Legislative News from ARSHRM

All HR Professionals:

Last year, the Arkansas Supreme Court decided that an individual (supervisor, manager, HR professional, etc.) could be sued personally and be held personally liable for retaliation against an employee. We believe this case was wrongly decided. Representative Linda Tyler of Conway (a former HR professional herself) has agreed to sponsor legislation to reverse this decision and return the law to what it should be, i.e., the employer, not the individual, is the sole entity that can be sued and held liable for employment discrimination and/or retaliation.

ARSHRM and its lobbyists Courtney Sheppard and Randy Thurman and Representative Tyler have done all they can. It is now time for your voice to be heard. This is going to be a very close vote in the House Judiciary Committee. The Arkansas Trial Lawyers Association is putting a lot of pressure on the attorney members of the committee to oppose the bill. (After all, suing the employer and a number of individuals is a great trial technique to increase the cost of defense and increase the chance of settlement.)

 It is time for you to contact your member of the House of Representatives. It is easy to do this. Just click on the following link, type in your home address, with commas, as follows:   999 Main St., Little Rock, AR, 72201. (DO NOT FORGET THE COMMA BEFORE THE ZIP CODE!) That will bring up the name of your Representative and your Senator, with a link to their contact information.

www.arkansashouse.org/about-the-house/district-map

 You need to call or email your Representative, NOW. (The need to contact your Senator will come later.) A list of talking points on this bill is attached to this email. Please do not simply forward the talking points. Pick out a few points that you want to make and make the contact. What you say and how you say it is not as important as the fact that you communicate to your Representative that  you want him/her to support the bill. We need every Representative to have multiple contacts from their constituents.

Of particular importance are the Members of the House Judiciary Committee. If you find that your Representative is on the list of committee members below, it is exceptionally important that you contact them. The Members of the House Judiciary Committee are:

• Williams, Darrin (D-36) - Chair
• Wilkins, IV, Henry "Hank" (D-17) - Vice Chair
• Baker, Tommy Lee (D-55) - Member
• Branscum, David L. (R-90) - Member
• Deffenbaugh, Gary (R-66) - Member
• Eubanks, Jon S. (R-84) - Member
• Gillam, Jeremy (R-49) - Member
• Hammer, Kim (R-28) - Member
• Nickels, Jim (D-43) - Member
• Powers, David "Bubba" (D-3) - Member
• Ratliff, James (D-73) - Member
• Rice, Terry (R-62) - Member
• Rogers, Tiffany (D-14) - Member
• Shepherd, Matthew (R-6) - Member
• Slinkard, Mary L. (R-100) - Member
• Steel, Nate (D-21) - Member
• Vines, John T. (D-25) - Member
• Walker, John W. (D-34) - Member
• Wright, Marshall (D-51) - Member

Finally, any time there is a bill that is perceived to "roll back" civil rights legislation, there is a big emotional back lash. Representative Linda Tyler is not immune to this criticism, and it is difficult to take. Please take time to send Linda a email thanking her for carrying this load for you. And if you are a constituent of Representative Tyler's, please try to make a personal contact with her to thank her for her support.

Representative Tyler's contact information:

• Email: eat0@eau0eav0eaw0
• Phone: 501-329-8644
• Fax: 501-329-8644

Please help ARSHRM protect YOUR pocketbook! Contact your Representative, NOW. If you have any questions, please contact any of the following:

Donna Merriweather, SPHR

ARSHRM State Legislative Affairs Co-Director Senior Vice President-HR Director P. O. Box 417
901 Main Street • Arkadelphia, AR  71923
Phone:  870-246-5440
Fax:  870-230-1058
Ext.:  20901

Darrin E. Coon, SPHR

ARSHRM State Legislative Affairs Co-Director
Business and HR Manager, John Brown University
2000 W. University Street • Siloam Springs, AR  72761
eat1@eau1eav1eaw1
Work:  479-524-7123

Russell Gunter, SPHR

ARSHRM Government Affairs Director
Cross, Gunter, Witherspoon & Galchus, P.C.
500 Clinton Ave., Suite 200 • Little Rock, AR 72201
(501) 371-9999
Fax: (501) 371-0035
eat2@eau2eav2eaw2

Talking Points ACRA Amendment

LEGAL PERSPECTIVE

1. When legislature passed Arkansas Civil Rights Act in 1993, intent was to mirror federal anti-discrimination statutes of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Two exceptions:
   1. Federal law covered employers with 15 or more employees while the state law covers employers with 9 or more employees.
   2. Federal law has a 6 month statute of limitations while the state law has a one year statute of limitations.
2. Under federal statutes, a plaintiff cannot sue an individual. Claims must be brought against the employer only.
3. Arkansas Supreme Court ruled last year that a plaintiff could sue individuals (supervisors, managers, human resources professionals, co-workers, etc.) for retaliation in an employment context.
4. This is not what legislature intended.(Russell Gunter was appointed to the Arkansas Civil Rights Commission in 1991 by Governor Bill Clinton and was heavily involved in the legislative session when the ACRA was passed in 1993.)
5. Proposed Amendment does the following:
   1. a. Clarifies that there is a cause of action for retaliation under the employment provisions of the Arkansas Civil Rights Act.
   2. b. Clarifies that only an employer can be sued under the employment provisions of the Arkansas Civil Rights Act.
   3. c. Mirrors federal law.
   4. d. Does not limit in any way the recovery that a plaintiff can obtain under the employment provisions.
6. Surrounding States
   1. a. The following states do not allow individual liability under their civil rights legislation: Oklahoma, Texas, Louisiana and Mississippi
   2. b. Missouri does allow individual liability. Tennessee allows in limited circumstances.
7. Impact of Not Amending: Increased cost of litigation
   1. Businesses may have to hire two law firms to defend an employment claim, one for the employer and one for the individual sued.
   2. First line supervisors, co-workers, etc. cannot afford the cost of defense of an employment lawsuit.
   3. First line supervisors, co-workers, etc. do not have the resources to satisfy a judgment against them.
   4. Potential bankruptcy should not be a concern of an employee who is about to be promoted to a supervisory position.
   5. Plaintiff cannot recover twice for same act of discrimination, therefore if a plaintiff gets full recovery from employer, cannot seek additional recovery from individual.
   6. Suing the individual is a trial attorney’s tactic to increase potential cost of defense, enhancing settlement possibilities.

HUMAN RESOURSES PERSPECTIVE

1. The Human Resources Profession is committed to the elimination of discrimination and retaliation in the workplace.
2. The Human Resources Profession is also responsible to ensure that their entity’s supervisors and managers make appropriate evaluations of performance for pay and promotion purposes, do appropriate counseling and discipline, and when necessary, make recommendations on termination of employment.
3. If individual supervisors and managers are subject to the cost of defending a lawsuit each time they make an evaluation or do appropriate counseling or discipline, Human Resource Professionals will have a very difficult time getting supervisors and managers to do their job. Indeed, it will make it very difficult to find individuals willing to accept these roles given the likelihood of having to defend a lawsuit.
4. The cost of defending an employment retaliation lawsuit could break or bankrupt most individual first line supervisor, and many manager level employees. This is true even if the individual ultimately wins the lawsuit!
5. The employing entity remains, and should remain, liable for employment discrimination and retaliation.