Utah

Section 34-45-101. Title.

This chapter is known as "Protection of Activities in Private Vehicles."

Enacted by Chapter 379, 2009 General Session

Section 34-45-102. Definitions.

As used in this chapter:

(1) "Firearm" has the same meaning as provided in Section 76-10-501.

(2) "Motor vehicle" has the same meaning as provided in Section 41-1a-102.

(3) "Person" means an individual, property owner, landlord, tenant, employer, business entity, or other legal entity.

Enacted by Chapter 379, 2009 General Session

Section 34-45-103. Protection of certain activities -- Firearms -- Free exercise of religion.

(1) Except as provided in Subsection (2), a person may not establish, maintain, or enforce any policy or rule that has the effect of:

(a) prohibiting any individual from transporting or storing a firearm in a motor vehicle on any property designated for motor vehicle parking, if:

(i) the individual is legally permitted to transport, possess, purchase, receive, transfer, or store the firearm;

(ii) the firearm is locked securely in the motor vehicle or in a locked container attached to the motor vehicle while the motor vehicle is not occupied; and

(iii) the firearm is not in plain view from the outside of the motor vehicle; or

(b) prohibiting any individual from possessing any item in or on a motor vehicle on any property designated for motor vehicle parking, if the effect of the policy or rule constitutes a substantial burden on that individual's free exercise of religion.

(2) A person may establish, maintain, or enforce a policy or rule that has the effect of placing limitations on or prohibiting an individual from transporting or storing a firearm in a motor vehicle on property the person has designated for motor vehicle parking if:

(a) the person provides, or there is otherwise available, one of the following, in a location reasonably proximate to the property the person has designated for motor vehicle parking:

(i) alternative parking for individuals who desire to transport, possess, receive, transfer, or store a firearm in the individual's motor vehicle at no additional cost to the individual; or

(ii) a secured and monitored storage location where the individual may securely store a firearm before proceeding with the vehicle into the secured parking area; or

(b) the person complies with Subsection 34-45-107(5).

Enacted by Chapter 379, 2009 General Session

Section 34-45-104. Protection from liability.

A person that owns or controls a parking area that is subject to this chapter and that complies with the requirements of Section 34-45-103 is not liable in any civil action for any occurrence resulting from, connected with, or incidental to the use of a firearm, by any person, unless the use of the firearm involves a criminal act by the person who owns or controls the parking area.

Enacted by Chapter 379, 2009 General Session

Section 34-45-105. Cause of action for noncompliance -- Remedies.

(1) An individual who is injured, physically or otherwise, as a result of any policy or rule prohibited by Section 34-45-103, may bring a civil action in a court of competent jurisdiction against any person that violates the provisions of Section 34-45-103.

(2) Any individual who asserts a claim under this section is entitled to request:

(a) declaratory relief;

(b) temporary or permanent injunctive relief to prevent the threatened or continued violation;

(c) recovery for actual damages sustained; and

(d) punitive damages, if:

(i) serious bodily injury or death occurs as a result of the violation of Section 34-45-103; or

(ii) the person who violates Section 34-45-103 has previously been notified by the attorney general that a policy or rule violates Section 34-45-103.

(3) The prevailing party in an action brought under this chapter may recover its court costs and reasonable attorney fees incurred.

(4) Nothing in this chapter shall be construed or held to affect any rights or claims made in relation to Title 34A, Chapter 2, Workers' Compensation Act.

Enacted by Chapter 379, 2009 General Session

Section 34-45-106. Enforcement by attorney general.

(1) The attorney general may bring an action to enforce this chapter and may request any relief that is provided for under Section 34-45-105, including a request for damages on behalf of any individual suffering loss because of a violation of this chapter.

(2) Upon entry of final judgment for a cause of action brought under this section, the court may award restitution, when appropriate, to any individual suffering loss because of a violation of this chapter if proof of loss is submitted to the satisfaction of the court.

Enacted by Chapter 379, 2009 General Session

Section 34-45-107. Exemptions -- Limitations on chapter -- School premises -- Government entities -- Religious organizations -- Single family detached residential units.

(1) (a) School premises, as defined in Subsection 76-3-203.2(1), are exempt from the provisions of this chapter.

(b) Possession of a firearm on or about school premises is subject to the provisions of Section 76-10-505.5.

(2) Government entities, including a local authority or state entity, are subject to the requirements of Title 53, Chapter 5a, Firearm Laws, but are otherwise exempt from the provisions of this chapter.

(3) Religious organizations, including religious organizations acting as an employer, are exempt from, and are not subject to the provisions of this chapter.

(4) Owner-occupied single family detached residential units and tenant-occupied single family detached residential units are exempt from the provisions of this chapter.

(5) A person who is subject to federal law that specifically forbids the presence of a firearm from property designated for motor vehicle parking, or a person who is subject to Section 550 of the United States Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295 or regulations enacted in accordance with that section, is exempt from Section 34-45-103 if:

(a) providing alternative parking or a storage location under Subsection 34-45-103(2)(a) would pose an undue burden on the person; and

(b) the person files a statement with the attorney general citing the federal law that forbids the presence of a firearm and detailing the reasons why providing alternative parking or a storage location poses an undue burden.

