9.3 Utah Antidiscrimination Act, New Hire Reporting, Prevailing Wages & Payroll Records

Utah Antidiscrimination Act, Prevailing Wages & Payroll Records

Quick Reference: Employment practices in Utah construction are governed by interlocking federal and state statutory frameworks. The Utah Antidiscrimination Act (Utah Code Ann. Title 34A, Chapter 5) protects workers against employment discrimination across employers with 15 or more employees, covering protected classes including pregnancy, sexual orientation, and gender identity alongside traditional Title VII categories. Pre-employment inquiries must strictly evaluate bona fide occupational qualifications. Federal law mandates that Form I-9 Employment Eligibility Verification be completed within 3 business days of hire and retained for 3 years from hire date or 1 year following termination, whichever is later. On federally funded projects exceeding $2,000, general contractors must comply with the Davis-Bacon Act, submitting weekly certified payrolls (Form WH-347). Under the Utah Payment of Wages Act (Utah Code Ann. § 34-28-5), an involuntarily terminated employee must be paid all earned wages within 24 hours, with severe statutory continuation penalties for failure to pay.

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1. Equal Employment Opportunity & The Utah Antidiscrimination Act

General contractors must navigate federal and state employment protections to avoid civil litigation, EEOC administrative charges, and state sanctions.

┌────────────────────────────────────────────────────────────────────────┐
│                     STATUTORY ANTIDISCRIMINATION LAWS                  │
├──────────────────────────┬──────────────┬──────────────────────────────┤
│ Governing Statute        │ Employer Size│ Protected Class Coverage     │
├──────────────────────────┼──────────────┼──────────────────────────────┤
│ Title VII of the Civil   │ 15 or more   │ Race, color, religion, sex,  │
│ Rights Act of 1964       │ employees    │ national origin              │
├──────────────────────────┼──────────────┼──────────────────────────────┤
│ Americans with           │ 15 or more   │ Qualified individuals with   │
│ Disabilities Act (ADA)   │ employees    │ physical/mental disabilities │
├──────────────────────────┼──────────────┼──────────────────────────────┤
│ Age Discrimination in    │ 20 or more   │ Individuals aged 40 and older│
│ Employment Act (ADEA)    │ employees    │                              │
├──────────────────────────┼──────────────┼──────────────────────────────┤
│ Utah Antidiscrimination  │ 15 or more   │ Race, color, sex, pregnancy/ │
│ Act (Utah Code Title 34A,│ employees    │ childbirth, religion, age,   │
│ Chapter 5)               │              │ national origin, disability, │
│                          │              │ sexual orientation, gender ID│
└──────────────────────────┴──────────────┴──────────────────────────────┘

The Utah Antidiscrimination and Labor Division (UALD)

The Utah Antidiscrimination Act is administered by the Utah Antidiscrimination and Labor Division (UALD) within the Utah Labor Commission. Utah's statute mirrors federal protections while adding explicit statutory protections for pregnancy, childbirth, pregnancy-related medical conditions, sexual orientation, and gender identity.

• Dual Filing: Because the UALD operates under a work-sharing agreement with the federal Equal Employment Opportunity Commission (EEOC), a charge filed with the UALD is automatically cross-filed with the EEOC, protecting the claimant's rights under both state and federal law.
• Statute of Limitations: An aggrieved worker must file a formal complaint with the UALD within 180 calendar days of the alleged discriminatory act (compared to 300 days under federal EEOC filing procedures).
• Reasonable Accommodation: Employers must provide reasonable accommodations for qualified individuals with known disabilities and pregnant workers (such as temporary light-duty assignments, modified lifting restrictions, or ergonomic seating), unless the accommodation poses an undue hardship (significant difficulty or expense) on the employer's business operations.

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2. Lawful vs. Unlawful Pre-Employment Inquiries

During candidate recruitment and interviewing, questions must focus exclusively on the applicant's ability to perform the essential functions of the trade with or without reasonable accommodation. Inquiries that directly or indirectly elicit protected personal characteristics violate state and federal law.

