The Arizona Court of Appeals recent decision in the case Papias v. Parker Fasteners LLC[i] provides a cautionary tale when it comes to the state’s Fair Wages and Healthy Family Act’s (the Act) anti-retaliation provisions.
Papias sued his former employer for retaliation when the company terminated him less than 90-days after he attempted to use paid sick time under the Act. The company’s reasons for terminating Papias included an expressed skepticism that Papias had been ill, the “stress” placed on Papias’ supervisor during the days he was out and lastly, because – despite the stress of his absence – the supervisor no longer needed Papias. Interestingly, Papias did not actually have paid sick time available to use during the time he was absent. However, due to confusion between the companies practices and policies, he was unaware of the deficit.
Under the Act’s rebuttable presumption of retaliation, an adverse employment action (e.g., termination) taken within 90-days of an employee requesting, using, or attempting to use earned sick time is presumed retaliatory absent clear and convincing evidence that such action was taken for other permissible reasons. In the Court’s view, it was undisputed that Papias had attempted to use paid sick time within 90-days of his termination – even if he did not actually have any sick time available. As such, the rebuttable presumption applied, and it will be up to a jury to decide whether the company’s stated reasons for the termination are unrelated to Papias’ exercising his rights under the Act.
A few key takeaways….
- There are no ‘magic words’ when it comes to requesting the use of paid sick time. Papias had texted his supervisor over several days advising him of various symptoms and reiterating with each text that he would be staying at home. The Court deemed this sufficient notice to the employer that the employee was requesting or attempting to use paid sick time.
- Conflicts between written policies and the employer’s actions can create risk. In the Papias case, conflicts between the company’s written policies and its actual practices concerning not only the use but the earning of paid sick time reflected negatively on the company. According to the Court this conflict created a ‘triable issue of fact’ for the jury (sufficient to defeat the motion for summary judgment) as to what policies and practices impacted the situation.
- Employers should review termination situations for any possible impacts due to protected classifications and/or protected activities. Given how close in time Papias’ termination was to his having engaged in protected activity, the employer likely could have lowered its overall risk had it more closely evaluated all the factors impacting its termination decision.
[i] 1 CA-CV 22-0775 (Ariz. Ct. App. Oct. 17, 2023)