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Howick v. Salt Lake City Corporation, 2013 UT App 218, 310 P.3d 1220 (September 6, 2013) 

Sep 6, 2013

The Utah Court of Appeals held that a City employee can contract away the right to be treated as a merit employee. Howick, 2013 UT App 218, ¶ 46. Howick was hired by the City as a lawyer in 1992. Id. ¶ 2. In 1998, the City created a new position in response to some lawyers’ dissatisfaction with salaries. Id. The new position came with a significant salary increase, but applicants were required to sign a disclaimer stating their employment was at-will even though under Utah Code section 10-3-1105 they would otherwise have been merit employees. Id. After her termination, Howick argued that she continued to be a merit employee under section 10-3-1105 and that permitting cities to contract around that statute’s merit protection violated public policy. Id. ¶ 30. Using the analysis in Ockey v. Lehmer, 2008 UT 37, 189 P.3d 51, the court concluded that public policy did not prevent such a waiver. Id. ¶ ¶ 34 – 43. Addressing the two Ockey factors, the court stated: (1) the statute contains no “express anti-waiver provision,” and (2) although the 2012 amendment to section 10-3-1105, which allows employees to waive merit protection in writing, could not be applied retroactively it could be considered “as a reflection of current legislative views on public policy.” Id. ¶ ¶ 35, 42.