The sorry state of our
Missouri employment protections
(This page is a work in progress)
Below the Introduction is a Big Clickable List of laws and doctrines. Read the Intro first, please
INTRODUCTION:
What’s here, and how YOU can check up on your legislature
This page will introduce you to some of the deficiencies in our employment protections affecting Missouri residents.
Missouri does not have many employment laws that are beneficial to workers. The laws that are on the books are sometimes laughably weak in this modern day and age. In addition, there are big holes in the lawbooks where good employment protections could be but are missing. Federal laws try to provide basic protections, but there are substantial weaknesses in some of the key Federal employment laws – Missouri laws could be passed to plug the gaps in the Federal laws.
CHECKING UP: Want to see what the Missouri Legislature is Currently up to, regarding employment and labor issues? Want to see if Anyone in the legislature currently cares enough about worker protections to be doing Anything to help? Or do you want to see what new attempts are underway to Weaken your protections? It’s not that hard to check up: See my article on Finding out what employment legislation is currently pending in Missouri.
This Sorry State article contains short-form Bottom Line critiques, not detailed criticisms. Most people don’t care about the details.
SHORT-FORM vs. LONG-FORM Critiques: The article you are reading, about the Sorry State of our laws, contains lots and lots of examples of laws and legal doctrines that are deficient for Missouri’s workers, presented in short form for quick reading. For each of these deficiencies, I could write very long articles. It takes a lot of time to prepare detailed criticisms of laws or legal doctrines, and most people just don’t care about the details – they want the Bottom Line. In this article, you get short-form Bottom Line stuff mainly.
Here’s an example of what a longer-form critique might look like, for those who might be interested, where I took a minor whistleblower statute for Missouri State Government employees and criticized it section by section: The weak whistleblower protections for state employees in RSMo 105.055 (opens in new window or tab).
But for the most part, you’re going to have to be satisfied with the short-form Bottom Line critiques I’ve offered below. Where appropriate, I’ve linked to other articles on the site that contain more info.
Table of Contents:
(Click a Topic for a short description of the problem, and then press your Back button to return here. Or, just scroll down the page and read everything)
Missouri lacks a Wage Payment and Collection Act. There’s no penalty when employers unfairly refuse to pay some of your wages or some of your (non-ERISA) benefits. You can’t even get your attorney fees paid if you sue and win.
See my article on Wage Payment Problems for more detailed info about underpaid wages and being cheated out of vacation time and unused sick leave. Missouri law does not usually allow you to collect any damages or penalty, other than the raw amount of the underpaid wages or some benefits.
What lawyer can afford to sue for you on contingency fee when the total amount of the underpaid wages is, let’s say, $500? That same $500 means that you could not pay some of your bills, and you’re anxious and fearful, so you were damaged and you need some compensation. But you can’t get compensation in Missouri. You can’t afford to pay lawyers to fight this battle, and lawyers can’t afford to take on your case for a contingency fee, and even if you win the employer will not have to pay your lawyer. There is no incentive for lawyers to help you. There is no penalty for the employer cheating you.
Everything changes, of course, and you have more rights, if the employer fails to pay you at least the Minimum Wage for a given week, or fails to pay Overtime or fails to provide an ERISA-qualified benefit. See the FAQ for more info.
You can’t usually get a lawyer unless the amount of underpaid wages is high, or unless the underpaid wages are a form of Retaliation or Discrimination, or unless you have an Employment Contract case or some other type of case that is the lawyer’s primary interest in the matter.
BRIGHT SIDE: If they underpay your final wages after firing you, you have special rights. See my Unpaid Final Wages article.
For fun, and to make yourself cry perhaps, read the Illinois Wage Payment and Collection Act (IWPCA) (opens in new window), and see the Illinois Department of Labor’s pages about the Illinois Wage Payment and Collection Act (IWPCA) (opens in new window). In Illinois, they have some modern employment laws. They are no-nonsense when it comes to employers cheating employees out of their pay and some benefits like vacation pay. Court decisions interpreting the IWPCA have been generous. You can win some damages and attorney fees (under the Illinois Attorney Fees in Wage Actions Act). We desperately need a law in Missouri like the IWPCA.
