Termination Terms By Mark Stubbs

A confusing area of the law for employers can be that of terminating employees. 

Levels of Law.  The employer-employee relationship regarding termination is governed by several levels of law.  Let’s sort those out to help simplify things.  We will examine some common terms and concepts that are used and try to clarify some common and sometimes universal misunderstandings. 

At Will Employment.  Most employment relationships are “at-will” meaning that the employee can leave at any time and the employer can ask the employee to leave at any time. Employers in the private sector are not required to give an employment contract to an employee so employment can be terminated for the employer’s own reasons.

          First Exception.  An employer who is unionized is an exception to that at-will doctrine. The termination of employees can be governed by the terms of a collective bargaining contract. A union representative is often assigned to help the employee

        Second Exception.  If there is a written contract it will likely address reasons for termination such as, violations of the law, embezzlement, committing harassment at work, and so on.   Caveat: A contract can recite that employment is still “at-will” and set out other terms.   

       Other Exceptions.   Termination of an at-will employment relationship will be scrutinized under other circumstances.  If an employer has 15 or more employees, a termination can be reviewed upon an employee complaint if it is for reasons of age, race, religion gender, handicap, and other constitutionally protected categories.  

Right-to-Work.  Probably the most commonly misused phrase and misunderstood concept in employment law is right-to-work.   Some folks say that an employer can fire an employee at any time because Utah is a right-to-work state.  The principle is sound but the reason is wrong.  Right-to-work refers to a state where the law allows a person to work in a union shop without being forced to join a union and pay union dues.  In non-right-to-work states an employee can be refused a job or fired for not being a union member; not paying union dues. 

           

Conclusion.  There are many employment law issues for a company to deal with.  Just remember that it is not impossible to comply, and many state agencies, employer organizations, and attorneys are available to help you through the maze.  Prevention is always cheaper that cure. 

What Fillmore Spencer Is Thankful For

Our attorneys and staff have much to be thankful for this holiday season.  We have asked each attorney and staff member to share what they are thankful for this holiday season and we would like to share these thoughts with you.

Barney Madsen--I'm grateful for my wife of 31 years, and for each of our children and grandchildren.

Bill Fillmore--I am thankful for the remarkable camaraderie we enjoy within our firm –the good humor, the willingness to help and support each other, the great traditions we have established, the common ethical commitment to practice law the right way, and the shared pursuit of a balanced life (family, church, community and professional) – all of which makes Fillmore Spencer a great place to work and serve.

Mark Stubbs—I am grateful for my wife Jan (the queen bee of our family), my five children and fifteen grandchildren. I am very blessed.

Matt Howell--I am thankful first and foremost for my family and the time I get to spend with them. I am also grateful for the community and country we live in, where we are free to determine our own way in life. I am grateful for Fillmore Spencer and for its clients and the opportunity that I have to work with them.

Randy Spencer--I am thankful for my 11th Great Grandfather, William Bradford, who gave up his wealth and status to travel to the New World seeking freedom and the right to worship God according to the dictates of his conscience. Grandpa Bradford suffered greatly during the trip across the Atlantic on the Mayflower and in his efforts to establish Plymouth. Grandpa Bradford not only sacrificed much to serve God, he spent his life serving his fellow men, and standing up for what he believed. He was the second Governor in the Massachusetts colony and served multiple terms, he worked to create peaceful relations with the Native Americans, and he gave of his substance to those in need. Grandpa Bradford was instrumental in the first Thanksgiving celebration after over a year of struggling together with his family and friends to survive in a new land.  For nearly the past year and a half, in a different sort of way, I too have struggled to survive the most difficult and all consuming case of my career. I am thankful for the example, love and support from my family and my firm family. I am thankful that while I was overwhelmed with a single, non-profitable case, I was not abandoned by my family or my firm. As it was said in the classic movie, "Lilo & Stitch", "Ohana means family, and family means no one gets left behind or forgotten." I am thankful for the spirit of "Ohana" that fills my home and office.  Words are not adequate to express my gratitude for my families who did not leave me behind or forget me while I did my best to stand up for what I believe was right. Though inadequate, I THANK YOU ALL.

Richard Sheffield--I am thankful for my family, for nature’s beauties, and for continued learning. I am grateful for good clients and the opportunity to help them accomplish meaningful purposes and address difficult challenges.

Scott Card--I am thankful for a terrific wife and family, for the great people I work with, and for a country that allows me to worship. I am thankful for so many wonderful things in my life, but I am NOT thankful for all the cheesy Hallmark Christmas movies that I have to watch with my wife and daughters.   