(6) A person who is subject to Section 550 of the United States Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295 or regulations enacted in accordance with that section is exempt from this chapter if:

(a) the person has attempted to provide alternative parking or a storage location in accordance with Subsection 34-45-103(2)(a);

(b) the secretary of the federal Department of Homeland Security notifies the person that the provision of alternative parking or a storage location causes the person to be out of compliance with Section 550 of the United States Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295 or regulations enacted in accordance with that section and the person may be subject to punitive measures; and

(c) the person files a detailed statement with the attorney general notifying the attorney general of the facts under Subsections (6)(a) and (b).

Enacted by Chapter 379, 2009 General Session

Section 34-43-101. Title.

This chapter is known as the "Disaster Service Volunteer Leave Act."

Enacted by Chapter 186, 1998 General Session

Section 34-43-102. Definitions.

As used in this chapter:

(1) "Certified disaster service volunteer" means any person who has completed the necessary training for and has been certified as a disaster service specialist by the American Red Cross.

(2) "Disaster" means any disaster designated at Level III or higher in the American National Red Cross Regulations and Procedures.

(3) "State agency" means any state office, officer, official, department, board, commission, institution, bureau, agency, division, or unit of the state, including those within the legislative and judicial branches of the state government.

Enacted by Chapter 186, 1998 General Session

Section 34-43-103. Leave of absence -- Request for leave -- Approval by agency.

(1) An employee of a state agency who is a certified disaster service volunteer may be granted leave from work with pay for an aggregate of up to 15 work days, consecutively or nonconsecutively, in any 12-month period to participate in disaster relief services for the American Red Cross in connection with any disaster, upon the request of the American Red Cross for such employee's services.

(2) An employee of a state agency requesting leave under this chapter shall file a written request with the employing state agency which includes:

(a) the anticipated duration of the leave of absence;

(b) the type of service the employee is to provide on behalf of the American Red Cross;

(c) the nature and location of the disaster where the employee's services will be provided; and

(d) a copy of the written request for the employee's services from an official of the American Red Cross.

(3) Nothing contained in this chapter shall be construed to require any state agency to grant a public employee's request for voluntary disaster service leave if the employing state agency determines that the grant of leave would pose a hardship on the employing state agency.

Enacted by Chapter 186, 1998 General Session

Section 34-39-1. Citation of act.

This act is known as the "Employment Inventions Act."

Enacted by Chapter 217, 1989 General Session

Section 34-39-2. Definitions.

As used in this chapter:

(1) "Employment invention" means any invention or part thereof conceived, developed, reduced to practice, or created by an employee which is:

(a) conceived, developed, reduced to practice, or created by the employee:

(i) within the scope of his employment;

(ii) on his employer's time; or

(iii) with the aid, assistance, or use of any of his employer's property, equipment, facilities, supplies, resources, or intellectual property;

(b) the result of any work, services, or duties performed by an employee for his employer;

(c) related to the industry or trade of the employer; or

(d) related to the current or demonstrably anticipated business, research, or development of the employer.

(2) "Intellectual property" means any and all patents, trade secrets, know-how, technology, confidential information, ideas, copyrights, trademarks, and service marks and any and all rights, applications, and registrations relating to them.

Enacted by Chapter 217, 1989 General Session

Section 34-39-3. Scope of act -- When agreements between an employee and employer are enforceable or unenforceable with respect to employment inventions -- Exceptions.

(1) An employment agreement between an employee and his employer is not enforceable against the employee to the extent that the agreement requires the employee to assign or license, or to offer to assign or license, to the employer any right or intellectual property in or to an invention that is:

(a) created by the employee entirely on his own time; and

(b) not an employment invention.

(2) An agreement between an employee and his employer may require the employee to assign or license, or to offer to assign or license, to his employer any or all of his rights and intellectual property in or to an employment invention.

(3) Subsection (1) does not apply to:

(a) any right, intellectual property or invention that is required by law or by contract between the employer and the United States government or a state or local government to be assigned or licensed to the United States; or

(b) an agreement between an employee and his employer which is not an employment agreement.

(4) Notwithstanding Subsection (1), an agreement is enforceable under Subsection (1) if the employee's employment or continuation of employment is not conditioned on the employee's acceptance of such agreement and the employee receives a consideration under such agreement which is not compensation for employment.

(5) Employment of the employee or the continuation of his employment is sufficient consideration to support the enforceability of an agreement under Subsection (2) whether or not the agreement recites such consideration.

(6) An employer may require his employees to agree to an agreement within the scope of Subsection (2) as a condition of employment or the continuation of employment.

(7) An employer may not require his employees to agree to anything unenforceable under Subsection (1) as a condition of employment or the continuation of employment.

(8) Nothing in this chapter invalidates or renders unenforceable any employment agreement or provisions of an employment agreement unrelated to employment inventions.

Enacted by Chapter 217, 1989 General Session

Section 34-42-1. Employer references -- Civil liability -- Rebuttable presumption -- Common law.

(1) An employer who in good faith provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee, may not be held civilly liable for the disclosure or the consequences of providing the information.

(2) There is a rebuttable presumption that an employer is acting in good faith when the employer provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee.

(3) The presumption of good faith is rebuttable only upon showing by clear and convincing evidence that the employer disclosed the information with actual malice or with intent to mislead.

(4) For purposes of this section "actual malice" means knowledge that the information was false or reckless disregard of whether the information was false.

(5) This section does not alter any privileges that exist under common law.

Enacted by Chapter 346, 1995 General Session

Section 34-41-101. Definitions.