┌────────────────────────────────────────────────────────────────────────┐
│                     INTERVIEW INQUIRY COMPLIANCE MATRIX                │
├──────────────────────────┬─────────────────────────────────────────────┤
│ Permissible Inquiries    │ Impermissible / Unlawful Inquiries          │
├──────────────────────────┼─────────────────────────────────────────────┤
│ • "Are you legally       │ • "Are you a U.S. citizen? Where were you   │
│   authorized to work in  │   or your parents born?"                    │
│   the United States?"    │                                             │
├──────────────────────────┼─────────────────────────────────────────────┤
│ • "Are you at least 18   │ • "What is your date of birth? What year    │
│   years old?"            │   did you graduate high school?"            │
├──────────────────────────┼─────────────────────────────────────────────┤
│ • "Can you meet the work │ • "What religious holidays do you celebrate?│
│   schedule and attendance│   Do you go to church on Sundays?"          │
│   requirements?"         │                                             │
├──────────────────────────┼─────────────────────────────────────────────┤
│ • "Are you able to lift  │ • "Do you have any medical conditions, back │
│   50 lbs and climb ladder│   injuries, or past workers' comp claims?"  │
│   scaffolds safely?"     │                                             │
├──────────────────────────┼─────────────────────────────────────────────┤
│ • "Do you have children, plans for pregnancy, or need childcare?" (NO!)│
│   (Lawful: "Can you travel or work overtime when required?")           │
├──────────────────────────┼─────────────────────────────────────────────┤
│ • "Have you been         │ • "Have you ever been arrested?"            │
│   convicted of a felony?"│   (Arrests do not equal guilt; inquiries    │
│   (Only if job-related)  │   must focus on job-related convictions)    │
└──────────────────────────┴─────────────────────────────────────────────┘

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3. Form I-9 Employment Eligibility Verification

Under the Immigration Reform and Control Act (IRCA), administered by U.S. Citizenship and Immigration Services (USCIS), all employers must verify the identity and employment authorization of every newly hired individual using Form I-9.

┌────────────────────────────────────────────────────────────────────────┐
│                     FORM I-9 STATUTORY TIMELINES                       │
├───────────────────────────────────┬────────────────────────────────────┤
│ Section 1: Employee Information   │ Must be completed by employee      │
│ and Attestation                   │ NO LATER than first day of work    │
├───────────────────────────────────┼────────────────────────────────────┤
│ Section 2: Employer Review and    │ Employer must physically inspect   │
│ Verification of Original Documents│ documents within 3 BUSINESS DAYS   │
├───────────────────────────────────┼────────────────────────────────────┤
│ Statutory Retention Period        │ 3 YEARS from hire date OR          │
│                                   │ 1 YEAR after termination date      │
│                                   │ (WHICHEVER IS LATER)               │
└───────────────────────────────────┴────────────────────────────────────┘

Acceptable Documents Architecture

Employees must present either one document from List A OR a combination of one document from List B and one document from List C:

• List A (Establishes BOTH Identity and Employment Authorization):
  • U.S. Passport or U.S. Passport Card
  • Permanent Resident Card (Form I-551, "Green Card")
  • Foreign passport containing temporary I-551 stamp
  • Employment Authorization Document with photo (Form I-766)
• List B (Establishes Identity ONLY):
  • State-issued driver's license or ID card with photograph
  • Federal, state, or local government ID card with photograph
  • School ID card with photograph (for minors)
  • U.S. Military card or draft record
• List C (Establishes Employment Authorization ONLY):
  • Unrestricted Social Security card (cannot have restrictions like "Not Valid for Employment")
  • Certified copy of birth certificate issued by state, county, or municipal authority
  • Consular Report of Birth Abroad (Form FS-240)
  • Employment authorization document issued by DHS

Document Abuse & Anti-Discrimination Prohibition

Employers are strictly prohibited from dictating which documents an employee must present. As long as the documents appear genuine on their face and relate to the employee, the employer must accept any valid document(s) from List A, or List B plus List C. Demanding specific documents (such as requiring a green card or birth certificate) constitutes an unlawful immigration-related unfair employment practice.

Retention Calculation Examples

• Example 1: An employee is hired on March 1, 2023, and is terminated on June 1, 2023 (employed 3 months).
  • 3 years from date of hire = March 1, 2026
  • 1 year from date of termination = June 1, 2024
  • Whichever is later = March 1, 2026.
• Example 2: An employee is hired on January 15, 2018, and is terminated on November 30, 2025 (employed nearly 8 years).
  • 3 years from date of hire = January 15, 2021
  • 1 year from date of termination = November 30, 2026
  • Whichever is later = November 30, 2026.

