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Tim's Missouri Employment Law
By Attorney Tim Willoughby
St. Louis Missouri employment lawyer
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6- Missouri Service Letter 290.140
 
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ARTICLES:

Missouri Service Letter Law RSMO 290.140

Why it is an important Missouri Employee Right

Missouri State Government Employees are NOT covered by 290.140, so this article does not apply to them. HOWEVER: Missouri Merit System Employees have their own Service Letter Rights, under 36.470.

Important notes about 290.140:

  • If you properly request a “service letter” and then the employer fails to make a proper response AFTER you properly requested the service letter, you can sue for damages, including punitive damages in some cases.
  • The Service Letter Law applies whether you were fired or layed off or resigned. You don’t have to be fired to be entitled to request a service letter.
  • The written statement that the employer may have given to you on the day you were fired, seeming to explain why you were fired, is NOT a “service letter.”

Here in Missouri we do not have many laws that are useful to working people, but the Service Letter Law tries to be an exception. By the way, what we call a “Service Letter” is technically called a “Letter of Dismissal” in the body of the Statute itself. See the text of the Service Letter Statute, RSMo 290.140, here

What a Service Letter is and why it is a good tool

If you make a proper written request sent by certified mail, your employer must then do the following thing: Your employer (under the threat of punitive damages) must write you a special letter Truly Stating what cause, if any, for your dismissal or voluntary quit. Your employer must be honest or else pay damages. He can’t falsely claim you were fired for poor performance when you know that the real reason was something not related to your performance. In addition, if you end up suing for Wrongful Termination, you can also sue for a service letter violation if the employer falsely claimed to have terminated you for some legal reason. So the Service Letter Law is a good tool for Missourians.

If you make a proper request and your former employer fails to fully comply with the service letter law, you can sue the former employer for violating the service letter law. A violation might be found if your former employer failed to send you a service letter, or even failed to sign the service letter, or he sent you a service letter but told lies in it. The most common lie is that the employer falsely claims to have fired you due to some form of poor performance or misconduct, when the real reason for your termination was something else entirely.

It is a fact of life in employment law that very often when an employer fires you, he knows that you are likely to raise hell over your termination. So he is not surprised when you make a proper request for a service letter. But he also knows that the reason he gave for your termination, at the time he fired you, is shaky and he can’t prove you actually committed poor performance. So your service letter request places the employer in a predicament: If he tells the same lie in his service letter response, he hands you a lawsuit for a service letter violation. If he gives a different reason in his service letter response, he will be effectively admitting that he told you a lie when you were fired - this makes him an admitted liar. You will be able to use the fact that he is now an admitted liar against him in court if you sue him for a Wrongful Termination.

So how does the employer resolve the predicament? Many employers decide that the best approach is to ignore your service letter request. They chose to face the prospect of paying modest damages for not sending a service letter rather than tell another lie in the service letter response.

When the employer chooses not to respond to a proper request for a service letter, you can sue him.

If the employer responds and tells the same old lie again, or tells a different lie, you can sue him.

You can add the service letter lawsuit as Part II of your Wrongful Termination case, or you can simply sue for the service letter violation all by itself.

Employers have chosen to undermine the original intent of the Service Letter Law -
It’s their own fault when they get sued

The purpose of the Service Letter Law is to help you get re-employed. The service letter should be like a letter of reference, truly stating the nature and character of your employment, such as what job you held, how well you did the job, and stating the true reason for your termination (or the true reason you quit) to show that you didn’t lose your job due to misconduct or poor performance.

If you were fired (rather than layed off or downsized), employers seem to almost never admit in the service letter that they lacked a good reason to get rid of you. Often, employers seem to feel it necessary to make false derogatory allegations of misconduct or poor performance as the reason for your termination. In many other cases, the employer falsely claims “downsizing / job reorganization” because that’s the legal defense strategy they’ve chosen. They might have falsely claimed “downsizing” as the reason for your termination, at the time they terminated you, if they expected that you might come after them for Wrongful Termination or Discrimination, and they’ll repeat the false “downsizing” story in the service letter response. The “downsizing” defense is a tough one to defeat; that’s why employers like to use it. In most of the cases that I see, employers have either falsely “downsized” someone or else “papered” someone for termination, perhaps as a form of Retaliation. In a papering case, the employer may falsely claim in the service letter response that the truthful reason for the termination was the alleged “poor performance” documented in the created paper trail. In a “downsizing” case, the employer “eliminated” your job, but your job actually lives on in some sort of cosmetically changed form.