As used in this chapter:

(1) "Drug" means any substance recognized as a drug in the United States Pharmacopeia, the National Formulary, the Homeopathic Pharmacopeia, or other drug compendia, including Title 58, Chapter 37, Utah Controlled Substances Act, or supplement to any of those compendia.

(2) "Drug testing" means the scientific analysis for the presence of drugs or their metabolites in the human body in accordance with the definitions and terms of this chapter.

(3) "Local governmental employee" means any person or officer in the service of a local governmental entity or state institution of higher education for compensation.

(4) (a) "Local governmental entity" means any political subdivision of Utah including any county, municipality, local school district, local district, special service district, or any administrative subdivision of those entities.

(b) "Local governmental entity" does not mean Utah state government or its administrative subdivisions provided for in Sections 67-19-33 through 67-19-38.

(5) "Periodic testing" means preselected and preannounced drug testing of employees or volunteers conducted on a regular schedule.

(6) "Prospective employee" means any person who has made a written or oral application to become an employee of a local governmental entity or a state institution of higher education.

(7) "Random testing" means the unannounced drug testing of an employee or volunteer who was selected for testing by using a method uninfluenced by any personal characteristics other than job category.

(8) "Reasonable suspicion for drug testing" means an articulated belief based on the recorded specific facts and reasonable inferences drawn from those facts that a local government employee or volunteer is in violation of the drug-free workplace policy.

(9) "Rehabilitation testing" means unannounced but preselected drug testing done as part of a program of counseling, education, and treatment of an employee or volunteer in conjunction with the drug-free workplace policy.

(10) "Safety sensitive position" means any local governmental or state institution of higher education position involving duties which directly affects the safety of governmental employees, the general public, or positions where there is access to controlled substances, as defined in Title 58, Chapter 37, Utah Controlled Substances Act, during the course of performing job duties.

(11) "Sample" means urine, blood, breath, saliva, or hair.

(12) "State institution of higher education" means the institution as defined in Section 53B-3-102.

(13) "Volunteer" means any person who donates services as authorized by the local governmental entity or state institution of higher education without pay or other compensation except expenses actually and reasonably incurred.

Amended by Chapter 329, 2007 General Session

Section 34-41-102. Governmental drug-free workplace policies.

(1) Any local governmental entity or state institution of higher education may establish workplace policies and procedures designed to:

(a) educate, counsel, and increase awareness of the dangers of drugs; and

(b) prohibit and discourage the detrimental use of drugs among its various classes of employees and volunteers.

(2) A local governmental entity or state institution of higher education may test employees, volunteers, prospective employees, and prospective volunteers for the presence of drugs or their metabolites, in accordance with the provisions of this chapter, as a condition of hiring, continued employment, and voluntary services.

(3) A drug-free workplace policy may include, but does not require, drug testing under the following circumstances:

(a) preemployment hiring or volunteer selection procedures;

(b) postaccident investigations;

(c) reasonable suspicion situations;

(d) preannounced periodic testing;

(e) rehabilitation programs;

(f) random testing in safety sensitive positions; or

(g) to comply with the federal Drug Free Workplace Act of 1988, 41 U.S.C. 701 through 707, or other federally required drug policies.

(4) This section may not be construed to prohibit local governmental entities or state institutions of higher education from establishing policies regarding other hazardous or intoxicating substances.

Enacted by Chapter 18, 1994 General Session

Section 34-41-103. Policy requirements.

(1) (a) Before testing or retesting for the presence of drugs, a local governmental entity or state institution of higher education shall:

(i) adopt a written policy or ordinance;

(ii) distribute it to employees and volunteers; and

(iii) make it available for review by prospective employees and prospective volunteers.

(b) The local governmental entity or state institution of higher education may only test or retest for the presence of drugs by following the procedures and requirements of that ordinance or policy.

(2) The collection and testing of samples shall be conducted in accordance with Section 34-41-104 and not necessarily limited to circumstances where there are indications of individual, job-related impairment of an employee or volunteer.

(3) The use and disposition of all drug test results are subject to the limitations of Title 63G, Chapter 2, Government Records Access and Management Act, and Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.

(4) An employee, prospective employee, volunteer, or prospective volunteer shall submit a split urine sample for testing or retesting.

(5) A split urine sample shall consist of at least 45 ml of urine. The urine shall be divided into two specimen bottles, with at least 30 ml of urine in one bottle and at least 15 ml of urine in the other. If the test results of the 30 ml urine sample indicate the presence of drugs, the donor of the test shall have 72 hours from the time the donor is so notified to request, at the donor's option that the 15 ml urine sample be tested for the indicated drugs, the expense of which shall be divided equally between the donor and employer. In addition to the test results of the 30 ml urine sample, the test results of the 15 ml urine sample shall be considered at any subsequent disciplinary hearing if the requirements of this section and Section 34-41-104 have been complied with in the collection, handling, and testing of these samples.

Amended by Chapter 382, 2008 General Session

Section 34-41-104. Requirements for identification, collection, and testing of samples.

(1) The local governmental entity or state institution of higher education shall ensure that:

(a) all sample collection under this chapter is performed by an entity independent of the local government or state institution of higher education;

(b) all testing for drugs under this chapter is performed by an independent laboratory certified for employment drug testing by either the Substance Abuse and Mental Health Services Administration or the College of American Pathology;

(c) the instructions, chain of custody forms, and collection kits, including bottles and seals, used for sample collection are prepared by an independent laboratory certified for employment drug testing by either the Substance Abuse and Mental Health Services Administration or the College of American Pathology; and

(d) sample collection and testing for drugs under this chapter is in accordance with the conditions established in this section.

