[email protected] JAY M DADE · Presentation also given on May 4, 2010. Feb 2010 New EEOC Rules Change Employer Landscape ... Refractive surgery clinic employee reported to employer

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Departments

Practice Areas

EducationJ.D., University of

Missouri-Columbia, School of Law, 1993,

Editor, Journal of Dispute Resolution; Order of Barristers; Board of Advocates; Member of MU Law Society

B.J., Magazine, University of Missouri-Columbia, 1985

AdmissionsMissouri, 1993 Kansas, 1997

Trial

Labor and Employment Business Litigation Employment Litigation

[email protected] Springfield

Phone: 417.829.3812Fax: 800.827.2089

JAY M DADE Of Counsel

Jay M. Dade is an experienced labor and employment lawyer who counsels clients on day-to-day personnel management and union-management issues, including wage-hour matters; Family Medical Leave Act and discrimination claims arising under federal and state law; unfair labor practice charges, union organizing campaigns, representation elections and secondary activity and arbitrations; non-compete agreement implementation and enforcement; and unemployment compensation and eligibility proceedings. Mr. Dade has represented employers before the EEOC, National Labor Relations Board, U.S. Department of Labor, U.S. Occupational Health & Safety Administration, Missouri State Board of Mediation, the National Association of Securities Dealers and numerous state and local human rights agencies nationwide and has also represented employers in Federal and state courts. His practice also includes general commercial and business litigation matters for particular clients.

Mr. Dade also provides management training programs in the areas of sexual harassment, drug and alcohol policies, labor relations and general personnel administration, as well as in electronic information theft and tampering issues.

Memberships and Affiliations

■ Springfield Metropolitan Bar Association ■ Young Lawyers Committee Chairman (1995)

■ The Missouri Bar ■ Labor and Employment Committee

■ Missouri Organization of Defense Lawyers ■ Heart of America United Way

■ Community Care Committee Member (1998) ■ Mizzou Alumni Association (University of Missouri-Columbia)

■ President (2005-06) ■ Mizzou Legislative Network Executive Committee (2001-present)

■ United Way of the Ozarks ■ Agency Relations and Allocations Committee member (1999-2002) ■ Community Investment Committee member (2009-present)

■ University of Missouri Flagship Council ■ Founding Board Member (2005-2006) ■ Board Member (2007-present) ■ Secretary (2007-2008)

■ University of Missouri Flagship Council PAC ■ Chairman (2009-present) ■ Board Member (2007-present)

■ University of Missouri Presidential Search Advisory Committee (2007) ■ University of Missouri Jefferson Club

■ Board of Trustees member (2009-present) ■ Defense Research Institute

■ Member (2009-present) ■ Society for Human Resource Management

■ Member (2009-present)

EXPERIENCE

Springfield Underground, Inc. (2007) (Springfield, Missouri)

■ Laborers Union Local No. 663 ■ Operating Engineers Union Local No. 101 ■ Teamsters Union Local No. 245

U.S. Bancorp Investments, Inc. v. Nadia Cavner, et al., NASD No. 05-04734 (2006) Enforcement of non-solicitation and confidentiality provisions against former financial services representatives, resulting in $347,000 award.

Associated Wholesale Grocers v. Moncrief, 970 S.W.2d 425 (Mo. App. S.D. 1998) (“Moncrief II”) Unemployment benefits claimant’s positive drug test held to be admissible business record v. inadmissible hearsay in Missouri Employment Security Law proceedings.

Rhonda R. McNeal v. The Foley Company, 98-ERA-05 (U.S. DOL 1998) “Whistleblower” case arising under the Energy Reorganization Act.

Associated Wholesale Grocers v. Moncrief, 955 S.W.2d 37 (Mo. App. S.D. 1997) (“Moncrief I”) Missouri Labor and Industrial Relations Commission used the incorrect standard for admitting “business records” under Missouri Employment Security Law.

