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What are the requirements relating to advertising open positions?
Unless based on a bona fide occupational qualification, or required by and given to an agency of government for a security reason, an employer, employment agency, or labor organization may not do the following if the statement, advertisement, publication, form, or inquiry limits, specifies or discriminates on the basis of race, color, religion, sex, pregnancy, childbirth, pregnancy-related conditions, national origin, age, disability, sexual orientation, or gender identity:
- print, circulate, or cause to be printed or circulated a statement, advertisement, or publication;
- use a form of application for employment or membership; or
- make any inquiry in connection with prospective employment or membership.
If a private sector employer creates a voluntary veterans employment preference policy, it must be publicly posted at the place of employment or online if the employer has a website or uses the Internet to advertise employment opportunities (Utah Code §34-50-103).
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Utah law does not restrict an employer’s use of criminal history records for both arrests and convictions (Utah Code §53-10-108).
(b) Medical history
Utah employers cannot, in connection with hiring, promotion, retention, or other related decisions, access or otherwise take into consideration private genetic information about an individual. An employer may seek an order compelling the disclosure of private genetic information in connection with an employment-related judicial or administrative proceeding in which the individual has placed his or her health at issue, or an employment-related decision in which the employer has a reasonable basis to believe that the individual’s health condition poses a real and unjustifiable safety risk requiring the change or denial of an assignment (Utah Code §34A-11-102; 26-45-103).
It is unlawful for an employer to charge an applicant or employee a medical fee for a physical examination. If an employer conditions employment on a physical examination, the employer must pay all examination costs (Utah Code §34-33-1).
(c) Drug screening
Utah law protects employers from liability related to testing for drugs and alcohol if the employer complies with the Utah Code Chapter on Drug and Alcohol Testing (Utah Code § 34-38-3). Employers may test employees or prospective employees as a condition of hiring or continued employment. However, employers and management must submit to the testing on a periodic basis.
Testing must be carried out pursuant to the employer’s written testing policy, which must be distributed to employees and made available for review by prospective employees. Permissible reasons for testing include:
- investigation of possible individual employee impairment;
- investigation of workplace accidents or incidents of workplace theft;
- maintenance of safety for employees or the general public; or
- maintenance of productivity, quality of products or services, or security of property or information (Utah Code §34-38-7).
Testing must occur during or immediately after the regular work period for current employees and will be deemed work time for pay and benefits purposes. The employer must pay all costs of testing, including the cost of transportation if testing is conducted at a place other than the workplace (Utah Code §34-38-5).
An employer can take adverse action against an applicant or employee if the employee or applicant refuses to provide a sample, or produces a failed test that is confirmed and indicates a violation of the employer’s written policy (Utah Code §34-38-8).
(d) Credit checks
Utah has no law restricting how employers can use credit reports.
(e) Immigration status
Utah requires employers with 15 or more employees to verify the employment eligibility of employees through E-Verify or another status verification system.
(f) Social media
Utah’s Internet Employment Privacy Act (Utah Code §34-48-101 et seq.) prohibits employers, with limited exceptions, from requesting an employee or an applicant for employment to disclose a username and password, or password that allows access to the individual’s personal online accounts. It also prohibits employers from taking adverse action, failing to hire, or otherwise penalizing an employee or applicant for failure to disclose usernames or passwords for personal online accounts.
Exceptions under which an employer may request or require usernames or passwords include:
- when access to an electronic device or account provided by the employer is required;
- when disciplining or discharging an employee for transferring the employer’s proprietary or confidential data to an employee’s personal online account without authorization; and
- when conducting an investigation based on specific information about activity on the employee’s personal online account that may violate applicable laws or policies against work-related misconduct, or about an unauthorized transfer of the employer’s proprietary information to an employee’s personal online account.
Employers are not restricted from viewing, accessing, or using publicly available information. Employers are not prohibited from complying with a duty to screen employees and applicants before hiring or monitoring and retaining employee communications under applicable law.
The law provides for a private right of action, but caps damages at $500.
Wage and hour
What are the main sources of wage and hour laws in your state?
Utah Code, Title 34 Labor, Chapter 28 Payment of Wages, as well as Rule R610 Labor Commission, Antidiscrimination and Labor, Labor, Utah Administrative Code.
What is the minimum hourly wage?
As of January 1 2016 Utah’s minimum wage is $7.25 per hour. Employees receiving tips of at least $30.00 per month may be paid a cash wage of $2.13 per hour, if the total of the cash wage and tips is at least $7.25 per hour. Minors (under 18 years) may be paid $4.25 per hour as a training wage for the first 90 days of employment.
What are the rules applicable to final pay and deductions from wages?
When an employee is terminated by the employer, all wages are due immediately and are payable within 24 hours of termination. The 24-hour requirement is met if the employer:
- mails the wages to the employee with a postmark dated no more than one day after the date of termination;
- hand delivers the wages to the employee; or
- initiates a direct deposit of the wages into the employee’s account within 24 hours of termination.