The Missouri Department of Labor won’t help you collect unpaid wages.
In my Wage Problems article, I answer some questions about underpaid and unpaid wages. The Missouri Department of Labor and Industrial Relations (LIRC) will probably take your complaint about unpaid wages, and will appear to be concerned to see that you get paid. The LIRC might even issue a formal ruling that you are owed the wages. But the LIRC will probably also tell you that it can’t force the employer to pay you. The LIRC tells a lot of people to go see a private lawyer (but the LIRC knows that you probably can’t get a lawyer for small-dollar underpaid wage claims).
Under the Illinois Wage Payment and Collection Act (IWPCA) (opens in new window), the Illinois Department of Labor is expressly given the authority to sue the employer to collect your underpaid wages, or you can sue yourself if you want.
Private employees have no right to see their employee file or personnel file or copy it or correct errors in Missouri.
You have to sue the employer on some legal theory that allows for “discovery” of evidence. Then you can make the employer produce your employee file. Also, the EEOC can get your employee file, and you can get a copy of the EEOC’s file, if you file a charge of Discrimination.
Even if the employer has a Handbook that promises you the right to see your employee file (and that’s very rare) the employer does not have to show you your file in Missouri. Also, even if the employer agrees to show you your personnel file, the employer does not have to show you the entire file. The things you most want to see, such as the secret critical memos and emails between managers, will probably not be shown to you. Savvy employers will not put those things in your “file.” That brings up another point: Just exactly what is a “personnel file”? Missouri has no definition.
Companies are not “bound” to honor most of the promises they make in Employment Handbooks, yet courts may allow employers to use the handbook against you in court
See my article about Employment Handbooks for more details. We need legislation that makes employers honor their handbook promises. Otherwise, the promises are empty paper. Oops. They’re not really empty paper. The employer can use the handbook against you in court.
It’s a double-dose of unfairness: Other than compensation terms, the employer’s handbook promises are not a contract, and are unenforceable. But if you sue the employer, such as for a Wrongful Termination (etc), the court will let the employer use its unenforceable handbook promises against you in court, about such things as fairness policies and complaint procedures, to show that it’s a caring fair employer who has a decent policy of trying to resolve workplace problems and treats people well.
If the employer publishes specific unenforceable promises of, say, a preferred disciplinary policy, and then it violates the disciplinary policy in your case, the court might let you tell the jury about the violation. Although you can’t sue the employer because it violated its preferred disciplinary policy (that’s an unenforceable handbook promise), you can sometimes use the violation in court to show that the employer was so intent on Retaliation or Wrongful Termination that it ignored its own preferred practices.
Savvy companies avoid this trouble by carefully constructing the Handbooks in order to 1) Not make specific promises about things that you can use against them in court, and 2) Say only things that the company can use against you, if you ever sue them.
Also, if you failed to follow the handbook’s complaint procedure, that will probably be used against you in court. So the handbook is not enforceable against the employer, but the employer can use the handbook in court against you. That’s employment law for you.
Handbook promises of pay and specific benefits are enforceable, as I explain in my Handbooks article.
“Summary Judgment” is extremely common in employment cases, more common than in just about any other type of case, and it denies people their day in court.
A lot of employment cases end up in Federal Court, for many reasons, particularly Discrimination cases, FMLA cases, Retaliation cases, and Wrongful Termination cases, etc… Under the Federal Laws, the Federal Courts control things. So the decisions of the Eighth Circuit Court of Appeals control your case, because Missouri is a part of the Eighth Federal Judicial Circuit. The Eighth Circuit has issued a series of decisions which make it relatively easy for your local Federal trial courts to throw out your case and deny you a trial, if they don’t think the case is strong enough.