Aaron Dodd--I am thankful for our system of government, designed in a manner to protect individual freedoms from government intrusion. I am thankful for the good people in our nation that have sacrificed to support and protect our liberty and the liberty of people in many nations, which in turn have paved the path for our peace and prosperity. I am also thankful to our Creator, who gave us our liberty and the system of government that allows us to continue to protect our liberty. 

Diana Hardy—I am thankful for all of my wonderful family, friends, colleagues, and neighbors. I am also grateful for the kindness of strangers and the many opportunities there are to give back, particularly at this time of year! 

Joe Alisa--I am thankful for a wife and children who love me unconditionally; and I’m thankful for the time I have on earth to prove my gratitude to them. Also, I am thankful to associate with, and be associated with, the wonderful men and women at Fillmore Spencer, LLC who are, to me, outstanding examples of service, professionalism, patriotism, good humor, kindness, and compassion.

Kara North--I’m thankful I have the opportunity to work with the wonderful people of Fillmore Spencer. I’m thankful I have the opportunity to defend the rights afforded by the Constitution. I’m thankful for a wonderful and supportive husband and the opportunity we have to welcome a new baby into our home next Spring.

Levi Adams--I am thankful for a great family who is always excited to see me when I come home, even when I’ve been working long hours. 

Mary Black-Whitby--I am grateful for my family. They have celebrated all my successes and supported me through all my struggles. Without them, I would not be where or who I am today. I’m also grateful for the laws that protect us and our freedoms. Each day I work with them and I’m more and more amazed at how much good they can do.

Paul Dodd--I am thankful for beautiful autumn days, the best time of the year. With the fall leaves and football, what time of the year could possibly be better?

Scott Preston--I am thankful for my family, my faith and mountains.

Stephanie O’Brien—I am thankful for my family who fills my life with joy and purpose. I’m thankful for Fillmore Spencer and the flexibility my colleagues afford me in meeting the needs of my family while also doing the job I love. Who says we can’t we have it all?!

Ashley Anderson—I am grateful for my mom and grandma who have always been there for me.  They have taught me to work hard and helped me believe that I can achieve my dreams. I am grateful for the constant support they have been in my life.  I am also grateful to work at Fillmore Spencer. I am grateful to have such amazing attorneys to serve as mentors to me as I pursue my own law school dreams. I am also lucky to be surrounded by great co-workers who are friendly and who are great examples to me on a daily basis.

Beverly Royer--I am thankful for my husband and my house, for my knowledge of life after death, for the privilege of living in a free country, for my family, my friends, my life and my health. I'm grateful to be able to associate with kind and ethical people at work and to live in an area with traditional values.

Bonnie Williams--I am thankful for opposites and the education and appreciation that they bring. I am thankful to work really hard and then thoroughly enjoy a rest or some play. I am thankful that opposite seasons bring a smile to my face. I can appreciate the good side of each season and each season's opposite. This holiday season, I am thankful for the holiness of family life and all the differences and opposites that make us unique members of the great family of God.

Connor Bice--I am grateful for my family and friends, and the opportunity to live in the United States of America. I'm grateful for the men and women that serve this country both in the military and in the government and I am grateful for the chance to gain an education.

Debbie Wentz--I am thankful for my three active and amazing boys. They keep me young and I feel blessed to be their mother. I am also thankful for my health and feel blessed to just be here on this earth another day.

Farah Knudsen--I am thankful for good parents who loved me, taught me, and disciplined me.

Jessiane Raehl--I’m thankful for the body and mind I was blessed with and all the good things they can do. I’m grateful for learning, both academically and life. I’m thankful for my great husband and wonderful children. I’m grateful for our country and that I can work so closely with the judicial branch of the government. And I’m very grateful I can work in such a fantastic office with attorneys who defy the stereotype so often that I wonder why the stereotype even exists.

Jessica Gurr--I am thankful for my wonderful family, faithful friends and good work. I am thankful for the tender mercies of the Lord: peace, comfort, joy, and contentment, among a host of others. I am thankful for the sweet things in life and the challenges in life that makes those sweet things all the sweeter.

Karen Hudspeth--What can I say? I have been blessed with so much – the two most talented and loving sons and my loving family in Albuquerque, incredible friends, the opportunity to work with a great group of people at Fillmore Spencer, the blessing of good health, and freedom to worship and pray!  I could go on and on. . . I'm feeling extremely grateful this year.