Failure to pay wages due within 24 hours of a written demand will result in the employee continuing to earn wages (at the same rate as when terminated) until paid, or for 60 days, whichever comes first.
When an employee quits or resigns employment and has no written contract for a definite period, all wages must be paid on the next regular payday.
Generally, deductions from wages are lawful when:
- the employer is required or authorized to do so by state or federal law (e.g., taxes, social security, etc.), or pursuant to a court order;
- the employee expressly authorizes the deduction in writing;
- the employer presents evidence that, in the opinion of a hearing officer or administrative law judge, would warrant an offset; and
- contributions under a benefits contract or plan established by the employer are required.
Pursuant to R.610-3-18, Utah Admin. Code, sums may also be deducted from wages as follows:
- For repayment to the employer of advances or loans, provided that:
- the advance or loan occurred while the employee was in the employ of the employer; and
- the employee's receipt of the advance or loan is evidenced by the employee's written acknowledgment.
- For amounts as a result of loss or damage occurring from the criminal conduct of the employee against the property of the employer, provided that:
- the employee has been adjudged guilty by a judicial proceeding of the specified crime committed against the employer’s property;
- the crime occurred during the employment relationship or out of the employment relationship;
- the employer’s property cannot or has not been reunited with the employer; or
- the employee willfully and through his or her own admission did in fact destroy company property. An offset against earned wages may be allowed at the hearing officer's discretion.
- For sums resulting from cash shortages, provided that:
- the employee gives written acknowledgment on beginning employment that he or she is responsible for shortages;
- at the beginning of his or her work period, the employee is checked in or verified on the register or with the cash amount by the employer in the employee's presence and gives written acknowledgment of the verification;
- at the end of the work period, the employee is checked out or verified on the register or with the cash amount by the employer in the employee's presence and gives written acknowledgment of the verification; and
- the employee is the sole and absolute user and has sole access to the register or cash amount from the time checked in under Sub-section 2 until the time checked out under Sub-section 3.
- For the purchase of goods, tools, equipment, or other items required for the employment of a person, provided that:
- the employee's purchase and receipt of the items is evidenced by a written acknowledgment;
- the employee has actual or constructive possession of the goods or items; and
- the employer repurchases the items from the employee at the employee's option on termination of employment at a fair and reasonable price.
- For payment for goods, tools, equipment, or other items furnished and assigned to the employee by the employer, provided that:
- the item was assigned during the employee’s employment;
- the employee gave written acknowledgment of receipt of the item; and
- the item was not returned to the employer on termination.
If a deduction from wages is made, the employer must, on each regular payday, furnish the employee with a statement showing the total amount of each deduction.
Hours and overtime
What are the requirements for meal and rest breaks?
Utah does not require that employers provide meal or rest breaks to adult employees. If an employer chooses to provide a meal period to employees aged 18 or older, it will not be considered paid time if the meal period is 30 minutes or longer and the employee is completely relieved from duty. If short rest breaks are provided, they are generally considered paid time.
Minors are entitled to a meal period of at least 30 minutes within the first five hours of their workday. The meal period must be paid if the minor is not relieved of all duties. Minors are also entitled to a 10-minute break during every four-hour period, with the break scheduled so that the minor is not required to work over three hours without such a break (Utah Admin. Code R.610-1-12; R610-2-3).
What are the maximum hour rules?
Employers can generally require employees to work any length of day and can discipline or terminate employees who do not perform duties or hours as assigned.
A minor under 16 is not to be employed or permitted to work during school hours, except as authorized by proper school authorities. In addition, a minor under 16 is not permitted to work:
- before or after school in excess of four hours a day;
- before 5:00a.m. or after 9:30p.m., unless the next day is not a school day;
- in excess of eight hours in any 24-hour period; or
- more than 40 hours in any week.
For overtime purposes, Utah does not require overtime for employees of private employers, except to the extent that it involves employment on public works, which requires pay at one-and-a-half times an employee’s regular rate of pay for any time worked over 40 hours in a week (Utah Code §34-30-8).
How should overtime be calculated?
Utah has no law governing overtime for employees of private employers, except to the extent that it involves employment on public works, which requires one-and-a-half times an employee’s regular rate of pay for any time worked over 40 hours in a week. Non-exempt employees must be paid one-and-a-half times of their regular rate of pay for any time worked over 40 hours in the employer’s seven-day workweek (Utah Code §34-30-8). Otherwise, employers must follow the federal Fair Labor Standards Act, as applicable.
What exemptions are there from overtime?
Utah has no state law governing overtime, so any overtime obligations and exemptions flow from federal law under the Fair Labor Standards Act.
What payroll and payment records must be maintained?
Employers must keep a true and accurate record of time worked and wages paid each pay period to each employee employed on an hourly or daily basis for at least one year after the entry of the record (Utah Code §34-28-10). Federal payroll record keeping requirements exist under the Fair Labor Standards Act.