Most cases settle, but if your case does not settle there will come a time when the judge will take a look at your evidence and decide whether you have enough evidence to permit a jury to hear your case. The statistics I have are not comprehensive, but they suggest that most of the time, that is, greater than 50% of the time (and even more often for some judges) the judge decides that your case is not strong enough and dismisses it. This is called “Summary Judgment.”
Of course, the weaker the case is, then the higher the chance of dismissal, and the stronger the case is, then the lower the chance of dismissal. Statistics are nearly meaningless in any particular individual’s case, but statistics help us understand the process and the risks, as part of weighing the Pros and Cons of Litigation.
Summary Judgment is a sword hanging over the head of every case in Federal Court that does not settle. Employment-related cases are particularly vulnerable to dismissal on summary judgment due to the many complexities and traps in employment law. Up to the point of the Summary Judgment decision, you and your lawyer might have spent hundreds of hours working on the case, and spent a lot of money. Then, you are denied your day in court because the judge feels your case is not strong enough. On appeal, the Court of Appeals usually agrees with the trial judge.
Federal Court judges seem to be much more likely to throw out your case on Summary Judgment than are Missouri State Court judges, but the rules of civil procedure for both Missouri and the Federal Courts permit judges to throw out cases on summary judgment if they desire.
The “Service Letter Law” is dying; it only applies to “corporations” which are becoming less common.
See my article on the Missouri Service Letter Law for more information. The Service Letter Law only applies to “corporations.” But more and more companies are no longer “corporations”; they’re partnerships, due to recent changes in corporate law. So the Service Letter Law is dying a slow death.
Punitive damage awards in discrimination cases are becoming rare, and even when punitives are awarded, the judges will often take them away.
There are two major problems here. First, courts are becoming less and less likely to even allow you to ask the jury to award punitive damages, because the judges are requiring that you have too much evidence of “maliciousness.” Evildoers in the workplace are way too savvy today to give you the type of high quality solid evidence the judges have been demanding recently.
Second, in the past few years, it seems that almost every time a local Missouri employment plaintiff has enjoyed a jury verdict that results in big punitive damages, the various trial courts and courts of appeal have taken steps to reduce the damage award. The courts have legal explanations for what they do, founded in legitimate legal doctrines, but the result is still harsh for employees and discourages meritorious lawsuits.
The courts have cut damage awards by 80% or more in big cases. It’s hard enough for a plaintiff to get a case all the way through the legal system to a jury verdict (only a small percentage ever make it that far). In the few cases that result in plaintiff’s verdicts, there is a 1/3rd chance of reversal on appeal. Now we see that there is a final barrier: Even if you make it all the way, which is rare, and even if your verdict will not be reversed on appeal, the court will likely take away most of your special damages if you had a big victory.
Missouri Tort Reform passed in 2005 which further limits punitive damages. Read my Tort Reform article: HB 393 Missouri Tort Reform.
See also the following sections where I talk a bit more about limitations on damages.
Special immunity from punitive damages #1 – Reference Letter Law.
The Reference Letter Law is RSMo 290.152 (opens in new window). In a nutshell, the law says that if the employer chooses to write a reference letter in response to a request from a potential new employer, and writes it like a Service Letter, and sends you a copy, then the employer is immune from punitive damages if the reference letter lies about the nature and character of your service or lies about the reason you got fired or quit. I talk a little bit about the Reference Letter Law in my article on Defamation.
Special immunity from punitive damages #2 – Service Letter Law.
In my article about the Missouri Service Letter Law, I describe how you can’t win punitive damages if the employer actually sends you a service letter and tells lies in it. You can only win punitive damages if the employer fails to send you a service letter. But when the Service Letter Law was originally passed, the courts let you get punitive damages based on the lies. Then in the 1980s, industry lobbied the legislature to carve out immunity for the lies. Money talks in Missouri politics as it does everywhere in politics in the USA.
