Employment Law Recovery – Blue Skies No More - Lewis Brisbois Bisgaard & Smith LLP

Employment Law Recovery – Blue Skies No More

In a boon for employers, on May 8, 2017, the Missouri House of Representatives passed Senate Bill 43, which dramatically alters Missouri’s state employment anti-discrimination statutes. The Bill previously passed the Senate. The Bill brings Missouri’s state anti-discrimination laws in step with federal law, caps available damages, and makes its harder for a plaintiff to prove a discrimination or harassment case. The Bill is expected to be signed by Missouri governor Eric Greitens and should become law on August 28, 2017.

Under current Missouri law, employers and individual supervisors face the potential of multi-million dollar verdicts and uncapped damages. Employment litigation in Missouri is especially risky because plaintiffs only need to prove that discrimination merely “contributed” to the adverse employment action. Because of the lower burden of proof, the Missouri Supreme Court had suggested that summary judgment in employment discrimination cases was appropriate only in rare cases.

Senate Bill 43 significantly changes Missouri’s employment litigation landscape. First, the Bill eliminates the existing lower “contributing factor” standard in favor of a “motivating factor” standard. To prove unlawful discrimination, the plaintiff must now show the employee’s protected classification (race, age, national origin, sex, etc.) truly played a role in the adverse employment decision and was a determinative influence on the decision. The plaintiff must further prove that such action was the direct proximate cause of the plaintiff’s alleged damages.

Second, Senate Bill 43 caps non-economic damages at the following levels:

$50,000 for employers with between 5 and 100 employees
$100,000 for employers with between 100 and 200 employees
$200,000 for employers with between 200 and 500 employees
$500,000 for employers with more than 500 employees.

Attorneys’ fees are still available to prevailing plaintiffs.

Senate Bill 43 also eliminates individual liability. Under current Missouri law, an individual supervisor is liable in an individual capacity for any violations of Missouri’s anti-discrimination statutes. Senate Bill 43 excludes from the definition of employer “individuals employed by employers.”

Finally, Senate Bill 43 creates the “Whistleblower’s Protection Act.” The Act grants employees a cause of action against their employer in the event the employer discharges an employee who:

reported to the proper authorities an unlawful act of his or her employer;
reported to his or her employer serious misconduct of the employer that violates a clear mandate of public policy as articulated in a constitutional provision, statute, or regulation promulgated under statute; or,
refused to carry out a directive issued by his or her employer that if completed would be a violation of the law.

Employees who are employed to report or provide professional opinions to their employer regarding potential misconduct may not bring an action under the “Whistleblower’s Protection Act.”

Damages are also limited under the Whistleblower’s Protection Act. A protected whistleblower may recover back pay and interest. If the whistleblower can show that the employer acted with malice or reckless indifference, the whistleblower may double his or damages under the Bill’s liquidated damages provision. A prevailing plaintiff may also recover his or her attorneys’ fees.

Senate Bill 43 greatly limits the possibility of multi-million dollar verdicts in the vast majority of single-plaintiff discrimination cases. If signed into law, Senate Bill 43 will also result in more cases being brought or (more likely) removed to federal court because individual liability is eliminated. Most importantly, cases are more likely to be dismissed before trial on summary judgment, which drives down the cost of the defense and the overall value of the plaintiff’s claims.

The employment lawyers of Lewis Brisbois are available to assist with respect to compliance with this potential new law and the myriad of other employment laws and regulations.