So employers have chosen to undermine the original intent of the Service Letter Law by concocting bogus justifications (pretexts) for a “without good cause” termination, thereby making it more difficult for you to obtain new employment. Even in a “downsizing” case, the service letter response makes you look bad: If you had been a good valuable employee, would you really have been “downsized or reorganized” (unless a whole department was let go)? When employers choose to lie, you have the right to sue them under the Service Letter Law, and it’s their own fault that they got sued - they are the ones who chose to lie.

When you quit a job due to being unhappy with your working conditions or due to mistreatment, and then you request a service letter, the employer is supposed to truly state why you quit. Employers usually know why you quit (because you usually tell them) but they almost never truly state why in the service letter. This is a violation of the Service Letter Law, and it’s the employer’s own fault if you sue him for refusing to comply with the law. Before you quit a job, please read my article on Constructive Discharge because you have a much higher risk of severely damaging your potential Wrongful Termination case if you quit without getting legal advice first.

Damages for a violation of the Service Letter Law

Damages under the service letter law are very tricky. There are three types of damages technically available in Service Letter cases. The first is Compensatory damages. The second is Punitive damages. The third is Nominal damages.

Compensatory damages are supposed to be available if the employer fails to fully comply with the Service Letter Law. Compensatory damages can be thought of as any out of pocket harm to you, such as lost pay, and any pain and suffering you incur, as a result of the employer’s violation of the law. For one example, if the employer lied about you in the service letter, and a potential new employer demanded to see your service letter and then refused to employ you because of the lies in the service letter, you would seem to have a claim for compensatory damages for your lost pay and for your humiliation and inconvenience. But it doesn’t work like that in the real world. New employers never ask to see your service letter. Employees never show a bad service letter to a potential new employer.

Courts tend to find that if the employer tells lies in the service letter or otherwise fails to comply with the Service Letter Law, then the employer has technically not sent you a “service letter” at all, even though the employer sent you a letter that claimed to be a service letter. When the employer fails to send you a service letter, or sends you a reply that the court says is not a valid service letter, you can’t get compensatory damages. Compensatory damages might only be available if the employer sends you something that the court concludes is in fact a “Service Letter” but that violates the strict provisions of the Service Letter Law. On the other hand, if the employer fails to fully comply with the Service Letter Law, he has technically not sent you a service letter at all, according to the courts. That’s why damages are what I called “tricky.” If the court finds that the employer, for technical reasons, did not send you a service letter at all, then you can get punitive damages, but not compensatory damages.

Punitive and Nominal damages: You can’t get both Compensatory damages and Punitive Damages for the same service letter violation. If the employer does not send a service letter, you can get punitive damages. If the employer actually sends something that the court says is a valid service letter but that otherwise violates the Service Letter Law, you can get Compensatory damages but not Punitive Damages. The term “nominal damages” means one dollar. In order to be able to collect Punitive Damages, the court must first declare that a violation of law occurred, and the court does this through awarding you one dollar in “nominal damages.” When nominal damages have been awarded under the Service Letter Law, then the court can award Punitive Damages as well.

The amount of Punitive damages to be awarded, if any, tends to be on the modest side. Awards of $10,000 or so are represented in the cases, and an award of about $20,000 occurred recently. A few higher awards have occurred in the past, but look for any Punitive damage award to be modest.

Even though the damages are fairly modest in comparison with big personal injury cases, these damages are still significant. If you are suing for another reason as well as suing for a service letter violation, the combined force of the lawsuits can be quite powerful.

NOTE: You cannot win attorney fees in a service letter case.

Requirements to be eligible to demand a Service Letter:

…taken from the Service Letter Law itself …
  • You were a person employed by a “corporation” doing business in Missouri (The Service Letter Law technically does not seem to account for the modern “partnership” business form that is very common today. Some of Missouri’s biggest companies are “partnerships” these days, using the form “L.L.P.” rather than a “corporation” form such as “Inc.” or “L.L.C.” or “P.C.”)
  • You worked at least 90 days for the employer
  • The employer employs at least 7 people
  • You were discharged or voluntarily quit
  • Within a reasonable time, not longer than one year after you left, you make a proper written request for a service letter
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Requirements for a proper request -
The Service Letter Law tells you how to make a proper written request for a service letter
(I offer some additional important tips and a printable request form here) :

