02-04 15:31 1st Sub. (Green) S.B. 86
Jen Plumb proposes the following substitute bill:
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Workplace Protection Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jen Plumb
House Sponsor:
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LONG TITLE
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General Description:
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This bill amends provisions relating to employment.
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Highlighted Provisions:
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This bill:
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▸ reduces the number of employees a person may employ before being considered an
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employer subject to the Utah Antidiscrimination Act for employment; and
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▸ amends the definition of sexual harassment.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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34A-5-102, as last amended by Laws of Utah 2024, Chapter 158
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34A-5-114, as enacted by Laws of Utah 2024, Chapter 95
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 34A-5-102 is amended to read:
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34A-5-102 . Definitions -- Unincorporated entities -- Joint employers --
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Franchisors.
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(1) As used in this chapter:
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(a) "Affiliate" means the same as that term is defined in Section 16-6a-102.
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(b) "Apprenticeship" means a program for the training of apprentices including a
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program providing the training of those persons defined as apprentices by Section
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35A-6-102.
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(c) "Bona fide occupational qualification" means a characteristic applying to an
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employee that:
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(i) is necessary to the operation; or
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(ii) is the essence of the employee's employer's business.
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(d) "Court" means a court with jurisdiction under Title 78A, Judiciary and Judicial
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Administration.
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(e) "Director" means the director of the division.
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(f) "Disability" means a physical or mental disability as defined and covered by the
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Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102.
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(g) "Division" means the Division of Antidiscrimination and Labor.
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(h) "Employee" means a person applying with or employed by an employer.
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(i)(i) "Employer" means:
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(A) the state;
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(B) a political subdivision;
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(C) a board, commission, department, institution, school district, trust, or agent of
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the state or a political subdivision of the state; or
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(D) a person employing [15] five or more employees within the state for each
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working day in each of 20 calendar weeks or more in the current or preceding
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calendar year.
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(ii) "Employer" does not include:
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(A) a religious organization, a religious corporation sole, a religious association, a
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religious society, a religious educational institution, or a religious leader, when
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that individual is acting in the capacity of a religious leader;
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(B) any corporation or association constituting an affiliate, a wholly owned
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subsidiary, or an agency of any religious organization, religious corporation
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sole, religious association, or religious society; or
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(C) the Boy Scouts of America or its councils, chapters, or subsidiaries.
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(j) "Employment agency" means a person:
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(i) undertaking to procure employees or opportunities to work for any other person; or
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(ii) holding the person out to be equipped to take an action described in Subsection
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(1)(j)(i).
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(k) "Federal executive agency" means an executive agency, as defined in 5 U.S.C. Sec.
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105, of the federal government.
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(l) "Franchise" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
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(m) "Franchisee" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
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(n) "Franchisor" means the same as that term is defined in 16 C.F.R. Sec. 436.1.
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(o) "Gender identity" has the meaning provided in the Diagnostic and Statistical Manual
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(DSM-5). A person's gender identity can be shown by providing evidence, including,
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but not limited to, medical history, care or treatment of the gender identity, consistent
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and uniform assertion of the gender identity, or other evidence that the gender
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identity is sincerely held, part of a person's core identity, and not being asserted for
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an improper purpose.
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(p) "Joint apprenticeship committee" means an association of representatives of a labor
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organization and an employer providing, coordinating, or controlling an apprentice
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training program.
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(q) "Labor organization" means an organization that exists for the purpose in whole or in
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part of:
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(i) collective bargaining;
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(ii) dealing with employers concerning grievances, terms or conditions of
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employment; or
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(iii) other mutual aid or protection in connection with employment.
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(r) "National origin" means the place of birth, domicile, or residence of an individual or
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of an individual's ancestors.
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(s) "On-the-job-training" means a program designed to instruct a person who, while
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learning the particular job for which the person is receiving instruction:
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(i) is also employed at that job; or
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(ii) may be employed by the employer conducting the program during the course of
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the program, or when the program is completed.
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(t) "Person" means:
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(i) one or more individuals, partnerships, associations, corporations, legal
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representatives, trusts or trustees, or receivers;
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(ii) the state; and
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(iii) a political subdivision of the state.
