Are you an Arizona employer considering disciplining or firing an employee?  You may want to rethink that decision if that employee took, requested, or even mentioned paid sick time in the last 90 days.Firing Employee

You likely know that Prop 206’s new paid sick time requirements went into effect on July 1, mandating all private sector employers to provide employees 1 hour of paid sick time for every 30 hours worked.  Employees may accrue paid sick time until they reach a cap of either 24 or 40 hours per year, depending on the size of the employer.  What you may not know is that the new rules have a drastic retaliation provision that will have a large impact on Arizona’s “at will” policy.

Under the “at will” policy, employers can terminate employees for almost any reason, except certain prohibited reasons by law (such as discrimination based on age, national origin, sex or retaliation for reporting sexual harassment, etc.). See A.R.S. §23-1501.  While employers may not terminate an employee in retaliation for asserting his or her protected rights under the “at will” policy, employers may defend their decisions by providing relatively thorough documentation that the employee was fired for a valid reason, not unlawful discrimination or retaliation.  For example, if the employer can show that the employee was terminated for poor performance and not because of his race, then the employer will not be liable for retaliation.

However, the landscape of retaliation for all Arizona employers changed dramatically with the arrival of Prop 206.  Prop 206 creates a presumption of retaliation for any adverse employment action against an employee within 90 days of the employee asserting his or her paid sick time rights.  See A.R.S. §23-364(B).  An employee “asserts his or her rights” by requesting paid sick time, taking paid sick time, complaining to the department of labor for violations of Prop 206, participating in an investigation by the labor department pursuant to Prop 206, and even inquiring about the new minimum wage or paid sick time, among other things.  In short, any mention of Prop 206 triggers this retaliation provision.  Moreover, Prop 206 provides that the employer can only overcome this presumption of retaliation by “clear and convincing evidence.”  This is a very high burden that is rarely found in similar retaliation provisions.

From a practical standpoint, the retaliation provision makes it much more difficult for an employer to discipline or terminate an employee without the prospect of a retaliation claim.  For example, consider an employee who is decreasingly productive and increasingly tardy.  The employer decides to terminate that employee for valid reasons, but just two months prior, that employee requested paid sick time off to go to the doctor.  While the employer had no retaliatory intentions, the law presumes otherwise.  The employer must have thorough documentation of that employee’s poor track record if it wants to overcome the presumption of retaliatory intent.

What should employers do to ensure they are not liable for retaliation when disciplining or firing employees?  First, the employer will need to verify if that employee has requested or taken paid sick time within the last 90 days.  If so, the employer must be very careful to have thorough documentation of the employee’s poor track record or valid reasons for disciplining or firing the employee.  The employer could also simply wait until those 90 days have run.  If the employer can demonstrate by “clear and convincing” evidence that they had a valid, legal reason for disciplining or terminating the employee, it will overcome the presumption of retaliation.

If you have questions about Prop 206, the attorneys at Davis Miles would be happy to speak to you about how the new rules affect your business.  Please call legal assistant Melanie Shaha at (480) 344-0965 to schedule a strategy session with attorneys Scott Gibson or Emma Chalverus.

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