(2) The local governmental entity or state institution of higher education may:

(a) require samples from its employees, volunteers, prospective employees, or prospective volunteers;

(b) require presentation of reliable identification to the person collecting the samples; and

(c) in order to dependably test for the presence of drugs, designate the type of sample to be used for testing.

(3) The local governmental entity or state institution of higher education shall ensure that its ordinance or policy requires that:

(a) the collection of samples is performed under reasonable and sanitary conditions;

(b) samples are collected and tested:

(i) to ensure the privacy of the individual being tested; and

(ii) in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;

(c) sample collection is appropriately documented to ensure that:

(i) samples are labeled and sealed so as reasonably to preclude the probability of erroneous identification of test results; and

(ii) employees, volunteers, prospective employees, or prospective volunteers have the opportunity to provide notification of any information:

(A) that any person named in Subsection (3)(c)(ii) considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs or other relevant medical information; and

(B) in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213;

(d) sample collection, storage, and transportation to the place of testing are performed in a manner that reasonably precludes the probability of sample misidentification, contamination, or adulteration; and

(e) sample testing conforms to scientifically accepted analytical methods and procedures.

(4) Before the result of any test may be used as a basis for any action by a local governmental entity or state institution of higher education under Section 34-41-105, the local governmental entity or state institution of higher education shall verify or confirm any positive initial screening test by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical methods and shall provide that the employee, prospective employee, volunteer, or prospective volunteer be notified as soon as possible by telephone or in writing at the last-known address or telephone number of the result of the initial test, if it is positive, and told of his option to have the 15 ml urine sample tested, at an expense equally divided between the donor and the employer. In addition to the initial test results, the test results of the 15 ml urine sample shall be considered at any subsequent disciplinary hearing if the requirements of this section and Section 34-41-104 have been complied with in the collection, handling, and testing of these samples.

(5) Any drug testing by a local governmental entity or state institution of higher education shall occur during or immediately after the regular work period of the employee or volunteer and shall be considered as work time for purposes of compensation and benefits.

(6) The local governmental entity or state institution of higher education shall pay all costs of sample collection and testing for drugs required under its ordinance or policy, including the costs of transportation if the testing of a current employee or volunteer is conducted at a place other than the workplace.

Amended by Chapter 13, 1998 General Session

Section 34-41-105. Rehabilitative and disciplinary actions.

(1) If a verified or confirmed positive drug test result indicates a violation of the local governmental entity's or state institution of higher education's written drug-free workplace policy, if an employee, volunteer, prospective employee, or prospective volunteer refuses to provide a sample in accordance with the written policy, or otherwise violates the written policy, an employer may use that test result, refusal, or violation as the basis for imposing any rehabilitative and disciplinary actions authorized by this section.

(2) If the conditions required by Subsection (1) are met, the employer may:

(a) require the employee to enroll in a rehabilitation, treatment, or counseling and educational program, approved by the local governmental entity or state institution of higher education as a condition of continued employment or volunteer service;

(b) suspend the employee with or without pay for a period of time;

(c) terminate the employment or voluntary services;

(d) refuse to hire a prospective employee or use the services of a volunteer; and

(e) impose disciplinary measures in conformance with the usual procedures, including employment contracts of the local governmental entity or state institution of higher education.

Enacted by Chapter 18, 1994 General Session

Section 34-41-106. Employee not disabled.

An employee, volunteer, prospective employee, or prospective volunteer whose drug test results are verified or confirmed as positive in accordance with the provisions of this chapter shall not, by virtue of those results alone, be defined as disabled for purposes of:

(1) Title 34A, Chapter 5, Utah Antidiscrimination Act; or

(2) the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.

Amended by Chapter 375, 1997 General Session

Section 34-41-107. No physician-patient relationship created.

A physician-patient relationship is not created between an employee, volunteer, prospective employee, or prospective volunteer, and the local governmental entity, state institution of higher education, or any person performing the test, solely by the establishment of a drug testing program in the workplace.

Enacted by Chapter 18, 1994 General Session

Section 34-44-101. Title.

This chapter is known as the "Sales Representative Commission Payment Act."

Enacted by Chapter 65, 2007 General Session

Section 34-44-102. Definitions.

As used in this chapter:

(1) "Business relationship" means an agreement that governs the relationship of principal and sales representative.

(2) "Commission" means:

(a) compensation:

(i) that accrues to a sales representative;

(ii) for payment by a principal; and

(iii) at a rate expressed as a percentage of the dollar amount of sales, orders, or profits; or

(b) any other method of compensation agreed to between a sales representative and a principal including:

(i) fees for services; and

(ii) a retainer.

(3) "Principal" means a person who:

(a) engages in any of the following activities with regard to a product or service:

(i) manufactures;

(ii) produces;

(iii) imports;

(iv) sells; or

(v) distributes;

(b) establishes a business relationship with a sales representative to solicit orders for a product or a service described in Subsection (3)(a); and

(c) agrees to compensate a sales representative, in whole or in part, by commission.

(4) (a) Except as provided in Subsection (4)(b), "sales representative" means a person who enters into a business relationship with a principal:

(i) to solicit orders for a product or a service described in Subsection (3)(a); and

(ii) under which the person is compensated, in whole or in part, by commission.