PUBLICATIONS & PRESENTATIONS

July 29, 2010 Drafting and Litigating Non-Compete AgreementsEmployment Law CLE Seminar, Springfield Metropolitan Bar AssociationSpringfield, Missouri

July 28, 2010 Employment Law UpdateMissouri Association for Community ActionJefferson City, Missouri

June 17, 2010 Sexual Harassment in the WorkplaceKSFX-TV, Springfield, MissouriCo-Anchor Kate Stacy interviewed Mr. Dade live concerning workplace sexual harassment and ways employers can prevent and respond to sexual harassment allegations

February 12, 2010

Documentation, Discipline and Discharge OverviewOzarks Technical Community College Managers Training, Springfield, MissouriPresentation also given on May 4, 2010.

Feb 2010 New EEOC Rules Change Employer LandscapeSpringfield Business JournalJay Dade was a guest columnist for the article in the Springfield Business Jouirnal.

2008-2010 Unemployment Insurance and Workplace Investigations and Protecting Electronic InformationChapters of Missouri Human Resources Manual; Co-published by Polsinelli Shughart PC and Missouri Chamber of CommerceUpated Fall 2008, Spring 2009 and Spring 2010

2009 The Developing Labor LawChapter 27 (2009 Cumulative Supp.)Contributing editor

2009 Labor and Employment Law Issues for the Construction IndustryMissouri Construction Law, Chapter 15, 2009 SupplementThe Missouri Bar 2009

Aug 17, 2009 Anti-Discrimination, Anti-Harassment Legal Overview and Review of OTC's PoliciesOzarks Technical Community College Adjunct Faculty Training, Springfield, MissouriPresentation also given on September 16, 2009, September 25, 2009 and October 13, 2009.

May 2009 HR Recordkeeping: Paper and Electronic Personnel Files; What to Store and What to DumpPresented through Business and Legal Reports

Apr 2009 Pre-Employment Interviews, Sexual Harassment and Workplace Investigations and Personnel Document Retention RequirementsPresented at the Missouri State University GO LEAD Program

Dec 2008 EFCA's Mandatory Interest Arbitration ProvisionsPresented at Employee Free Choice Act: Strategies to Combat the Dangers of New Union Organizing-Friendly Laws Webinar, Kansas City, Missouri

Oct 2008 What Federal, Missouri and Arkansas Laws Provide When Departing or Former Employees Raid an Employer's Computer System; Summary of the Worker Adjustment and Retraining Notification Act of 1988 (the WARN Act)Presented at Labor, Employment and Benefit Symposium (Springfield, Missouri)

Apr 2008 Human Resources IssuesPresented at Legal Services of Missouri statewide conference (Lake Ozark, Missouri)

Feb 2008 Record-Retention Policies Keep Attorneys on Edge Springfield Business Journal, guest column, Industry Insight

Jan 2008 Employers Recordkeeping RequirementsPresented at "Empowering You" Seminar, Springfield, Missouri

Nov 2007 Employers Must Follow Rules for Enlisted Staff MembersSpringfield Business Journal, guest column, Industry Insight

May 2007 To Ask or Not to Ask: Navigating the Legal Land Mines of Pre-Employment Interviews; and Non-Compete, Non-Soliciation and Confidentiality AgreementsPresented at the Missouri State GO LEAD Program

Sept 2006 Spies Like Us: What Federal, Missouri and Kansas Laws Provide When Departing or Former Employees Raid an Employer's Computer SystemPresented at Labor, Employment and Benefit Symposiums (Kansas City, Missouri on September 21 and Springfield, Missouri on November 16, 2006)

May 2006 Ethical Issues in Employment LawPresented at the Annual Ethics CLE Seminar

Feb 2003 Update on the Americans With Disabilities Act

Presented at ADA, FMLA and Workers' Compensation in Missouri CLE Seminar, Springfield, Missouri

Jan 2001 Termination of Employment - Practical Considerations Presented at Employee Discharge and Document in Missouri CLE Seminar, Springfield, Missouri

Blowing the Whistle Loudly:Blowing the Whistle Loudly:Recent Developments in Wrongful Discharge LawRecent Developments in Wrongful Discharge Law

Presented by:

Jay M. Dade

©2010 Polsinelli Shughart PC

Missouri “The Whistleblower Trio”Missouri “The Whistleblower Trio”

February 9, 2010 – Missouri Supreme Court cases recognize cause of action for wrongful discharge based on public policy exception:– Fleshner v. Pepose Vision Institute, P.C., 304

S.W.3rd 81

– Keveney v. Missouri Military Academy, 304 S.W.3rd 98

– Margiotta v. Christian Hospital Northeast Northwest, 2010 WL 444 886


Fleshner v. Pepose Vision Institute, P.C.Fleshner v. Pepose Vision Institute, P.C.

