Legislative Update: Judiciary

Posted by Dave Berry
Subject: Whistleblower Protection
Gate Way Group Contact: Deanna Hemphill

Key business groups came out in full support of Senate Bill 490 Monday evening at the Senate Judiciary Civil and Criminal Jurisprudence Committee hearing.  Senator Brad Lager (R-Savannah) is the sponsor of the measure aimed to provide Missouri employers with needed clarification regarding who is protected under Missouri Whistleblower laws while striking balance with the rights of individuals and the right to earn a living.  The Missouri Chamber of Commerce, Associated Industries of Missouri, Missouri Grocers’ Association, Missouri Retailers’ Association, and the Greater Kansas City Chamber of Commerce were among those that testified in support.  As anticipated, the Missouri Association of Trial Attorneys opposed the bill.

The main provisions of the bill are as follows:

Abrogates all Missouri case law relating to the public policy exceptions to the employment at-will doctrine. Employers are barred from discharging or retaliating against the following persons:

–        a person who reports an unlawful act of the employer or its agent to governmental or law enforcement agencies, officer, or the employee’s human resources representative employed by the employer;

–        a person who reports, to an employer, serious misconduct of the employer or its agent that violates a clear mandate of public policy as articulated in a constitutional provision, statute, or regulation promulgated pursuant to statute;

–        a person who refuses to carry out a directive issued by an employer or its agent that, if completed, would be a serious violation of the law;

–        or a person who engages in conduct otherwise protected by statute or regulation where the statute or regulation does not provide for a private right of action.

Employers are defined as entities with six or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year. The state, its political subdivisions, a corporation wholly owned by the state, an individual employed by an employer, and corporations and associations owned and operated by religious or sectarian groups are not employees and therefore exempt from the provisions of the act.
Exempt, supervisory, managerial, and executive employees and officers who are employed to report the misconduct are also not covered under the act.

The employee’s protected conduct shall be the motivating factor in the employer’s discharge or retaliation.

Employees have a private right of action for actual but not punitive damages under the act unless another private right of action for damages exists under another state or federal law. Remedies allowed are back-pay, reimbursement of medical bills incurred in treatment of mental anguish, and double those amounts as liquidated damages if it is proven by clear and convincing evidence that the employer’s conduct was outrageous because of the employer’s evil motive or reckless indifference to the rights of others. The liquidated damages shall be treated as punitive damages and back-pay and reimbursement shall be treated as compensatory damages in a bifurcated trial if requested by a party.

Any party may demand a trial by jury.

Members of the Senate Judiciary Committee:

Senator Bob Dixon (R-Springfield), Chair
Senator Ed Emery (R-Lamar), Vice Chair
Senator Rob Schaaf (R-St. Joseph)
Senator Kurt Schaefer (R-Columbia)
Senator Eric Schmitt (R-Kirkwood)
Senator Jolie Justus (D-Kansas City)
Senator Joe Keaveny (D-St. Louis)