(b) "Sales representative" does not include:

(i) an employee of a principal;

(ii) a person licensed under Title 31A, Insurance Code;

(iii) a person licensed under Title 41, Chapter 3, Part 2, Licensing;

(iv) a person licensed under Title 61, Chapter 2f, Real Estate Licensing and Practices Act;

(v) a person who provides a product or service under a business relationship with a principal that is incident to the purchase or sale of real property; or

(vi) a person who places an order or purchases a product or service for that person's own account for resale.

(5) "Terminates" or "termination" means the end of a business relationship between a sales representative and a principal, whether by:

(a) agreement;

(b) expiration of a time period; or

(c) exercise of a right of termination by either the principal or the sales representative.

Amended by Chapter 379, 2010 General Session

Section 34-44-103. Jurisdiction in courts.

An action under this chapter may be brought against a principal in a court of this state if:

(1) the principal enters into a business relationship in this state with a sales representative to solicit orders for a product or a service; or

(2) (a) a product of the principal is:

(i) manufactured, distributed, sold, or received in this state; or

(ii) imported to or from this state; or

(b) a service of the principal is provided in this state.

Enacted by Chapter 65, 2007 General Session

Section 34-44-104. Void provisions.

Any of the following provisions in an agreement between a sales representative and a principal is void:

(1) an express waiver of any right under this chapter;

(2) for a writing required by Section 34-44-201 that is entered into in this state, a provision that makes the sales representative subject to the laws of another state; or

(3) a requirement that the sales representative pursue a claim under this chapter in a court not located in the state.

Enacted by Chapter 65, 2007 General Session

Section 34-44-201. Written business relationship.

(1) The business relationship between a sales representative and a principal shall be in a writing signed by both the principal and the sales representative.

(2) The writing required by Subsection (1) shall set forth the method by which the sales representative's commission is:

(a) computed; and

(b) paid.

(3) The principal shall provide the sales representative with a copy of the signed writing required by Subsection (1).

Enacted by Chapter 65, 2007 General Session

Section 34-44-202. Payment of commission -- Payment on termination -- Settlement.

(1) The principal shall pay a sales representative all commissions due to the sales representative during the time the business relationship between the principal and sales representative is in effect in accordance with the writing required by Section 34-44-201.

(2) If a business relationship between a principal and sales representative terminates, the principal shall pay to the sales representative:

(a) within 30 days after the day on which the termination is effective, all commissions due on the day on which the termination is effective; and

(b) within 14 days after the day on which a commission becomes due if the commission is due after the day on which the termination is effective.

(3) (a) Unless payment is made pursuant to a binding and final written settlement agreement and release, the acceptance by a sales representative of a partial commission paid by the principal under the business relationship does not constitute a release as to the balance of any commission that the sales representative claims is due because of the business relationship.

(b) A full release of all commission claims required by a principal as a condition to a partial commission payment is void.

Enacted by Chapter 65, 2007 General Session

Section 34-44-203. Revocable offer of commission.

If a principal makes a revocable offer of a commission to a sales representative, the sales representative is entitled to the commission agreed upon under the business relationship if:

(1) the principal revokes the offer of commission;

(2) the sales representative establishes that the revocation is for a purpose of avoiding payment of the commission;

(3) the revocation occurs after the principal obtains an order for the principal's product or service through the efforts of the sales representative; and

(4) the principal's product or service that is the subject of the order is provided to and paid for by a customer.

Enacted by Chapter 65, 2007 General Session

Section 34-44-301. Failure to pay commission.

(1) A sales representative may bring a civil action in a court of competent jurisdiction against a principal for failure by the principal to comply with:

(a) any provision of an agreement relating to the payment of commission; or

(b) Subsection 34-44-202(1) or (2).

(2) If a principal is found liable under Subsection (1), the principal is liable to the sales representative for:

(a) three times an amount calculated by:

(i) determining the sum of unpaid commission owed to the sales representative; and

(ii) subtracting from the amount determined under Subsection (2)(a)(i) money the sales representative owes the principal;

(b) reasonable attorney fees; and

(c) court costs.

Enacted by Chapter 65, 2007 General Session

Section 34-44-302. Other remedies.

This chapter does not:

(1) invalidate or restrict any alternative or additional right or remedy available to a sales representative; or

(2) preclude a sales representative from seeking to recover in an action on all claims against a principal.

Enacted by Chapter 65, 2007 General Session

Section 34-46-101. Title.

This chapter is known as the "Employment Selection Procedures Act."

Enacted by Chapter 174, 2009 General Session

Section 34-46-102. Definitions.

As used in this chapter:

(1) "Applicant" means an individual that provides information to an employer for the purpose of obtaining employment.

(2) "Division" means the Labor Commission's Division of Antidiscrimination and Labor.

(3) "Employer" means a person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year.

(4) "Employment selection process" means the process by which an employer selects an individual to be an employee for the employer.

(5) "Initial selection process" means the receipt of information in a record from an applicant that the employer uses to determine whether the applicant will be considered for a second review for the position for which the applicant is applying.

(6) "Record" means information that is:

(a) inscribed on a tangible medium; or

(b) (i) received or stored in an electronic or other medium; and

(ii) retrievable in perceivable form.

Amended by Chapter 218, 2010 General Session

Section 34-46-201. Information collected.

(1) Except as provided in Subsection (2), an employer may not request the following information before an applicant is offered a job:

(a) Social Security number;

(b) date of birth; or

(c) driver license number.