Refractive surgery clinic employee reported to employer she received call from U.S. DOL investigator concerning hours worked for employer. Next day, employer fired employee

Employee sued based on Missouri statute.

Jury verdict for employee $30,000.00 actual damages; $95,000 punitive damages


Fleshner holdingFleshner holding

Employee cannot be terminated for:– Refusing to violate the law or any well-

established and clear mandate of public policy:• Constitutional provision

• Statute

• Regulation

• Rule

– Reporting wrongdoing or violations of law to superiors or public authorities


Fleshner causation standardFleshner causation standard

Employee’s action of reporting an illegal activity or refusing to violate law need only be a contributing factor for termination

Court rejected “exclusive cause” standard


Keveney v. Missouri Military AcademyKeveney v. Missouri Military Academy

Employee, teacher under contract, suspected student being physically abused. Reported suspicion to supervisors so they could report to Mo. DFS. Supervisors refused/informed employee his job in jeopardy if he went to DFS. Terminated same day as report made to supervisorsEmployee sued: wrongful discharge; breach of contractContract: termination only for causeTrial court dismissed wrongful discharge claim. Jury verdict on contract breach claim for$13,300


Keveney holdingKeveney holding

Extended cause of action to employees employed under contract. Rationale:– Action based on employer’s violation, not terms

of contract

– Contractual claim insufficient: does not concern violation of public policy nor acts as deterrent for future violations

– Should afford contractual employee same protection as at-will employee


Margiotta v. Christian Hospital Northeast Northwest

Margiotta v. Christian Hospital Northeast Northwest

Hospital terminated employee for violent outbursts. Employee sued, claiming he was terminated for reporting unsafe practices to supervisors, citing Missouri and Federal patient safety regulations

Trial court entered summary judgment against employee


Margiotta holdingMargiotta holding

Employee must establish that public policy mandated by cited provision is violated by the discharge:– Must prohibit conduct engaged in by employer

Employee’s claim failed:– Conduct complained of not preserved by cited

regulations, which were general patient safety statements

– Employee’s belief that employer’s acts violated law or public policy insufficient to state cause of action


Frevert v. Ford Motor CompanyFrevert v. Ford Motor Company

July 20 8th Circuit Decision interpreting/following Missouri’s Whistleblower Trio

Merely alleging facts regarding employer’s company policy insufficient to support whistle-blower claim

Court found Frevert never alleged violation of specific law and whether such law involved clear mandate of public policy

Because record reflected no Missouri public policy “encouraging the uncovering and disciplinary violations of company policy,” Frevert not entitled to whistleblower protection under Missouri law


Impacts of Missouri Whistleblower TrioImpacts of Missouri Whistleblower Trio

Public-policy wrongful discharge claim available to all employees

Former employees more likely to add wrongful discharge claims

Future courts more likely to apply public-policy exception even in other cases when adverse action taken against employee

Summary judgment in wrongful discharge cases more difficult to obtain


What about Kansas?What about Kansas?

Wrongful termination claims based on violations of public policy characterized as “retaliatory discharge” claims– Distinguished from claims alleging breach of

implied/express employment contracts (“wrongful discharge” actions)


Kansas “retaliatory discharge” actionsKansas “retaliatory discharge” actions

Four recognized retaliatory discharge exceptions:– Filing WC claims

– Whistleblowing

– Exercising FELA rights

– Reporting “elder abuse” incidents

Includes “retaliatory demotions”


What should employers do?What should employers do?

