The Law Office of Kurt H King

As of August 28, 2017, Missouri’s new Whistleblower law–section 285.575, RSMo–took effect.  Most, if not all, would say it is a step back for whistleblowers.

The new law raises the bar in several respects:

1) The new threshold of proof required is that the whistleblowing have been “the motivating factor” behind the employer’s action adverse to the whistleblowing employee.

2) Subsection 4 states only that that it is an unlawful practice for an employer to “discharge” the whistleblower.  Other retaliatory acts are not declared to be unlawful.   So whistleblowers are only protected if they are fired/terminated/discharged?–apparently so.

3) Subsection 3 declares that no cause of action “shall exist” under section 285.575 if the claimant also has a–[similar?]–private right of action under another statutory or regulatory scheme by federal or state law.  Will whistleblower cases under this new law be dismissed if joined with alternative counts based on other whistleblower laws?  What if the application of the other statutory or regulatory scheme depends on disputed facts for jury?  What if the other private right of action allows only a lesser amount of damages to the claimant?  And, what if . . . what if . . .  what if . . .  ?

4) Subsection 5 also prohibits recovery of punitive damages.

5) Subsection 7 allows only (1) back pay, (2) reimbursement of directly related medical bills, and (3) double damages in cases of clear and convincing evidence of “outrageous” conduct by the employer.  No provision for an award of “front pay” damages appears in section 285.575.

6) Subsection 8 does allow court costs and reasonable attorney fees.

7) Subsection 3 states the whistleblower law of section 285.575, along with chapters 213 (employer-employee matters) and 287 (workers’ compensation) shall be “the exclusive remedy” for any and all claims of unlawful employment practices.  May Missouri claimants NOT also make claim under federal law?  Subsection 3 contemplates claimants making claim under federal law, clashing with this “exclusive remedy” provision.

8)  In subsection 2, the government that makes this new law takes care to exempt itself and a chosen few from its provisions by excluding from the definition of an “employer”: the “state of Missouri” and its agencies, “instrumentalities,” and political subdivisions; and, entities owned or operated by religious or sectarian organizations.  (Why are religious or sectarian organization entities preferred?  What basis justifies such preferential treatment in this law?)

In short, our new whistleblower law–section 285.575–leaves something to be desired in clarity and fairness.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Litigation, General Practice