(2) An employer may request the information listed in Subsection (1) before an applicant is offered a job only if:

(a) the request for information is applicable to any applicant applying for the position for which the applicant is applying;

(b) the information is requested during the time in the employer's employment selection process when the employer:

(i) obtains a criminal background check;

(ii) obtains a credit history of an applicant for employment, subject to the requirements of the Fair Credit Reporting Act, 15 U.S.C. Sec. 1681 et seq.;

(iii) obtains a driving record of a driver from the Driver License Division in accordance with Section 53-3-104 or 53-3-420;

(iv) subject to Subsection (3), conducts a review of the internal records of the employer to determine whether:

(A) the applicant was previously employed by the employer; or

(B) the applicant previously applied for employment with the employer; or

(v) collects the information to provide it to a government entity for the purpose of:

(A) determining eligibility for a government service, benefit, or program that requires that the information is collected on or before the day on which an offer of employment is made; or

(B) participating in a government service, benefit, or program that requires that the information is collected on or before the day on which an offer of employment is made; and

(c) the applicant consents to the employer taking the action described in Subsection (2)(b).

(3) If the information listed in Subsection (1) is requested under Subsection (2)(b)(iv), the employer may only request that information listed in Subsection (1) that is necessary to conduct the review of the employer's internal records.

(4) An employer violates this section if pursuant to Subsection (2) the employer requests the information listed in Subsection (1), but fails to take the action described in Subsection (2)(b) for which the information is requested.

Amended by Chapter 2, 2009 Special Session 1

Section 34-46-202. Use of information collected in initial selection process.

(1) (a) An employer may not:

(i) use information about an applicant obtained through an initial selection process for a purpose other than to determine whether or not the employer will hire the applicant as an employee; or

(ii) except as provided in Subsection (2), provide information about an applicant obtained through an initial selection process to a person other than the employer.

(b) A use prohibited under this Subsection (1) includes:

(i) marketing;

(ii) profiling;

(iii) reselling of the information; or

(iv) a similar use.

(2) Notwithstanding the other provisions of this section, an employer may provide information:

(a) as required by law;

(b) to a government entity for the purpose of:

(i) determining eligibility for a government service, benefit, or program; or

(ii) participating in a government service, benefit, or program;

(c) if the applicant applies for another position with the employer; or

(d) if the applicant becomes an employee and the information is used for one or more of the following, that is also applied to other employees in a similar position:

(i) a performance review; or

(ii) a promotion application.

Amended by Chapter 2, 2009 Special Session 1

Section 34-46-203. Retention of information collected during an initial selection process.

(1) Subject to Subsection (2), with regard to information collected about an applicant obtained through an initial selection process, an employer shall:

(a) maintain a specific policy regarding the retention, disposition, access, and confidentiality of the information; and

(b) if an applicant requests to see the policy described in Subsection (1)(a), provide an opportunity for the applicant to review the policy before being required to provide information as part of the initial selection process.

(2) Except to the extent required by law, an employer may not retain the information described in Subsection (1) more than two years after the day on which the applicant provides the information to the employer, if the employer does not hire the applicant within that two-year period.

Enacted by Chapter 174, 2009 General Session

Section 34-46-301. Investigations -- Complaints -- Sanctions -- Rulemaking.

(1) The division may investigate an alleged violation of this chapter.

(2) (a) An individual claiming to be aggrieved by an action of an employer in violation of this chapter may file with the division a request for agency action.

(b) On receipt of a request for agency action under Subsection (2)(a), the division:

(i) shall conduct an adjudicative proceeding pursuant to Title 63G, Chapter 4, Administrative Procedures Act; and

(ii) may attempt to reach a settlement between the parties through a settlement conference.

(3) (a) If the division determines that a violation has occurred, the division may order that the employer:

(i) cease and desist the action;

(ii) pay a fine to the division of up to $500 for a violation, regardless of the number of applicant's affected by the violation; or

(iii) comply with a combination of Subsections (3)(a)(i) and (ii).

(b) Money received under this section shall be deposited as a dedicated credit to the division to pay for the costs of administering this chapter.

(4) The commission may make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding:

(a) the process to file a written complaint with the division; and

(b) the terms defined in Section 34-46-102.

Enacted by Chapter 174, 2009 General Session

Section 34-46-302. Inspection of records by division.

(1) A representative of the division may enter a place of employment during business hours to inspect a record as part of an investigation described in Section 34-46-301.

(2) An effort of an employer to obstruct the division in the performance of its duties under this section is a violation of this chapter and subject to sanctions under Section 34-46-301.

Enacted by Chapter 174, 2009 General Session

Section 34-38-1. Legislative findings -- Purpose and intent of chapter.

(1) The Legislature finds that a healthy and productive work force, safe working conditions free from the effects of drugs and alcohol, and maintenance of the quality of products produced and services rendered in this state, are important to employers, employees, and the general public. The Legislature further finds that the abuse of drugs and alcohol creates a variety of workplace problems, including increased injuries on the job, increased absenteeism, increased financial burden on health and benefit programs, increased workplace theft, decreased employee morale, decreased productivity, and a decline in the quality of products and services.

(2) The Legislature does not intend to prohibit an employee from seeking damages or job reinstatement, if action is taken by the employer on the basis of an inaccurate test result.

Amended by Chapter 284, 2010 General Session

Section 34-38-2. Definitions.

For purposes of this chapter:

(1) "Alcohol" means ethyl alcohol or ethanol.

