Lawmakers push to make it harder for workers to claim retaliation

PHOENIX -- State lawmakers are moving to make it harder for workers to claim retaliation if they are fired in the wake of claiming they were denied wages or legally entitled time off.

On a 35-25 party-line vote, the Republican-controlled House of Representatives decided Wednesday to ask voters to eliminate a provision in the voter-approved law which spells out that if an employer takes action against a worker within 90 days of a complaint, it is presumed that the action is illegal retaliation. That can be overcome only if a company provides “clear and convincing evidence’’ that the action against the worker “was taken for other permissible reasons.’’

HCR 2026 is being pushed by House Speaker J.D. Mesnard.

The Chandler Republican opposed Proposition 206, approved in 2016, which will boost the state’s minimum wage to $12 an hour by 2020. That same measure also guarantees that workers get at least three days of paid leave.

It was approved by a margin of 58-42 percent.

Mesnard said he’s not trying to repeal the protections for workers in the initiative. He pointed out that his change, which would have to go to voters, retains the provision which bars discrimination or retaliation against any worker for asserting a claim that they are being denied the wages or time off to which the law entitles them. But Mesnard said that the law, as worded, means that the employer goes into a hearing “with guilt presumed that they must overcome’’ by presenting evidence to the contrary.

“I don’t consider that fair at all,’’ Mesnard said. “That’s giving everything to the employee and very little to the employer because ‘clear and convincing’ is a relatively high standard that they must overcome.’’

Rep. Reginald Bolding, D-Laveen, said he doesn’t see anything wrong with that, given that workers lack the same power and resources as employers.

“Why would it not be OK to do everything we can to protect employees and ensure that employers show that they did not retaliate against employees?’’ he asked. “We need to be the last line of defense for workers in the state.’’

Mesnard said workers are still protected.

What would be different if this is approved, he said, is both sides would go before a judge or hearing officer, each one presenting evidence. At that point, Mesnard said, “the stronger case wins,’’ versus the employer having the entire burden of proving the firing or disciplinary action was not retaliation.

Rep. Regina Cobb, R-Kingman, who runs a dental practice, said she has seen the effects of the law as it now works. Cobb told colleagues she has had employees who have multiple discipline problems, like showing up late or not at all.

“And yet, there’s no recourse,’’ she said.

Mesnard’s proposal now goes to the Senate. If it is approved there it would go on the November ballot, as the Arizona Constitution bars the Legislature from repealing anything that voters have enacted.

His measure is not as far reaching as a proposal by Sen. Sylvia Allen, R-Snowflake, to freeze the minimum wage where it is now at $10.50 an hour, scrapping the future increases set to take effect between now and 2020. And it would rescind entirely the mandate for paid time off.

SCR 1016 was approved earlier this month by the Senate Committee on Commerce and Public Safety and awaits the vote of the full Senate. And, like Mesnard’s proposal, it, too, is subject to voter approval in November.


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