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4. Utah Centralized New Hire Reporting (Utah Code Title 35A, Chapter 7)

The Centralized New Hire Registry Act is one of the six statutes Prov loads into the in-exam online reference library, which is a strong signal that it is directly tested. It is also the single Utah payroll obligation contractors most often miss, because unlike withholding or unemployment registration there is no quarterly return to remind them.

Who Must Report, and What

Under Utah Code § 35A-7-104(1), an employer that hires or rehires an employee must send the Department of Workforce Services:

"Employer" is defined by reference to IRC § 3401(d) and expressly includes governmental entities and labor organizations (§ 35A-7-102(6)). "Employee" tracks IRC Chapter 24 (§ 35A-7-102(5)).

The Two Deadlines

┌──────────────────────────────────────────────────────────────────────┐
│              § 35A-7-104(2) — Reporting Deadlines                    │
├──────────────────────────────────────────────────────────────────────┤
│ Default:  not later than 20 DAYS after the date of hire or rehire    │
│ Optional: if the department approves, on a SEMIMONTHLY basis,        │
│           with the two transmissions not less than 12 nor more than  │
│           16 days apart                                              │
└──────────────────────────────────────────────────────────────────────┘

Two definitions control the clock:

• "Date of hire" is the date labor or services for compensation are first performed by the employee (§ 35A-7-102(3)) — not the offer date, not the acceptance date, not the first payroll date.
• "Date of rehire" applies when a returning worker has been separated from that employer for at least 60 consecutive days (§ 35A-7-102(4)). A framer laid off for the winter and brought back after 75 days is a rehire and must be reported again; a framer recalled after 30 days is not.

That 60-day rule matters constantly in construction, where crews cycle on and off with the weather and with project starts.

Civil Penalties for Late or False Reporting

Utah Code § 35A-7-106 sets two penalty tiers:

The department assesses the penalty under the Administrative Procedures Act and collects unpaid penalties the same way it collects other unemployment-insurance penalties.

The Multistate-Employer Exception

Under § 35A-7-104(4), a contractor is not required to report to Utah if all three of the following are true: the employer has employees in two or more states; the employer sends the required information to a state other than Utah; and the employer complies with the multistate-employer reporting requirement of § 453A of the Social Security Act, 42 U.S.C. § 653a. A Utah-only contractor cannot use this exception.

Why the State Wants the Data

The registry exists so that the Office of Recovery Services can locate and enforce child, medical, and spousal support obligations quickly. Within five business days of receiving a report the department enters it and runs an automated Social Security number comparison against ORS records; on a positive match ORS transmits a wage-withholding notice to the employer within two business days of the match being reported; and within three business days the data goes to the National Directory of New Hires (§ 35A-7-105). Registry records are private records under § 63G-2-202 and are kept at least six months (§ 35A-7-107).

Practical Sequence for a New Utah Crew Member: Form I-9 within 3 business days of the start date → Form W-4 and Utah withholding setup → new hire report to DWS within 20 days of the date labor is first performed → workers' compensation coverage confirmed before the worker sets foot on site.

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5. Prevailing Wages: Davis-Bacon and Related Acts (DBRA)

The Davis-Bacon Act (40 U.S.C. § 3141 et seq.) mandates the payment of local prevailing wages and fringe benefits on federally funded or federally assisted construction contracts exceeding $2,000 for the construction, alteration, or repair of public buildings or public works.

┌────────────────────────────────────────────────────────────────────────┐
│                      DAVIS-BACON COMPLIANCE MATRIX                     │
├───────────────────────────────────┬────────────────────────────────────┤
│ Compliance Element                │ Statutory Requirement              │
├───────────────────────────────────┼────────────────────────────────────┤
│ Contract Threshold                │ Federally funded/assisted > $2,000 │
├───────────────────────────────────┼────────────────────────────────────┤
│ Wage Determination Source         │ Published by USDOL on SAM.gov      │
├───────────────────────────────────┼────────────────────────────────────┤
│ Payroll Frequency                 │ Weekly certified payrolls required │
├───────────────────────────────────┼────────────────────────────────────┤
│ Certified Payroll Form            │ Form WH-347 with signed Statement  │
│                                   │ of Compliance                      │
├───────────────────────────────────┼────────────────────────────────────┤
│ Fringe Benefit Options            │ 1. Paid in cash directly to worker │
│                                   │ 2. Paid into bona fide trust plan  │
│                                   │ 3. Combination of cash and plans   │
└───────────────────────────────────┴────────────────────────────────────┘