(2) "Drugs" means a substance recognized as a drug in the United States Pharmacopoeia, the National Formulary, the Homeopathic Pharmacopoeia, or other drug compendia, or supplement to any of those compendia.

(3) (a) "Employer" means a person, including a public utility or transit district, that has one or more workers or operators employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written.

(b) "Employer" does not include the federal or state government, or other local political subdivisions.

(4) "Employee" means an individual in the service of an employer for compensation.

(5) "Failed test" means a confirmed drug or alcohol test that indicates that the sample tested is:

(a) positive;

(b) adulterated; or

(c) substituted.

(6) "Inaccurate test result" means a test result that is treated as a positive test result, when the sample should not have resulted in a positive test result.

(7) "Licensed physician" means an individual who is licensed:

(a) as a doctor of medicine under Title 58, Chapter 67, Utah Medical Practice Act, or similar law of another state; or

(b) as an osteopathic physician or surgeon under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, or similar law of another state.

(8) "Prospective employee" means an individual who applies to an employer, either in writing or orally, to become the employer's employee.

(9) "Sample" means urine, blood, breath, saliva, or hair.

Amended by Chapter 284, 2010 General Session

Section 34-38-3. Testing for drugs or alcohol.

(1) If an employer tests an employee or prospective employee for the presence of drugs or alcohol as a condition of hiring or continued employment, the employer is protected from liability as provided in this chapter if the employer complies with this chapter. However, employers and management in general shall submit to the testing themselves on a periodic basis.

(2) (a) An organization that operates a storage facility or transfer facility or that is engaged in the transportation of high-level nuclear waste or greater than class C radioactive waste within the exterior boundaries of the state shall establish a mandatory drug testing program regarding drugs and alcohol for prospective and existing employees as a condition of hiring any employee or the continued employment of any employee. As a part of the program, employers and management in general shall submit to the testing themselves on a periodic basis. The program shall implement testing standards and procedures established under Subsection (2)(b).

(b) The executive director of the Department of Environmental Quality, in consultation with the Labor Commission under Section 34A-1-103, shall by rule establish standards for timing of testing and dosage for impairment for the drug and alcohol testing program under this Subsection (2). The standards shall address the protection of the safety, health, and welfare of the public.

Amended by Chapter 284, 2010 General Session

Section 34-38-4. Samples -- Identification and collection.

In order to test reliably for the presence of drugs or alcohol, an employer may require samples from his employees and prospective employees, and may require presentation of reliable identification to the person collecting the samples. Collection of the sample shall be in conformance with the requirements of Section 34-38-6. The employer may designate the type of sample to be used for testing.

Enacted by Chapter 234, 1987 General Session

Section 34-38-5. Time of testing -- Cost of testing and transportation.

(1) Any drug or alcohol testing by an employer shall occur during or immediately after the regular work period of current employees and shall be deemed work time for purposes of compensation and benefits for current employees.

(2) An employer shall pay all costs of testing for drugs or alcohol required by the employer, including the cost of transportation if the testing of a current employee is conducted at a place other than the workplace.

Enacted by Chapter 234, 1987 General Session

Section 34-38-6. Requirements for collection and testing.

(1) The collection and testing of a sample for drugs and alcohol under this chapter shall be performed in accordance with this chapter.

(2) The collection of a sample shall be performed under reasonable and sanitary conditions.

(3) A sample shall be collected and tested:

(a) with due regard to the privacy of the individual being tested; and

(b) in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of a reliable sample.

(4) The sample collection shall be documented. The documentation procedures required by this Subsection (4) include:

(a) labeling of a sample so as reasonably to preclude the probability of erroneous identification of test results; and

(b) an opportunity for the employee or prospective employee to provide notification of any information that the employee or prospective employee considers relevant to the test, including:

(i) identification of currently or recently used prescription or nonprescription drugs; or

(ii) other relevant medical information.

(5) Sample collection, storage, and transportation to the place of testing shall be performed so as reasonably to preclude the probability of sample contamination or adulteration.

(6) (a) Testing of a sample shall conform to scientifically accepted analytical methods and procedures.

(b) Before a test of a sample may be considered a failed test and used as a basis for an action by an employer under Section 34-38-8, testing of the sample shall include a confirmation test:

(i) by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method; and

(ii) if the sample used for a test is a urine sample, by a laboratory that is certified by the United States Department of Health and Human Services under the National Laboratory Certification Program.

Amended by Chapter 284, 2010 General Session

Section 34-38-7. Employer's written testing policy -- Purposes and requirements for collection and testing -- Employer's use of test results.

(1) Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy which has been distributed to employees and is available for review by prospective employees.

(2) Within the terms of his written policy, an employer may require the collection and testing of samples for the following purposes:

(a) investigation of possible individual employee impairment;

(b) investigation of accidents in the workplace or incidents of workplace theft;

(c) maintenance of safety for employees or the general public; or

(d) maintenance of productivity, quality of products or services, or security of property or information.

3) The collection and testing of samples shall be conducted in accordance with Sections 34-38-4, 34-38-5, and 34-38-6, and need not be limited to circumstances where there are indications of individual, job-related impairment of an employee or prospective employee.

(4) The employer's use and disposition of all drug or alcohol test results are subject to the limitations of Sections 34-38-8 and 34-38-13.

Enacted by Chapter 234, 1987 General Session

Section 34-38-8. Employer's disciplinary or rehabilitative actions.