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(u) "Pregnancy, childbirth, or pregnancy-related conditions" includes breastfeeding or
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medical conditions related to breastfeeding.
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(v) "Presiding officer" means the same as that term is defined in Section 63G-4-103.
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(w) "Prohibited employment practice" means a practice specified as discriminatory, and
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therefore unlawful, in Section 34A-5-106.
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(x) "Religious leader" means an individual who is associated with, and is an authorized
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representative of, a religious organization or association or a religious corporation
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sole, including a member of clergy, a minister, a pastor, a priest, a rabbi, an imam, or
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a spiritual advisor.
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(y) "Retaliate" means the taking of adverse action by an employer, employment agency,
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labor organization, apprenticeship program, on-the-job training program, or
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vocational school against one of its employees, applicants, or members because the
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employee, applicant, or member:
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(i) opposes an employment practice prohibited under this chapter; or
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(ii) files charges, testifies, assists, or participates in any way in a proceeding,
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investigation, or hearing under this chapter.
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(z) "Sexual orientation" means an individual's actual or perceived orientation as
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heterosexual, homosexual, or bisexual.
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(aa) "Undue hardship" means an action that requires significant difficulty or expense
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when considered in relation to factors such as the size of the entity, the entity's
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financial resources, and the nature and structure of the entity's operation.
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(bb) "Unincorporated entity" means an entity organized or doing business in the state
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that is not:
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(i) an individual;
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(ii) a corporation; or
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(iii) publicly traded.
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(cc) "Vocational school" means a school or institution conducting a course of
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instruction, training, or retraining to prepare individuals to follow an occupation or
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trade, or to pursue a manual, technical, industrial, business, commercial, office,
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personal services, or other nonprofessional occupations.
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(2)(a) For purposes of this chapter, an unincorporated entity that is required to be
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licensed under Title 58, Chapter 55, Utah Construction Trades Licensing Act, is
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presumed to be the employer of each individual who, directly or indirectly, holds an
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ownership interest in the unincorporated entity.
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(b) Pursuant to rules made by the commission in accordance with Title 63G, Chapter 3,
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Utah Administrative Rulemaking Act, an unincorporated entity may rebut the
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presumption under Subsection (2)(a) for an individual by establishing by clear and
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convincing evidence that the individual:
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(i) is an active manager of the unincorporated entity;
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(ii) directly or indirectly holds at least an 8% ownership interest in the unincorporated
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entity; or
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(iii) is not subject to supervision or control in the performance of work by:
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(A) the unincorporated entity; or
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(B) a person with whom the unincorporated entity contracts.
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(c) As part of the rules made under Subsection (2)(b), the commission may define:
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(i) "active manager";
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(ii) "directly or indirectly holds at least an 8% ownership interest"; and
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(iii) "subject to supervision or control in the performance of work."
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(3) For purposes of determining whether two or more persons are considered joint
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employers under this chapter, an administrative ruling of a federal executive agency may
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not be considered a generally applicable law unless that administrative ruling is
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determined to be generally applicable by a court of law, or adopted by statute or rule.
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(4)(a) For purposes of this chapter, a franchisor is not considered to be an employer of:
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(i) a franchisee; or
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(ii) a franchisee's employee.
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(b) With respect to a specific claim for relief under this chapter made by a franchisee or
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a franchisee's employee, this Subsection (4) does not apply to a franchisor under a
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franchise that exercises a type or degree of control over the franchisee or the
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franchisee's employee not customarily exercised by a franchisor for the purpose of
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protecting the franchisor's trademarks and brand.
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(5) Notwithstanding Title 78B, Chapter 3a, Venue for Civil Actions, a person shall bring an
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action under this chapter in the judicial district in which the asserted unfair employment
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practice occurs if the action is brought in the district court.
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Section 2. Section 34A-5-114 is amended to read:
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34A-5-114 . Limitations on enforceability of nondisclosure and
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non-disparagement clauses -- Retaliation prohibited.
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(1) As used in this section:
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(a) "Confidentiality clause" means a nondisclosure clause or a non-disparagement clause.
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(b) "Employee" means a current or a former employee.