Review complaint procedures/ethics policies

Ensure alternative methods to report possible illegal activity/wrongdoing

Make clear such complaints can be made

Train supervisors/managers to receive/respond to such complaints

Review/modify as necessary policies against retaliation


Sample Federal WhistleblowerProtection Laws


Corporate/Financial/Manufacturing– Consumer Product Safety Act of 2008– Sarbanes-Oxley Act of 2002, Corporate and

Criminal Fraud Accountability Act

Environmental– Clean Air Act– Pipeline Safety Improvements Act– Safe Drinking Water Act– Solid Waste Disposal Act– Water Pollution Control Act




Federal Contractors– False Claims Act

Labor Rights– Employee Retirement Income Security Act

(ERISA)– Fair Labor Standards Act (FLSA)/Equal Pay Act– National Labor Relations Act– Employee Polygraph Protection Act

Nuclear– Energy Reorganization Act




Transportation/Airline Safety– Aviation Investment and Reform Act for the 21st

Century– Railway Safety Labor Act– Safe Containers for International Cargo Act– Surface Transportation Assistance Act

Workplace Health and Safety– Asbestos School Hazard Abatement Act– Mine Health and Safety Act– Occupational Safety and Health Act


Sample Kansas/Missouri LawsSample Kansas/Missouri Laws

Kansas False Claims Act

Kansas Whistleblower Act(Public employees)

Missouri Whistleblower Act

About the PresenterAbout the Presenter

Jay M. Dade is an experienced labor and employment lawyer who counsels clients on day-to-day personnel management and union-management issues, including wage-hour matters; Family Medical Leave Act and discrimination claims arising under federal and state law; unfair labor practice charges, union organizing campaigns, representation elections and secondary activity and arbitrations; non-compete agreement implementation and enforcement; and unemployment compensation and eligibility proceedings.

Jay M. DadePolsinelli Shughart PC

Hammons Tower901 S. Louis, Street,

Suite 1200Springfield, MO 65806

417.829.3812

Blowing the Whistle Loudly:Blowing the Whistle Loudly:Recent Developments in Wrongful Discharge LawRecent Developments in Wrongful Discharge Law

Presented by:

Jay M. Dade

2708398.01

Blowing the Whistle Loudly: Recent Developments in Wrongful Discharge Law Jay M. Dade, Esq.

______________________________________________________________________________

I. Missouri – “The Whistleblower Trio”

On February 9 earlier this year, the Missouri Supreme Court concurrently decided three

cases collectively known as “The Whistleblower Trio:” Fleshner v. Pepose Vision Institute, P.C.,

304 S.W.3rd 81 (Mo. 2010); Keveney v. Missouri Military Academy, 304 S.W.3rd 98 (Mo.

2010); and Margiotta v. Christian Hospital Northeast Northwest, 2010 WL 444886 (Mo. 2010).

Through its Whistleblower Trio, the Missouri Supreme Court recognized, for the first time, the

cause of action for wrongful discharge based on the public-policy exception.

Previously, lower Missouri Appellate Courts had recognized this cause of action.

However, it was unclear prior to the Missouri Supreme Court pronouncements under what

circumstances the cause of action was available and what standard of proof was required.

Generally, an employee may not now be terminated for (1) refusing to violate a law or any well-

established, clearly mandated public policy expressed in the constitution, statutes, regulations

promulgated pursuant to a statute or any rules created by a governmental body, or (2) reporting

wrongdoing to supervisors or public authorities. Moreover, the employee now bears a minimal

burden of showing only that reporting violations of, or refusing to violate, the law was a

“contributing factor” to the employers’ decision to discharge the employee.

Moreover, the Missouri Supreme Court reversed prior precedent that the wrongful

discharge cause of action was not available to individuals employed under contract. Rather, the

2

Missouri Supreme Court now holds that an individual employed through a contractual

relationship with an employer may pursue the cause of action for wrongful discharge in violation

of public policy.

II. Fleshner v. Pepose Vision Institute P.C.

Fleshner serves as the lead case of the Whistle Blower Trio. Michelle Fleshner worked

as an at-will employee for Pepose Vision Institute, a refractive surgery clinic. While she was

employed, the U.S. Department of Labor investigated PVI concerning whether it properly

compensated its non-exempt employees for overtime. During the course of this investigation, a

DOL investigator telephoned Ms. Fleshner at her home and interviewed her concerning

background information about PVI and hours worked by PVI employees. The next morning,

Ms. Fleshner reported the telephone conversation to her supervisor. One day after Ms.