(1) An employer may take an action described in Subsection (2) if:

(a) the employer receives a test result that:

(i) indicates a failed test;

(ii) is confirmed as required by Subsection 34-38-6(6); and

(iii) indicates a violation of the employer's written policy; or

(b) an employee or prospective employee refuses to provide a sample.

(2) An employer may use a test result or a refusal described in Subsection (1) as the basis for disciplinary or rehabilitative actions, which may include the following:

(a) a requirement that the employee enroll in an employer-approved rehabilitation, treatment, or counseling program, which may include additional drug or alcohol testing, as a condition of continued employment;

(b) suspension of the employee with or without pay for a period of time;

(c) termination of employment;

(d) refusal to hire a prospective employee; or

(e) other disciplinary measures in conformance with the employer's usual procedures, including a collective bargaining agreement.

Amended by Chapter 284, 2010 General Session

Section 34-38-9. No cause of action for failure to test or detect substance or problem, or for termination of testing program.

No cause of action arises in favor of any person against an employer who has established a policy and initiated a testing program in accordance with this chapter, for any of the following:

(1) failure to test for drugs or alcohol, or failure to test for a specific drug or other substance;

(2) failure to test for, or if tested for, failure to detect, any specific drug or other substance, disease, infectious agent, virus, or other physical abnormality, problem, or defect of any kind; or

(3) termination or suspension of any drug or alcohol testing program or policy.

Enacted by Chapter 234, 1987 General Session

Section 34-38-10. A cause of action does not arise against employer unless inaccurate test result -- Presumption and limitation of damages in claim against employer.

(1) A cause of action may not arise in favor of a person against an employer who establishes a program of drug or alcohol testing in accordance with this chapter, and who takes an action under Section 34-38-8, unless the employer takes the action on the basis of an inaccurate test result.

(2) If a person bringing a claim, including a claim under Section 34-38-11, alleges that an employer's action is based on an inaccurate test result:

(a) there is a rebuttable presumption that the test result is valid if the employer complies with Section 34-38-6; and

(b) the employer is not liable for monetary damages if the employer's reliance on an inaccurate test result is reasonable and in good faith.

(3) (a) There is a rebuttable presumption that the employer complies with Section 34-38-6 if as part of the employer's drug and alcohol testing program a licensed physician who is trained in the interpretation of drug and alcohol test results:

(i) provides medical assessment of a result that indicates a failed test;

(ii) requests re-analysis of a test result if necessary; and

(iii) makes a determination whether or not alcohol or other drug use has occurred.

(b) A court may find that an employer complies with Section 34-38-6 notwithstanding that the employer's drug and alcohol testing program does not include an action described in Subsection (3)(a).

Amended by Chapter 284, 2010 General Session

Section 34-38-11. Bases for cause of action for defamation, libel, slander, or damage to reputation.

No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with this chapter, unless:

(1) the results of that test were disclosed to any person other than the employer, an authorized employee or agent of the employer, the tested employee, or the tested prospective employee;

(2) the information disclosed is based on an inaccurate test result;

(3) an inaccurate test result is disclosed with malice; and

(4) all elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or common law, are satisfied.

Amended by Chapter 284, 2010 General Session

Section 34-38-12. No cause of action for failure of employer to establish testing program.

No cause of action arises in favor of any person based upon the failure of an employer to establish a program or policy of drug or alcohol testing.

Enacted by Chapter 234, 1987 General Session

Section 34-38-13. Confidentiality of test-related information.

(1) For purposes of this section, "test-related information" means the following received by the employer through the employer's drug or alcohol testing program:

(a) information;

(b) interviews;

(c) reports;

(d) statements;

(e) memoranda; or

(f) test results.

(2) Except as provided in Subsections (3) and (6), test-related information is a confidential communication and may not be:

(a) used or received in evidence;

(b) obtained in discovery; or

(c) disclosed in any public or private proceeding.

(3) Test-related information:

(a) shall be disclosed to the Division of Occupational and Professional Licensing:

(i) in the manner provided in Subsection 58-13-5(3); and

(ii) only to the extent required under Subsection 58-13-5(3); and

(b) may only be used in a proceeding related to:

(i) an action taken by the Division of Occupational and Professional Licensing under Section 58-1-401 when the Division of Occupational and Professional Licensing is taking action in whole or in part on the basis of test-related information disclosed under Subsection (3)(a);

(ii) an action taken by an employer under Section 34-38-8; or

(iii) an action under Section 34-38-11.

(4) Test-related information shall be the property of the employer.

(5) An employer is entitled to use a drug or alcohol test result as a basis for action under Section 34-38-8.

(6) An employer may not be examined as a witness with regard to test-related information, except:

(a) in a proceeding related to an action taken by the employer under Section 34-38-8;

(b) in an action under Section 34-38-11; or

(c) in an action described in Subsection (3)(b)(i).

Amended by Chapter 152, 2004 General Session

Section 34-38-14. Employee not "disabled."

An employee or prospective employee whose drug or alcohol test result is confirmed as positive in accordance with this chapter may not, because of those results alone, be defined as a person with a "disability" for purposes of Title 34A, Chapter 5, Utah Antidiscrimination Act.

Amended by Chapter 284, 2010 General Session

Section 34-38-15. No physician-patient relationship created.

A physician-patient relationship is not created between an employee or prospective employee, and the employer or any person performing the test, solely by the establishment of a drug or alcohol testing program in the workplace.

Enacted by Chapter 234, 1987 General Session