Special immunity from Punitive Damages #3 – The courts have carved out an exemption from punitive damages against the State of Missouri or municipalities in Missouri, for Discrimination actions brought under the Missouri Human Rights Act (MHRA). (Contributed by St. Louis NELA member Kristin Whittle)
Even though the MHRA’s definition of “employer” specifically includes “the state, or any political or civil subdivision thereof” (213.010(7) R.S.Mo.), and, the MHRA specifically provides that a court may award punitive damages to a prevailing party (213.111.2 R.S.Mo.), the 8th Circuit has held that you cannot get punitive damages under the MHRA against the state, or any political or civil subdivision thereof: Kline v. City of Kansas City Fire Department, 175 F.3d 660, 669-70 (8th Cir. 1999).
See my Non-Competes article for more information. The lack of regulation allows employers to try to prevent you from working in a too-broad range of jobs. It’s sometimes very difficult to convince a judge that you are going to be unable to earn a living if you honor the non-compete. Judges sometimes don’t want to accept the fact that most employees cannot refuse to sign the non-compete: Employees are desperate for a job, and they’ll sign anything in order to get a paycheck. This is too much power in the hands of employers. The only way to balance that power is through legislation that limits the use of non-competes or limits the nature of the restrictions. Employers also abuse their power with regard to Mandatory Arbitration Agreements (see below).
Lack of regulation of Mandatory Arbitration Agreements in the workplace.
Arbitration agreements are becoming more and more widespread. In a nutshell, here’s the problem. When you are hired, the employer might have you sign an agreement to arbitrate any disputes. If you don’t sign, you can’t have the job. If you do sign, then you lose the right to sue the employer for discrimination or wrongful termination or for just about any other reason. People are desperate for work; they cannot refuse to sign – their mortgage won’t get paid; their kids will suffer. Yet, the laws of Missouri, or rather, the lack of laws in Missouri, permit employers to take unfair advantage of people. There are other major problems with arbitration agreements: Who pays for the arbitration? Does the arbitration agreement limit available damages? and more problems. Good solid worker-protection laws are needed to prevent the abuse of power by employers, and to set minimum standards for fairness if we are to permit mandatory arbitration agreements.
Lack of worker-privacy laws.
In Missouri, there are no meaningful laws restricting how much the employer can intrude on your privacy in the workplace. For practical purposes, you have almost no expectation of privacy in the workplace. We truly need a Worker Privacy Law that provides specific regulation of such things as:
- Social media like Facebook and Twitter
- Medication usage info revealed in drug tests
- Health history and medical problems revealed due to FMLA or sick leave or claims for benefits, beyond HIPAA
- Email and internet usage
- Telephone calls
- Drug testing
- [etc]
Lack of regulation of worker drug testing.
In my Drug Testing article, I talk a bit about how the employer might be targeting you for testing as a form of Retaliation. Why do employers think they can get away with this? Because there are no meaningful regulations or limits on drug testing in Missouri. No doubt, drug testing does a lot of good for society. But I don’t get calls from people who are happy with the way employers handle their right to drug test. Instead, I get calls from people who have been mistreated somehow in connection with drug testing. For those people, meaningful regulation of drug testing would perhaps have made a great difference in their lives. Regulations would limit the ability of employers to use drug testing as a means to commit mistreatment or Retaliation or to try to justify a Wrongful Termination.
Only employees of large employers employing 50 or more persons within 75 miles of the jobsite are eligible for protected medical leave under the Federal FMLA (once they’ve been there for 12 months). See my article about FMLA for more information about how the Federal Family and Medical Leave Act works. Missouri is free to enact its own version of FMLA, providing protected family medical leave for employees of smaller employers, such as those employing 15 or more persons who have been on the job for 90 days or so.
Problems – Without a Missouri FMLA, here’s just some of what happens:
- Companies of every size are quite free to have draconian attendance policies and fire people willy-nilly during the first year of employment if they miss time for sickness or for their child’s sickness (subject to the disability discrimination laws). This is thoroughly unfair and can be easily regulated.