Fleshner’s report, PVI terminated her employment.

Ms. Fleshner sued PVI, claiming, among other things, PVI wrongfully terminated her in

violation of public policy. A jury later found in favor of her claim and awarded her $125,000,

including $95,000 in punitive damages.

The Missouri Supreme Court initially noted that Ms. Fleshner was an at-will employee.

304 S.W.3rd 81, 91. As such, the Court further noted, at-will employees may be terminated for

any or no reason, and – as a matter of law – a discharged at-will employee “has no cause of

action for wrongful discharge.” Id.

However, the Court further noted Missouri’s at-will employment doctrine is not “static”

but may be modified by or through public policy reflected in the state’s constitution, statute,

regulation or rule. Id. at 92. “To find otherwise it will allow employers to discharge employees,

without consequence, for doing that which is beneficial to society.” Id.

3

Thus, the Fleshner Court expressly adopted the public-policy exception to Missouri’s at-

will employment doctrine whereby an employer may not terminate an at-will employee for (1)

refusing to violate the law or any “well-established and clear mandate” of public policy

expressed in Missouri’s constitution, statutes, regulations or rules; or (2) for reporting

wrongdoing or violations of law to superiors or public authorities. Id. Should an employer

terminate an employee for either reason, the Court held the individual would thus have available

a cause of action in tort for wrongful discharge based on the public-policy exception. Id.

Moreover, the Court additionally addressed the causation standard to be applied to claims

of wrongful termination based on this new Missouri public-policy exception to the at-will

employment doctrine. As such, the Court rejected “exclusive causation” as the proper causal

standard to be applied in such cases. Id. at 93. The Court noted its fear that, should “exclusive

causation” be the applicable standard;

… Upon a lawsuit alleging wrongful termination and violation of public policy, the employer could assert that, while the employee’s reporting or refusal played a part in the decision to terminate, the employee was also fired for another reason, such as reporting to work late or failing to follow the dress code. “Exclusive causation” would result in an exception that fails to accomplish its task of protecting employees who refuse to violate the law or public policy.

Id.

Joining what it found to be a “majority of jurisdictions” rejecting the “exclusive

causation” standard, the Missouri Supreme Court adopted the “contributing factor” causation

standard to be applied regarding claims of wrongful discharge based on the public-policy

exception. Id. at 94-95. In this regard, an individual need only show that her refusal to violate

the law or well-established, clear public policy mandate or reporting wrongdoing or violations of

law to her superiors or public authorities was a “contributing factor” in the employers’ decision

to terminate her employment. Id. at 94.

4

III. Keveney v. Missouri Military Academy

Missouri Military Academy employed Michael Keveney as a teacher. Mr. Keveney’s

written employment contract with MMA provided MMA could terminate Mr. Keveney for

cause. In October 2003, MMA terminated Mr. Keveney for cause under his contract.

Mr. Keveney sued MMA, alleging that he had suspected a MMA student was being

physically abused and reported his suspicion to his supervisors so they could report the matter to

the Missouri Division of Family Services. Mr. Keveney alleged his supervisors refused to report

the matter to DFS and told him his job would be in jeopardy if he reported the matter to DFS.

Mr. Keveney’s lawsuit alleged both wrongful discharge and breach of contract. The trial

court dismissed his wrongful discharge claim, and a jury subsequently awarded Mr. Keveney

$13,300 in damages for his breach of contract claim.

