Letter to the Editor: Whistle-blower cases need legal clarity

I write concerning Springfield Business Journal’s Feb. 18 article “Proposed bill changes at-will employment rules,” which discusses Missouri Senate Bill No. 1046. The bill, proposed by Sen. Rob Mayer, R-Dexter, would help clarify the issues in cases involving whistle-blowers.

The bill provides an exception to the employment-at-will doctrine and, as currently written, creates a whistle-blower cause of action for an employee who proves by the preponderance of the evidence that (1) he reported to a proper authority of the employer (or a proper public authority) that he had a good faith belief and reasonable belief that certain conduct violated a statute, constitutional provision, or regulation and a clearly mandated public policy; (2) he was discharged; and (3) the employee’s report was the exclusive factor in the discharge.

An employee also may file a claim under the bill in situations where the employee proves by a preponderance of the evidence that (1) the employer directed him to perform conduct that the employee had a good faith and reasonable belief would, if completed, violate a statute, constitutional provision, or regulation and clearly mandated public policy; (2) the employee refused to perform the unlawful act; (3) the employee was discharged; and (4) the employee’s refusal to perform the unlawful act was the exclusive factor in the discharge.

The law would create a statutory framework for the elements needed to state a cause of action for a type of wrongful discharge case that plaintiffs have been bringing for years under Missouri common law for retaliatory discharge based on public policy. The new law in its current form would be consistent with the elements of a plaintiff’s claim for retaliatory discharge under the workers’ compensation law, which requires that a plaintiff prove that the exclusive reason for his discharge was pursuit of workers’ compensation benefits.

In the past, Missouri courts ruling on public policy cases have similarly ruled that the plaintiff must show the violation of public policy is the exclusive reason for the discharge, but other cases have questioned whether exclusive causation should be the standard.

Passage of the bill certainly would be helpful by clarifying via statute what elements of proof are necessary to state a claim for wrongful discharge based on public policy.

—Michael Lowenbaum, The Lowenbaum Partnership LLC, St. Louis