Utah Prevailing Wage Context

Utah repealed its state prevailing wage statute (the state "Little Davis-Bacon Act") in 1981. Therefore, purely state- or municipal-funded projects in Utah do not have state prevailing wage requirements. However, whenever a project involves federal funding—such as federal highway projects (FHWA), military facilities (Hill Air Force Base), Veterans Affairs (VA) hospitals, federal courthouses, or Department of Housing and Urban Development (HUD) developments—the federal Davis-Bacon Act applies in full force.

Certified Payrolls & Form WH-347

General contractors and all covered subcontractors on Davis-Bacon projects must submit weekly Certified Payroll Records using USDOL Form WH-347 (or its electronic equivalent):

• Must report each laborer and mechanic by name, trade classification, hourly rate, hours worked daily and weekly, gross earnings, itemized deductions, and net pay.
• Must include a signed Statement of Compliance executed by the contractor under penalty of perjury, certifying that payrolls are complete, correct, and that wages paid meet or exceed applicable wage determinations.
• The Copeland "Anti-Kickback" Act (18 U.S.C. § 874): Strictly prohibits inducing an employee to give up any part of their compensation through force, intimidation, or threat of dismissal. Violations carry federal criminal felony penalties.

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6. Utah Payroll Recordkeeping & Wage Payment Statutes

The Utah Payment of Wages Act (Utah Code Ann. Title 34, Chapter 28) sets operational rules for wage payments, paystubs, and recordkeeping.

Pay Frequency (Utah Code § 34-28-3)

• Employers must pay wages on regular, established paydays occurring at least semimonthly or biweekly.
• Wages earned during the first 15 days of a calendar month must be paid on or before the 25th day of that month; wages earned between the 16th and last day of a month must be paid on or before the 10th day of the succeeding month.
• Payment must be made within 10 calendar days following the close of the designated pay period.
• Monthly pay schedules are permitted only for bona fide exempt executive, administrative, or professional personnel.

Itemized Paystubs / Wage Statements (Utah Code § 34-28-3(5))

On each regular payday, the employer must furnish every employee with an itemized written or electronic pay statement detailing:

1. Employee name;
2. Total hours worked (for non-exempt hourly employees);
3. Hourly rate of pay;
4. Gross wages earned;
5. Itemized list of all deductions (taxes, insurance, court garnishments);
6. Net pay; and
7. Applicable pay period beginning and ending dates.

Payroll Record Retention

Under both the FLSA (29 C.F.R. § 516.5) and Utah law, employers must retain all basic payroll records, collective bargaining agreements, work schedules, wage rate tables, and shipping/billing records for at least three (3) years. Supplementary records, such as daily time cards, piece-work tickets, and wage-rate computation tables, must be preserved for at least two (2) years.

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7. Final Paycheck Timing Upon Separation (Utah Code § 34-28-5)

Utah enforces one of the most stringent final paycheck rules in the nation, drawing a strict distinction between involuntary discharge and voluntary resignation.

┌────────────────────────────────────────────────────────────────────────┐
│                     UTAH FINAL PAYCHECK MANDATES                       │
├─────────────────────────────┬──────────────────────────────────────────┤
│ Separation Type             │ Statutory Final Paycheck Deadline        │
├─────────────────────────────┼──────────────────────────────────────────┤
│ Involuntary Termination     │ ALL earned and unpaid wages are due and  │
│ (Discharged, fired, laid off│ payable WITHIN 24 HOURS of separation.   │
│ by employer)                │ (Utah Code Ann. § 34-28-5(1))            │
├─────────────────────────────┼──────────────────────────────────────────┤
│ Voluntary Resignation       │ Wages are due and payable on the         │
│ (Employee quits or resigns) │ NEXT REGULAR PAYDAY.                     │
│                             │ (Utah Code Ann. § 34-28-5(2))            │
└─────────────────────────────┴──────────────────────────────────────────┘

The 24-Hour Rule for Involuntary Discharges

Under Utah Code Ann. § 34-28-5(1), whenever an employer separates an employee from payroll (whether through a formal firing for cause, a jobsite reduction-in-force, or a seasonal layoff):

• The unpaid wages of the employee become due immediately and must be paid within 24 hours of the time of separation.
• Payment may be delivered at the jobsite, mailed (postmarked within 24 hours), or transmitted via direct deposit if previously authorized.
• If the employer's accounting offices are closed on weekends or holidays, payment must be made on the next regular business day.