Kathy Anderson—I am so grateful for the opportunity to work with amazing people at Fillmore Spencer who are compassionate, courageous and firm in their faith and convictions. I admire their examples at work, at home, at church, and at play and learn from them every day. I am also grateful for my beautiful daughter, Ashley, who is the light and joy of my life, my wonderful mom, and for family and friends who love me.

Lessli Chrisney--I am thankful for my family & friends. I am truly blessed. I am also thankful for the holiday season and the spirit it brings.

Mike Card--I’m grateful for opportunities in my life that help me push myself to be more than I am now. I am also grateful for the ability to change and improve.

Nattalie Earl--I am thankful to be recently married to my husband and for my family. I’m also thankful to live in such a pretty city with the majestic mountains.

Rachel Waters--I am thankful for my cheerful healthy family and for how much fun we have together. 

December CLE Brown Bag

All members of the Utah State Bar are invited to attend our December CLE Brown Bag Luncheon.  On December 13, 2013, we will hear from Fillmore Spencer associate, Stephanie O'Brien.  Stephanie will present on "Ethics for Legal Support Staff."  She will discuss confidential and privileged communications, unauthorized practice of law, and referencing legal matters on social media.  This presentation will be a great refresher for both attorneys and staff members.  This event will be held at noon in Fillmore Spencer's large conference room and lunch will be provided.  Please RSVP to (801) 426-8200.

Upcoming CLE Luncheons

We invite all members of the Utah State Bar to attend our upcoming CLE Brown Bag Luncheons.  On January 31, 2014, we are excited to welcome attorney Dan Day, who will give a presentation on “Construction Defect Claims and Consequences.” On February 28, 2014, Salt Lake Legal will present on data processing and related matters.  Both presentations will be held at noon in Fillmore Spencer’s large conference room.  Lunch will be provided.  Please RSVP to (801) 426-8200.  We hope to see you in 2014!

Photo courtesy of Flickr by Wonderlane

The Evolution of Happy Valley By Bill Fillmore

While I can't speak for the Karl G. Maeser generation, or successive generations through World War II, I am amazed at the evolution of our happy valley from the 1970s (when I attended BYU) to today.  And I am particularly struck by the developments I have witnessed here since I "returned home" to practice law in Provo (after attending law school at the University of Chicago, beginning my career in Denver, then accepting an invitation from President Holland to serve as BYU's Associate General Counsel, and returning to private practice here in 1991).

The initial marketing focus of our law firm (now known as Fillmore Spencer, a business and litigation firm now numbering 20 attorneys) was on the many emerging high-tech companies in the valley, but we have also witnessed the growth and evolution of many “main street” companies and clients as well.  Over the last 40 years, I have made the following observations about Utah Valley, which, to borrow from Brigham Young, is definitely "the right place" – for all kinds of reasons:

1. Our economic growth owes a great deal to the businesses and technologies that have been spun off from BYU, and now UVU as well.  They have been terrific engines for entrepreneurial development and economic expansion in our valley.                                                                                                           
2. Whether it's the religious values we share, the high education levels here, the exceptional volunteerism, the water we drink or whatever, this valley spawns an amazing number of independent, creative, indefatigable, entrepreneurial spirits, who are willing to take the risk associated with chasing their dreams, and whose businesses have helped entice many national companies into the valley.                             
3. We have been favored with remarkably dedicated public servants who work quite well together and who take a long-range view of our future needs.  For example, consider the impressive initiatives in Provo in recent years:  first, the community’s commitment to take the old Academy Square (then our greatest eyesore) and turn it into the new city library (one of our prize jewels), the first class recreation center just opened, the new Utah County Convention Center, the municipal airport expansion, and now the remarkable "Google Fiber City" innovations.                                                                                 
4. While not perfect, the relationships between various demographic groups, religious denominations and minorities are far better than what a stranger visiting our valley might expect.  This is due to some very determined, conscientious efforts by many good men and women, past and present.                                                                                                                                                                                      
5. The quality of law practiced here is quite good, and the ethics and integrity of the Utah Bar (and particularly Utah County) are a notch above other states – all of the lawyer jokes notwithstanding.                                                                                                                                                                
6. All of the national accolades and complimentary rankings that Utah, Utah County and various cities seem to garner every year are no accident.  Many people over several generations have worked very hard to lay the foundation for the good life and great opportunities we now enjoy here.

