With the legislative session coming to a close next week, developments are heating up at a fast and furious pace. I’ll do some quick updating and then provide a more through review when time permits.
First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements. The Senate has been working off of some amendments as well, which can be located here.
The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases. The bill now moves on to the House for a vote.
As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling. The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person’s complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints — even those that may not be warranted.
This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year — much less three years — to "retaliate" against such a complaint. As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:
The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."… Action taken (as here) 20 months later suggests, by itself, no causality at all.
Given the highest court’s reasoned conclusion that a transfer or firing taken 20 months after a person’s complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?
Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward. Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.