…taken from the Service Letter Law itself …
  • Your request must be in writing
  • Address your request to the superintendent, manager or registered agent** of the corporation you used to work for.
    (NOTE: See my Service Letter Instructions article for some tips in determining who your proper “manager” really is for purposes of the Service Letter Law)
  • Your request must make specific reference to the Service Letter Law, RSMo 290.140 (also known as the “Letter of Dismissal” statute)
  • You must send your request by certified mail
  • The employer will have 45 days to respond

** -  A “Registered Agent” is the person that a corporation officially designates with the Missouri Secretary of State to be the receiver for official papers. You can call the Missouri Secretary of State and ask who the registered agent is for your employer’s corporation, or visit the Secretary of State Business Entity Search page on the web [note: the URL of that page changes from time to time, so I’m sorry if the link is busted — Use Google to get the current link] Missouri Secretary of State’s Business Entity database. CAUTION: If you decide to send a Service Letter Request to the registered agent, please also send a second request to your manager.

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What do those requirements mean in the real world when you
sue an employer for failure to comply with the Service Letter Law?

The court will vigorously scrutinize your request for a service letter to make certain you fully complied with the method the law prescribes for making a proper written request. If the court finds a fatal flaw in your request, then the employer was not required to send you a service letter, and so you can’t sue for any alleged violation.

There is no special “service letter form” defined in the law

That’s right, the law does not contain an “official” service letter request form. The law should contain an official form, of course. Instead, people are left to their own devices to try to interpret the law and figure out what the letter should say. Then, when you sue, the employers always try to argue that your request was deficient in some manner. The courts have been flexible in finding that requests are acceptable despite a lot of variation in the wording of the requests.

I am providing a form you are welcome to use if you want

As a public service, I am making available here on the web a Service Letter Request Form that I think will satisfy most judges. Your mileage may vary, and I cannot promise that this form will withstand scrutiny by every judge in Missouri. It’s also possible that if you print it out, something will go wrong during the print process and you won’t get the complete form. Read my instructions carefully before you try to print the form. If anything goes wrong with the printing, you’ll have enough info to probably be able to make a valid request all by yourself.  Here’s my instructions and a blank service letter request form.

Here is the text of the actual service letter law, which I copied
from the Missouri Statutes available from the Missouri Government website:
(Here’s a link to the online version of 290.140 - opens in new window)



Letter of dismissal, when–failure to issue, damages–punitive damages, limitations.

290.140. 1. Whenever any employee of any corporation doing business in this state and which employs seven or more employees, who shall have been in the service of said corporation for a period of at least ninety days, shall be discharged or voluntarily quit the service of such corporation and who thereafter within a reasonable period of time, but not later than one year following the date the employee was discharged or voluntarily quit, requests in writing by certified mail to the superintendent, manager or registered agent of said corporation, with specific reference to the statute, it shall be the duty of the superintendent or manager of said corporation to issue to such employee, within forty-five days after the receipt of such request, a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee was discharged or voluntarily quit such service.

2. Any corporation which violates the provisions of subsection 1 of this section shall be liable for compensatory but not punitive damages but in the event that the evidence establishes that the employer did not issue the requested letter, said employer may be liable for nominal and punitive damages; but no award of punitive damages under this section shall be based upon the content of any such letter.

(RSMo 1939 § 5064, A.L. 1941 p. 330, A.L. 1982 S.B. 747)



(End of quote from statute)
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IMPROVEMENTS NEEDED: The Service Letter Law was passed 60+ years ago. It needs updating to allow for attorney fees if you sue over a violation and prevail. It also needs updating to cover more people, because of changes in how business is conducted. Many businesses are not “corporations” anymore; they are partnerships of various types. The Service Letter Law needs to be changed to clearly allow you to demand a service letter from partnerships. Please consider contacting your State Rep or State Senator and requesting those improvements to the Service Letter Law. See my article on The Sorry State of our Employment Protections for a listing of many other deficiencies in our Missouri Employment Laws.

Article written by | Tim Willoughby


***** END OF ARTICLE *****

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).

Tim Willoughby, Attorney
(Licensed in Missouri)
11414 Gravois Rd., Suite 203
St. Louis, MO 63126
ph:    314-729-7750
fax:   314-729-7799

1.6 miles North of I-270 on Gravois.
... Near I-270 and I-44

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