The U.S. Equal Employment Opportunity Commission's proposed update of its “woefully outdated” guidance on workplace retaliation would put a greater burden on employers to disprove such allegations.

Retaliation is a major issue for employers, accounting for 44.5 percent of all charges filed by the EEOC in fiscal 2015. This is an increase from 2007 when such charges were only one-third of all charges filed.

Some legal experts feel the EEOC’s proposal stretches the current interpretation of the law. For example, it says making an internal compliant is protected activity even in absence of a corresponding EEOC charge—a viewpoint that observers say is contrary to rulings by several courts.

“The agency is using this guidance to try and set the tone for the unsettled areas of the law,” said Meredith C. Swartz, an associate at Ballard Spahr L.L.P. in Philadelphia.

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