In Keveney the Missouri Supreme Court followed its Fleshner holding and extended the

cause of action for wrongful discharge in violation of public policy to employees employed

under a contract. 304 S.W.3rd 98, 102-03. In announcing this extension, the Court listed three

“compelling” reasons to allow contract employees to pursue an action for wrongful discharge in

violation of public policy. Id. at 102. First, the Court explained that limiting the cause of action

to at-will employees “fails to recognize the distinct underlying purpose of the wrongful discharge

cause of action.” Id. While a breach of contract action enforces privately negotiated terms and

conditions of employment, the wrongful discharge action is premised on a conflict “between the

conditions of employment and constitutional, statutory, regulatory provisions that are applicable

irrespective of the terms of contractual employment.” Id. The Court further explained an

employment termination is not “wrongful” because it violates contractual employment terms; a

discharge is “wrongful” because it is based “on the employer’s attempt to condition employment

5

on the violation of public policy expressed in applicable constitutional, statutory or regulatory

provisions.” Id.

To limit wrongful discharge actions to at-will employees, the Court added, implicitly

assumes constitutional, statutory or regulatory interests can be limited through private contracts.

Id. “An employer’s obligation to refrain from discharging an employee who refuses to

participate in or conceal actions inconsistent with public policy does not depend on the terms and

conditions of the employment contract.” Id.

Second, the Court distinguished between contractual remedies and those available for

claims of wrongful discharge. Id. If a contractual employee is discharged for refusing to violate

a public policy requirement, a following breach of contract action satisfies private contractual

interests – by allowing recovery for the amount of income the individual would have earned

absent the breach, less any income earned in the interim – but, the Court explained, “fails to

vindicate the violated public interest or to provide a deterrent against future violations.” Id. at

103. Where an employer’s actions violate an employment contract and clear and substantial

public policy, the Court held that such an employer is liable for two breaches, one in contract and

the other in tort, and it follows “that the employer must bear the consequences of its actions. Id.

Third, the Court found it inconsistent to allow an at-will employee to pursue a wrongful

discharge cause of action while denying a contractual employee the same right. Id. Such an

allowance “illogically grants at will employees greater protection from these tortuous

terminations due to an erroneous presumption that the contractual employee does not need such

protection. Id., citing Smith v. Bates Technical College 139 Wash.2d 793, 991 P.2d 1135, 1141

(2000).

6

IV. Margiotta v. Christian Hospital Northeast Northwest

Christian Hospital Northeast Northwest employed Daniel Margiotta as an at-will medical

image technician. The hospital stated it terminated Mr. Margiotta in 2007 because he had a

violent outburst in which he yelled at co-workers in front of a patient and threw a pillow across

the room, knocking a canister off the wall. Mr. Margiotta alleged he was terminated for

reporting three patient care safety violations to his supervisors in 2005.

Subsequent to his termination, Mr. Margiotta sued the hospital for wrongful termination,

citing federal and Missouri regulations pertaining to general patient safety, 42 C.F.R.

482.13(c)(2) and 19 C.S.R. 30-20(K)(3), the trial court granted the hospital summary judgment

on Mr. Margiotta’s claims.

In Martiotta the Missouri Supreme Court fine-tuned the cause of action’s mandates of a

“well-established and clearly mandated public policy” and reporting violations of law. 2010 WL

444886 *3 (Mo.). Public policy, the Court explained, is not found “in the varying personal

opinions and whims of judges or Courts, charged with the interpretation and declaration of the

established law, as to what they themselves believe to be the demands or interests of the public.”

Id. In re Rahn’s Estate, 316 Mo. 492, 501, 291 S.W. 120, 123 (Mo. 1926). Absent the explicit

authority of a constitutional provision, statute, regulation based on a statute or a rule promulgated

by a governmental body, the wrongful discharge action fails as a matter of law, the Court held.

Id. Additionally, not every statute or regulation gives rise to a wrongful termination action;

vague or general statutes, regulations or rules cannot be successfully plead under this theory

because they “would force the court to decide on its own what public policy requires.” Id.

Regarding an individual’s claim that he was terminated for reporting violations of law or

public policy to his superiors, “whistleblowing,” the mere citation of a constitutional statutory

7

provision is not, by itself, sufficient to state a cause of action, “the Plaintiff must demonstrate

that the public policy mandated by the cited provision is violated by the discharge.” Id., quoting

82 Am.Jur. 2d § 61. Generally, the Court added, there is no whistleblowing protection for an

employee “who merely disagrees personally with an employer’s legally allowed policy.” Id.

