awards that individuals received. This also has to do with the amount of time the division takes to investigate the case. The problem is that this has incentivized companies to continue to discriminate against their employees with no repercussions.
I went to a CLE a few months ago where the head of the division discussed to a group of attorney on what they were doing to “better” the situation. This is a red flag for me as a practicing attorney. If the division is telling me what progress they are making to get out of where they were, I don’t have a lot of confidence in the division.
With the results I have received from the division, I have also lost confidence. I don’t think the investigators are trained enough, have an understanding of the law and facts to conduct a proper investigation. I think individuals with a background in law need to conduct these investigations.
I also don’t have a lot of confidence with their mediations. I think it is the same with the mediators. Not a lot of background in the law. I had a mediation where I was told that the judge usually just goes along with what the investigation report says.
So if the investigation report is flawed and the judge just goes along with it there are some real issues. I am concerned that I was told that. Each case is a case-by-case basis and just claiming that the judge always goes with the investigation report is very concerning. I was also told at mediation that the judges don’t award punitive damages and pain and suffering damages.
This is a huge concern as well. If that was a case, and a person suffered from severe workplace harassment, including sexual harassment, but the harassment did not lead to a change in pay-rate or economic loss, then that individual would not be allowed to collect damages.
There is nothing in the statute under Utah Law that does not bar an award for punitive and pain and suffering damages. The statute notes what types of damages may be awarded but not all damages. The fact that the division is claiming that an individual cannot recover for workplace harassment is also troubling and again makes no incentive for employers to stop such harassment as there is no penalty for such actions.
Under the federal statute, there is a section where an award for pain and suffering is allowed as well as punitive damages. Both damages should be determined by a case-by-case basis on whether or not damages should be awarded. The fact that there is an internal policy not to award punitive damages and bar pain and suffering damages is troubling.
At this point, I recommend individuals if they have a discrimination claim, to file the claim with the federal division and not the state division because the state division is a dead-end. If the federal law allows such damages, then the Utah Division would have to award such damages as well. Since apparently the Division does not, either by internal policy or elsewise, then the state law would violate the federal constitution and civil right laws. The federal constitution is the floor. As a result, no state laws can go lower than the federal constitution.
If the federal constitution and federal laws are allowing pain and suffering damages for discrimination claims and punitive damages, then Utah law would violate the constitution as their laws restrict more remedies than what its federal counterpart does. Utah law can only add additional rights and remedies. They cannot restrict the remedies. Also, the restriction of such damages violates its own laws, as there is nothing expressly noted by the legislature that bars pain and suffering and punitive damages. Any laws that make a limit to that without authorization by the legislature would also violate the Utah Constitution as the Utah legislature has not made such restrictions.
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