- Companies of less than 50 employees can pretty easily afford to provide unpaid FMLA leave, but they don’t have to under the Federal FMLA law, and most don’t – you get really sick, or your child does, and you get fired. That’s just not fair in these modern times. We’re better than that in Missouri, aren’t we? or are we?
- Employers of less than 50 employees use the lack of mandated medical leave to help create pretextual bogus reasons justifying Workers Comp Retaliation.
- It isn’t clear whether, and to what extent, the Federal FMLA protects the rights of Missouri state government employees. We have a partial answer: The US Supreme Court decided in May 2003 that the Federal FMLA covers state government employees who need leave to care for family members. But the Supreme Court did not decide whether the Federal FMLA covers state government employees who need leave for their own serious health conditions. We need the Missouri Legislature to pass a Missouri FMLA.
- The Federal FMLA is growing weaker as more court decisions occur under it. Courts tend to resolve gray areas in favor of the Company. There are many gray areas in the Federal FMLA.
A Missouri FMLA could be better written than the Federal FMLA and would deal with the known Federal FMLA gray areas, perhaps plugging some holes and giving people stronger medical leave rights.
NOTE TO POLITICIANS OF BOTH MAJOR PARTIES: Your constituents Love FMLA. It’s one of the most popular employment protections around. Extend FMLA and blow your horn. People will think better of you. My two cents.
See my article, Workers Comp Retaliation, for more information about the “exclusive cause” standard that almost no one has been able to meet. We need an amendment to the Workers Comp Laws to set a reasonable legal standard and reverse some unfavorable court decisions that have cut the heart out of the Workers Comp Retaliation protections in Missouri. We need an appeals tribunal similar to the tribunal for unemployment cases, for terminations arising during periods of recuperation from workers comp injuries. Companies fire people for filing workers comp claims all the time, using all sorts of slick tricks and pretexts to circumvent the “exclusive causality” standard of proof and create an alternative reason allegedly justifying termination. If you file a comp claim and get fired, you’ll have a very tough time getting a contingency fee lawyer most of the time due to the unfavorable court decisions in effect in Missouri at this time.
Prior to January 1, 2009, very few people qualify as “disabled” for purposes of the employment protections of the Americans with Disabilities Act (ADA). Amendments are trying to fix this.
Read about the 2008 ADA Amendments to take effect Jan 1, 2009
It will take YEARS for all the old ADA claims to work their way through the system. Therefore, the following critique of the ADA remains useful. But for discrimination that occurs after Jan 1, 2009, the following critique is no longer valid.
Prior to January 1, 2009, few employees could get a contingency fee lawyer to take on an ADA case, because few employees could qualify as disabled. Few could “walk the tightrope”. The amendments hope to eliminate the tightrope. The tightrope is this: Most people are too disabled to be covered, or not disabled enough to be covered. To be covered by the ADA at work you have to be quite disabled, yet remain able to do the job. The more disabled you are, the more likely you will NOT be covered at work, because you cannot do the “essential functions” of the job even with a reasonable accommodation. Those who remain functional despite their disabilities are not likely to be covered by the ADA because they are “not disabled enough” – they are not “substantially” limited in a major life activity – even though they are somewhat limited in many life activities.
For discrimination cases that arose prior to January 1, 2009, you have to be “substantially” limited, and also able to do the “essential functions” of the job with accommodation, but this combination of limitations and functions is a real tightrope, and almost everyone falls off on one side or the other.
So who is qualified as “disabled” and protected by the pre-2009 ADA’s employment provisions? With few exceptions, no one knows. Lawyers don’t know. The EEOC doesn’t know. It’s all up to the judge. These cases are very expensive to prosecute because they require medical and occupational experts on both sides of the case to testify about your limitations and ability to function on the job. In the end, judges usually conclude you are not covered by the ADA because you are either too disabled or not disabled enough, and therefore you can’t sue, and they throw out your case on Summary Judgment.