Concerning Mr. Margiotta’s claims, the Court held that the Federal regulation, 42 C.F.R.

482.13(c)(2) (“The patient has the right to receive care in a safe setting.”), empowers patients to

assert their right to safety and is, therefore, personal to the patient. No portion of the cited

regulation grants protection to employees or requires specific conduct by an employee such as an

affirmative duty to report violations. Thus, the Court held, this regulation is too vague to support

Mr. Margiotta’s wrongful discharge action.

Mr. Margiotta also cited a Missouri regulation, 19 C.S.R. 30-20(K)(3): “Each hospital

shall develop a mechanism for the identification and abatement of occupant safety hazards in

their facilities. Any safety hazard or threat to the general safety of patients, staff or the public

shall be corrected.” Id. at *5. The Court summarily held this regulation not applicable to Mr.

Margiotta’s claim in that it dealt with building safety, not patient treatment: “Margiotta’s ‘mere

citation’ to this regulation without a demonstration of how the reported conduct violated it

cannot form the basis for a wrongful discharge action.” Id. Finally, the Court concluded it

would not grant an individual protected status for making complaints about acts or omissions the

individual “merely believes to be violations of the law or public policy.” Id.

V. Impacts of “The Whistleblower Trio”

Following the Missouri Supreme Court’s pronouncements in “The Whistleblower Trio,”

the public-policy wrongful discharge claim is now available to all Missouri employees, whether

they were employed as at-will employees or under an employment contract. Former employees

8

may now be more likely to add wrongful discharge claims to other claims they are pursuing

against their former employers. Future courts may be now be more likely to apply the public-

policy exception even in other cases when an adverse action has been taken against an employee.

Lastly, summary judgment in wrongful discharge cases may now be more difficult for employers

to obtain.

VI. What About Kansas?

Wrongful termination claims premised on violations of public policy brought in Kansas

are characterized as “retaliatory discharge” actions, distinguishable from claims alleging breach

of expressed or implied employment contracts, which are characterized as “wrongful discharge”

actions. See Allegri v. Providence-Saint Margaret Health Center 684 P2nd 1031, (Kan. App.

1984).

Kansas Court’s have recognized four retaliatory discharge exceptions in which an at-will

employee may not be freely discharged; (1) for filing a worker’s compensation claim (Gonzalez-

Centeno v. North Central Kansas Regional Juvenile Detention Facility, 278 Kan. 427, 430-34,

101P. 3d 1170 (2004)); (2) for “whistleblowing” (Palmer v. Brown, 242 Kan. 893, 900, 752P. 2d

685 (1998)); (3) for exercising his or her rights under the Federal Employer’s Liability Act

(Hysten v. Burlington Northern Santa Fe Railway Co., 277 Kan. 551, 554, 85P. 3d 1183 (2004));

and (4) reporting incidents of elder abuse (Poull v. Affinitas Kansas Inc., 228P. 3d 441, 2010 WL

1462763 *4 (Kan.App.)).

Kansas’s public policy protection has been extended to cases involving retaliatory

demotions. See Brigham v. Dillon Companies, Inc. 262 Kan. 12, 935 P.2d 1054 (1997).

However, some courts have found no public policies implicated in claims merely alleging breach

9

of an employment contract. See Jonker v. Melvin Simon and Assoc., 1989 WL 31402 (D. Kan.

1989).

VII. What Should Employers’ Do Following the Pronouncement of Missouri’s “Whistle Blower Trio?”

With Missouri’s recognition of the public-policy exception to its at-will employment

doctrine and its further extension of that cause of action to contractual employees, Missouri

employers should

• Review complaint procedures and ethics policies;

• Ensure alternative methods to report possible illegal activity or wrong doing;

• Make clear that employees can make such complaints;

• Train supervisors and managers to receive and respond to such complaints; and

• Review and modify, if necessary, policies against retaliation.

Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Copyright © 2010 Polsinelli Shughart PC.

Documents

[email protected] JAY M DADE · Presentation also given on May 4, 2010. Feb 2010 New EEOC Rules Change Employer Landscape ... Refractive surgery clinic employee reported to employer