As we warned in January, federal bureaucrats see the final year of the Obama administration as possibly their last best chance to check off the bucket list for amassing total government power over business. Last month we saw more evidence of that.
EEOC Retaliation: Guilty Until Proven Innocent
The U.S. Equal Employment Opportunity Commission has published a proposal to change its guidance on workplace retaliation. The proposal broadens the conduct deemed retaliation and what it views as “causation” for an adverse impact on a complaining employee. The best description of the proposed EEOC standard is that a business is “guilty until proven innocent”.
The proposed change is to the EEOC Compliance Manual on Retaliation. While this does not have the force of a statute or regulation, the EEOC’s investigators rely on this manual in handling employee complaints.
Currently, employees are safeguarded from adverse employment actions because of participation in protected activity, which is participating in the administrative or litigation process by filing a complaint or serving as a witness in an investigation. The new guidance will treat filing a complaint using the internal processes of the employer as protected activity.
The proposal also extends what can constitute a connection between an adverse employment action and prior protected activity. The new standard would allow EEOC to use a “convincing mosaic” of circumstantial evidence to support the inference of retaliatory intent. A complaint that is several years old could be deemed to cause retaliation for a recent adverse employment action.
Most seriously, what must the employee show to support a charge of retaliation? Under current guidelines, there must be some objective connection between the protected activity such as filing an EEOC complaint and the alleged retaliation. The proposed standard goes well beyond that to require only a subjective belief of the employee that the employer’s conduct violated the law. Under the new standard, protected activity would be found unless the complaint is “patently specious.”
The proposed guidance almost assures that the EEOC can find protected activity and retaliation if the employee subjectively believes that the employer retaliated against him or her, especially when circumstantial evidence forming a “convincing mosaic” over the employee’s entire span of employment is fair game in the inquiry.
The EEOC accepted comments on the new proposal until February 24, 2016. Final action is expected soon.
The proposal makes trained and professional HR staff in a dealership’s general office more important than ever. Under the new standard, investigation of and actions on complaints cannot be considered in a vacuum. Because of the threat of a retaliation claim, an employee’s entire work and protected activity history are critical not only in dealing with employee complaints or other legal actions, but in employment decisions that may follow.
NLRB Confirms: No Arbitration Class Action Waivers
In 2013, a National Labor Relations Board judge ruled that a California Honda dealership could not include a waiver of class or collective actions in a mandatory arbitration agreement with employees. The decision went further than prior NLRB rulings in finding that not only actual waivers were improper, but so were agreement terms that could be construed by employees as permitting only individual arbitration actions. Last month, the National Labor Relations Board agreed with the administrative law judge’s interpretation. It found that if the arbitration provision could be interpreted by employees as a waiver of their right to bring class and collective actions, it is illegal. As a result it ordered that the agreement be rescinded and revised.
This decision clarifies that the NLRB will bend over backwards to subject employers to the threat of class or collective actions. Not only are explicit waivers of class actions and collective actions unlawful, provisions that employees could in any way view as preventing them from bringing class and collective actions are prohibited. A federal agency favoring the subjective views of workers over an objective view of the situation is putting a thumb on the scales of justice.
Is Mandatory Paid Sick Leave Far Behind?
The Office of Federal Contract Compliance Programs (OFCCP) proposed a rule on February 25, 2016 requiring federal contractors and subcontractors to provide one hour of paid sick leave for each thirty hours an employee works. The rule has a thirty day comment period, and is expected to go into effect January 1, 2017.
So why is this important to car dealers who are not federal contractors? Because the government always begins revolutionizing the law on employment through requirements on those over which it has control, such as federal contractors.
Under the new rules, an employee may accrue of up to 56 hours of paid sick leave and will may carry it from one year to the next.
The new rule clarifies that this leave can be used for broader purposes than leave under the Family and Medical Leave Act, and sick leave must be tracked separately from FMLA leave.
Once this is in place, the inevitable argument is that if it is good enough for federal contractors, it should be good enough for all businesses.