The Statutory Continuation Penalty (Utah Code § 34-28-5(1)(c))

The continuation penalty lives in § 34-28-5(1)(c), not in the 24-hour rule itself, and it has a trigger the 24-hour rule does not: a written demand. If the employer fails to pay within 24 hours of written demand, the employee's wages continue at the same rate the employee received at separation, running from the date of demand until paid, but in no event more than 60 days. Two limits decide most exam questions on this point: an employee who never made a written demand is not entitled to any penalty under § 34-28-5(1)(c)(iii), and the civil action to recover the accrued penalty must be commenced within 60 days from the date of separation under § 34-28-5(1)(c)(ii). The penalty is assessed in addition to all actual earned back wages. (Subsection (1)(b) is a different rule — it is the safe harbor letting the employer satisfy the 24-hour deadline by mailing the check postmarked no more than one day after separation, by initiating direct deposit, or by hand delivery.)

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8. Realistic Exam Scenario Analyses

Scenario 1: Davis-Bacon Certified Payroll & Fringe Credit Audit

• Case: A general contractor wins a $4.5 million federal military construction project at Hill Air Force Base in Davis County, Utah. The USDOL prevailing wage determination for commercial carpenters on the project is $32.00 basic hourly rate + $14.00 fringe benefit rate (total wage package: $46.00/hour). The GC pays its carpenters $32.00 per hour in cash, contributes $6.00 per hour toward bona fide company health and 401(k) plans, and deducts $8.00 per hour for "company equipment usage and safety gear costs." The GC submits weekly Form WH-347 certified payrolls reflecting $46.00 in total hourly compensation. A USDOL Wage and Hour investigator audits the certified payrolls.
• Analysis: The contractor committed a willful Davis-Bacon violation. While the employer may satisfy fringe benefit obligations through cash, bona fide benefit contributions, or a combination, deducting $8.00 per hour for equipment and safety gear violates both the Davis-Bacon Act and the Copeland Anti-Kickback Act. Equipment and required PPE are the employer's operational overhead and cannot be credited against prevailing fringe requirements or deducted from wages. The GC actually provided only $38.00/hour ($32.00 base + $6.00 bona fide fringes), resulting in an underpayment of $8.00 per hour for every hour worked by every carpenter. The GC faces back-wage assessments, civil penalties, potential contract debarment for up to 3 years from all federal public works, and criminal referral under the Copeland Act.

Scenario 2: The Fired Framer's Final Paycheck Penalty

• Case: On Friday at 3:00 PM, a general contractor summarily fires a framing carpenter on a Salt Lake City jobsite for insubordination. The carpenter is owed $1,600.00 for 64 hours of straight-time work. The job superintendent tells the carpenter, "You will get your final paycheck next Friday on our regular company payday." On Monday morning, the carpenter delivers a formal written demand letter to the GC's main office requesting immediate payment under Utah Code § 34-28-5. The GC ignores the letter and mails the final $1,600.00 check on the following Friday (12 days after separation). The carpenter files a statutory wage claim with the Utah Labor Commission.
• Analysis: Under Utah Code Ann. § 34-28-5(1), an employee who is discharged or fired must be paid all earned wages within 24 hours. The contractor's policy of waiting until the next regular payday violates Utah statutory law. Because the carpenter submitted a written demand and the contractor failed to tender payment within 24 hours, the contractor is liable for statutory continuation penalties. The carpenter's daily wage was $200.00 ($1,600 / 8 days). The penalty accrues for each calendar day of delay between the lapse of the 24-hour window and actual tender of payment. The contractor must pay the $1,600.00 back wages plus statutory continuation penalties totaling hundreds of dollars in penalty compensation.