By virtue of the solid governmental, economic, religious, business and family-focused foundation laid by so many of our citizens in the past, I believe our best years are still ahead of us.  These things don't just happen, but are the result of what the Founding Fathers referred to as the "public virtue" necessary for our democracy.  It's great to be a small part of this wonderful, ever-expanding juggernaut known as Happy Valley.

Photo courtesy of Flickr by Ken Lund

Personal Injury Presentation Recap

Firm associate Levi Adams gave an informative presentation about personal injury cases at our September CLE luncheon.  He covered various topics including: making claims to insurance companies, how to litigate a case if necessary, and settling a case. 

An important point was the requirements for making a personal injury liability claim.  If you have been injured, you must have accrued over $3,000 in medical expenses or have a permanent injury in order to bring a claim for general damages. 

Another crucial point that was covered is settling the claim.  It is important to remember that when dealing with an insured- at fault party, the claim is typically against the insurance company, even though if litigation is commenced, the individual person must be named in the lawsuit.  

Lastly, underinsured (UIM) and uninsured (UM) coverage is crucial.  If an individual is injured by  another driver who carries the state minimum in liability coverage ($25,000) or does not have insurance coverage, then the person will need to use their UIM or UM coverage.  If one’s injuries exceeded $50,000, they could nonetheless be bound to only recovering $50,000 if both parties carried the state minimum.  It is advisable to review your UIM and UM coverage and ensure that there is adequate coverage if the at fault party does not have enough.  

Photo courtesy of Flickr by Alan Cleaver

September Brown Bag CLE: Personal Injury Litigation

Members of the Utah Bar are invited to attend our monthly Brown Bag CLE luncheon on Friday, September 27th at noon in Fillmore Spencer’s conference room. The topic this month is “Personal Injury Litigation” and will be presented by firm associate, Levi Adams. Levi will cover the basics of filing a claim, PIP, underinsured and uninsured coverage, small claims, recent legislative changes, and treatment facility issues. Lunch will be provided. Please RSVP to 801-426-8200.

Photo courtesy of Flickr by Andreanna Moya Photography.

A “Final Rule” Finally By Mark Stubbs

The U.S. Department of Labor has just published a Final Rule about domestic service employees being exempt from overtime and minimum wage laws for the Fair Labor Standards Act passed back in 1974.  Politicians beware!!  Your “servants” or domestic help may not be exempt from these rules. 

The original rule was supposed to be for only companionship services for the elderly and infirm, but like everything else it got over-used.  Home health care agencies will definitely not be exempt.  If you use domestic help of any kind, you ought to look into this to be sure you are in compliance with the new rules.

Photo courtesy of Flickr by smlp.co.uk.

I want to protect my brand – now what? By Barney Madsen

Adrián Ochoa asked himself the same question, and then called me.  Adrián is the CEO of Avantar Local, LLC (www.avantar.us), a Utah Valley company specializing in Yellow and White Pages mobile apps, and a Showtimes movie app. 

I told Adrián, “If you want to protect your brand, you need to know if someone else has already used or registered it.  If you don’t, you may end up putting money into marketing a brand you will later have to change, or end up in an expensive trademark infringement lawsuit and have to pay damages to the registrant.” 

So the first step in the process was to do a comprehensive trademark search to ensure his company could register the marks they wanted to use.  Our search included the U.S. Patent and Trademark Office database, the business name and trademark registries in all 50 states, Internet domain names, a directory of millions of U.S. business names, and trademark registries in other countries that Avantar identified where it wanted to do business. 

Through our research, we found that one of the trademarks Avantar wanted to use was already registered in several other countries.  Knowing that, Avantar changed its plans for its foreign brand, avoided a potential lawsuit, and was able to take the next steps to apply and obtain exclusive U.S. registration of their desired trademark. 

What were the next steps?

1. Use the mark (or plan to use it) "in commerce", meaning in connection with the sale of goods or services in more than one state.
2. Provide the dates the mark was first used and first used "in commerce."
3. Identify the International Class (or Classes) under which to file the mark.
4. Prepare a description of the goods or services offered in connection with the mark.
5. Decide whether to apply for a words-only or a words-and-design (logo) mark, or both.
6. Provide a copy of any logo, and a specimen to show the word mark or logo in use (for example, on a label or packaging, or, for an Internet-based business, a website screenshot); and
7. Pay a filing fee.

            So, before you decide a “do-it-yourself” approach to protecting your brand – and risk an expensive lawsuit – do what Adrián did and consider having a trademark professional conduct a comprehensive search and then help you prepare and file your application.