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(c) "Nondisclosure clause" means an agreement between an employee and employer that[:]
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[(i)] prevents, or has the effect of preventing, an employee from disclosing or
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discussing:
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[(A)] (i) sexual assault;
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[(B)] (ii) allegations of sexual assault;
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[(C)] (iii) sexual harassment; or
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[(D)] (iv) allegations of sexual harassment.
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(d) "Non-disparagement clause" means an agreement between an employee and
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employer that prohibits, or has the effect of prohibiting, an employee from making a
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negative statement that is:
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(i) about the employer; and
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(ii) related to:
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(A) a claim of sexual assault or sexual harassment;
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(B) a sexual assault dispute; or
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(C) a sexual harassment dispute.
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(e) "Post-employment restrictive covenant" means the same as that term is defined in
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Section 34-51-102.
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(f) "Proprietary information" means an employer's business plan or customer
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information.
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(g) "Retaliate" means taking an adverse action against an employee because the
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employee made an allegation of sexual harassment or assault, including:
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(i) discharge;
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(ii) suspension;
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(iii) demotion; or
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(iv) discrimination in the terms, conditions, or privileges of employment.
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(h) "Sexual assault" means:
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(i) conduct that would constitute a violation of 18 U.S.C. Secs. 2241 through 2244; or
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(ii) criminal conduct described in Title 76, Chapter 5, Part 4, Sexual Offenses.
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(i) "Sexual assault dispute" means a dispute between an employer and the employer's
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employee relating to alleged sexual assault.
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[(j) "Sexual harassment" means conduct that is a violation of:]
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[(i) Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.; or]
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[(ii) Subsection 34A-5-106(1)(a)(i) prohibiting harassment on the basis of sex, sexual
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orientation, or gender.]
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(j) "Sexual harassment" means harassment on the basis of sex, sexual orientation, or
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gender, as prohibited in:
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(i) Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 200e et seq.; or
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(ii) Subsection 34A-5-106(1)(a)(i).
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(k) "Sexual harassment dispute" means a dispute between an employer and the
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employer's employee relating to alleged sexual harassment.
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(2)(a) A confidentiality clause regarding sexual misconduct, as a condition of
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employment, is against public policy and is void and unenforceable.
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(b) After an employee makes an allegation of sexual harassment or sexual assault, an
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employer of any sized business, regardless of Subsection 34-5-102(1)(i)(D):
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(i) may not retaliate against the employee because the employee made an allegation
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of sexual harassment or assault; or
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(ii) may not retaliate based on an employee's refusal to enter into a confidentiality
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clause or an employment contract that, as a condition of employment, contains a
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confidentiality clause.
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(c) An employee may, within three business days after the day on which the employee
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agrees to a settlement agreement that includes a confidentiality clause regarding
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sexual misconduct, withdraw from the settlement agreement.
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(3) An employer who attempts to enforce a confidentiality clause in violation of this section:
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(a) is liable for all costs, including reasonable attorney fees, resulting from legal action
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to enforce the confidentiality clause; and
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(b) is not entitled to monetary damages resulting from a breach of a confidentiality
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clause.
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(4) This section does not:
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(a) prohibit an agreement between an employee who alleges sexual assault or sexual
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harassment and an employer from containing a nondisclosure clause, a
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non-disparagement clause, or any other clause prohibiting disclosure of:
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(i) the amount of a monetary settlement; or
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(ii) at the request of the employee, facts that could reasonably lead to the
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identification of the employee;
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(b) prohibit an employer from requiring an employee to:
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(i) sign a post-employment restrictive covenant; or
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(ii) agree not to disclose an employer's non-public trade secrets, proprietary
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information, or confidential information that does not involve illegal acts;
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(c) authorize an employee to:
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(i) disclose data otherwise protected by law or legal privilege; or
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(ii) knowingly make statements or disclosures that are false or made with reckless
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disregard of the truth;
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(d) prohibit an employee from discussing sexual misconduct or allegations of sexual
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misconduct in a civil or criminal case when subpoenaed if the sexual misconduct or
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allegations of sexual misconduct are against the individual whom the employee
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alleged engaged in sexual misconduct;
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(e) permit a disclosure that would violate state or federal law; or
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(f) limit other grounds that may exist at law or in equity for the unenforceability of a
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confidentiality clause.
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Section 3. Effective Date.
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This bill takes effect on May 7, 2025.
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