Pre-2009 ADA plaintiffs have a somewhat better chance if their case includes a Retaliation claim, such as retaliation for complaining about the employer’s unwillingness to accommodate a disability, or complaining about co-workers creating a discriminatory hostile environment against the person who has the disability, etc.
It’s getting to the point where you need to be a lawyer to make a good enough Complaint so that you gain protection against Retaliation.
Due to the lack of standards for such complaints in the laws themselves, the courts were forced to fashion such standards. Courts, generally, resolve these gray areas in favor of the Company, for highly technical legal reasons. Accordingly, courts have established doctrines which they apply to decide whether an employee’s complaint rises to the level of protecting the employee from Retaliation. And, the courts have standards for determining when an employee might lose his protection against retaliation. The standards endorsed by the court provide too much wiggle room for Companies to try to get the court to conclude that the employee does not enjoy protection against retaliation, or that the employee lost his protection. I wrote my article about Making Complaints to try to alert people to the traps.
Government employees lose their rights far too easily by falling victim to extremely short deadlines and cumbersome procedural hurdles.
Government employment is supposed to be special, and supposed to be more secure than private sector employment. But in practice, Government Employees often don’t get the benefit of the special rules that are supposed to provide such increased level of security. See my article about Government Employees for more information. Government Employees have to be extremely quick on the trigger when it comes to making complaints or filing actions, or else they run a high risk of losing important rights that make government employment more secure than private sector employment. This is unfair to government employees. The procedural hurdles are too complex, and the deadlines are too short. An overhaul of the system is needed. For Federal Employees, the situation is even worse than for Missouri employees, in that Federal Employees can lose their right to claim discrimination much faster than can private sector employees.
The Missouri Human Rights Act cuts off Age Discrimination protection at age 70, unlike the Federal Age Discrimination laws. (Contributed by St. Louis NELA member Kristin Whittle)
What more is there to say?
FIXED problem about jury trials in State Court for discrimination cases
Until January 28, 2003, you could not get a jury trial in Missouri State Courts under the main Missouri anti-discrimination law. But thanks to the Missouri Supreme Court’s decision on 1-28-03, you can now get a jury trial under the Missouri Human Rights Act (MHRA).
The inability to get jury trials was a long-standing complaint of mine here in this Sorry State article. The lack of jury trials under the MHRA caused us to have to sue under the Federal discrimination laws. When people sue for Discrimination, they usually sue under at least two sets of laws, Federal and Missouri, IF their employer is big enough to be covered by the Federal laws. The Federal discrimination laws allowed for a jury to hear your case and decide damages.
But our Missouri courts had decided long ago that the Missouri discrimination law did not permit a jury to hear your case. Unless you also sued under the Federal discrimination laws, your case would be tried to a judge. Historically, you cannot expect a judge to be as upset as a jury might be over the illegal treatment you received. You can expect that a judge will be stingier with damage awards. Judges hear about mistreatment all the time every day. Common sense would seem to tell us that judges are just not likely to get as upset as a jury would be in hearing the same evidence.
Now, with the new Supreme Court decision allowing jury trials, employment plaintiffs have more options. Maybe lawyers will not sue in Federal Court so often, where the sword of Summary Judgment comes crashing down with great regularity, destroying cases.
Check back sometime and see if I’ve added to this list. If you are a lawyer, how about writing a few paragraphs about your favorite deficiencies and sending them to me?
How you can help fix Missouri’s
bad employee laws
The best thing you can do is to vote for candidates who support a wide variety of workplace fairness and justice principles for the ordinary people who go to work every day. Such candidates have your best interest at heart, and they are more beholden to you and your real-life concerns than they are to big business. I talk more about this stuff in a little political primer that you might find interesting, Politics and Employment Law.
Article written by | Tim Willoughby
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City.
He is a member of the Missouri Bar Association and Kansas Bar Association.
Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City.
He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
