Proposed bill changes at-will employment rules

A piece of legislation filed in the Missouri Senate this year would help to prevent what some groups see as a dangerous change to the at-will precedent.

Because Missouri is an at-will employment state, employers don’t need a specific reason, in most cases, to hire or fire employees. Under numerous state statutes, however, there are exceptions. Workers can file suit for wrongful termination if they feel they were fired because of their race, gender or sexual orientation, or because they acted as a whistleblower.

Missouri’s current whistleblower exemption states that employees can’t be fired for reporting that they’ve witnessed or been asked to participate in an activity that is illegal or violates generally accepted public policy.

Sen. Rob Mayer, R-Dexter, sponsored Senate Bill 1046, which would explicitly dictate what is needed for employees to claim whistleblower protection.

Mayer could not be reached for comment at press time, but among the bill’s supporters is Associated Industries of Missouri President Gary Marble, who said the bill responds to recent court decisions that AIM feels have increased the number of unnecessary lawsuits.

Marble said recent court rulings have expanded the whistleblower statute beyond its intended uses.

One of the cases in question is Kyle J. Kelly v. Bass Pro Outdoor World LLC filed in June 2003 in St. Charles County Circuit Court.

Calls to Bass Pro were not returned, but according to court documents, Kyle Kelly, a former employee at Bass Pro’s St. Charles store, sued the sporting goods retailer for wrongful termination. Kelly, a loss-prevention associate, said he was fired after seeing a fellow employee break into a parked car to determine its owner and reporting the action to supervisors.

Kelly initially won the suit and was awarded $4,300 in compensatory damages for lost wages and $2.8 million in punitive damages. The Missouri Eastern District Court of Appeals upheld the decision but overturned the punitive award, sending the case back to circuit court for further review. The court has not yet decided the status of punitive damages requested by Kelly.

In finding for Kelly, the St. Charles County Circuit Court cited a previous case, Thomas P. Dunn v. Enterprise Rent A Car Co., filed in St. Louis County in 2001. The ruling in that case said that whistleblowers don’t have to actually prove that they’ve witnessed a criminal act or act in violation of public policy – they only have to “reasonably believe” that what they witnessed is illegal to file suit under the whistleblower status.

Marble said the two cases set a dangerous precedent for Missouri businesses.

“Employers need to have the ability to hire and utilize human resources the way they need to in order to be effective and competitive, and these types of court rulings can prevent that type of growth in our state,” Marble said.

The proposed legislation would require a “preponderance of evidence” that the employee witnessed an act that was illegal or was asked to commit an illegal act, and was fired solely for witnessing or not performing the illegal activity, in order for that employee to file suit under the state whistleblower statute.

Among the opposition to the bill is Jerome Dobson, an attorney with Dobson, Goldberg, Moreland & Berns in St. Louis and a member of the Missouri Association of Trial Attorneys. Dobson said the biggest problem with the legislation is that it requires whistleblowing activity to be the only factor in the employee’s firing.

“If the employee proves that 99 percent of the reason he was fired is because he refused to engage in an illegal act, but the employer can prove that 1 percent is because the employer hated the yellow shirt the employee wore, the employee loses,” Dobson said. “I think it’s a very difficult standard. It puts an extraordinary burden on the plaintiff.”

Dobson added that similar legislation protecting employees from civil rights discrimination only requires employees to show that discrimination was a contributing factor in their dismissal.

Marble said the legislation is not intended to penalize plaintiffs with legitimate complaints.

“We want to protect the whistleblower; that’s not the issue,” Marble said. “The issue is that we have individuals who are trying to use … that statute to bring litigation against the employer based on charges that have no legitimacy. In that case, it’s almost impossible to truly terminate a person for cause, because they’ll find some reason to come back after you.”

SB 1046 was awaiting a hearing in the Pensions, Veterans Affairs and General Laws Committee as of Feb. 13.[[In-content Ad]]