1. What legal protection does Missouri provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Missouri recognizes a public policy exception to the at-will employment doctrine. An employer may not fire an employee for a reason that is contrary to the public policy of Missouri. An employee has a cause of action-in other words, the employee may sue-for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Missouri courts will look to statutes, constitutional provisions, regulations, judicial decisions, practices of government officials, and (in some instances) professional codes of ethics to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Missouri statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Missouri’s public policy. In both situations, employees are protected from retaliatory discharge.
As one Missouri court has defined the term, “Public policy is that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good.” Whistleblowers have received protection from retaliation under the public policy exception.
In addition, the Missouri General Assembly has adopted narrow statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in those areas covered by a specific statute are protected from retaliation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that is contrary to public policy. Specifically, Missouri courts have protected the following activities:
- Reporting wrongdoing, or violations of law or public policy by the employer or fellow employees to supervisors or third parties
- Refusing to perform an illegal act or an act contrary to a strong mandate of public policy
- Acting in a manner that public policy would encourage, such as performing jury duty
- Filing a workers’ compensation claim
- Reporting improper patient care to the appropriate authority
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing a discriminatory employment practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing concerning Missouri’s anti-discrimination laws. Mo. Rev. Stat. § 213.070(2).
Healthcare Fraud: An employee may not be retaliated against for reporting a fraudulent action in order to obtain a healthcare payment or for participating in a healthcare fraud investigation. Mo. Rev. Stat. §191.908.
Nursing Care Workers: An employee may not be retaliated against in retaliation for reporting a violation of a law or ordinance applicable to the nursing home. Mo. Rev. Stat. §198.301.
Municipal Police: An employee of a municipal police force may not be retaliated against for reporting another employee’s illegal action. Mo. Rev. Stat. § 84.342.
Penal Facility Employees: An employee must report abuse of an offender and cannot be retaliated against for doing so. Mo. Rev. Stat. § 217.410.
Public Employees: A state employee may not be retaliated against for reporting a violation of law or for reporting a mismanagement, gross mismanagement, waste, fraud, or danger to public health and safety. Mo. Rev. Stat. § 105.055.
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers’ compensation claim. Mo. Rev. Stat. § 287.780.
3. How do I file a whistleblower or retaliation claim in Missouri?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 5 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a signed, written complaint with the Missouri Commission on Human Rights (MCHR). The complaint must be filed within 180 days of the retaliatory action. The complaint must state the name and address of the person alleged to have committed the retaliatory action, and must describe the retaliatory action. MCHR will investigate and attempt to correct the situation. If MCHR is unable to correct the situation within 180 days, the employee may request a “right-to-sue” letter. Upon receipt of this letter, the employee then has 90 days to file a lawsuit in an appropriate court.
MCHR has made a complaint form available on its web site as a PDF file. MCHR operates several offices in Missouri: Jefferson City, Kansas City, Sikeston, St. Louis, and Springfield. You may contact MCHR’s main office (Jefferson City) at the following:
MCHR – Jefferson City
PO Box 1129
3315 West Truman Boulevard
Jefferson City, MO 65102-1129