House Committee approves employment law reform bill

The House Special Committee on Litigation Reform, chaired by Rep. Bill Lant, advanced the employment law reform bill on a vote of 8-5 on Monday. Republican Rep. Bill White and Republican Rep. Don Phillips joined the three Democrats on the Committee in voting against the bill. The bill, SB 43, sponsored by Sen. Gary Romine, aligns the standards used in discrimination cases in state court with the standard used in federal court and provides true whistleblowers with protection from retaliation while ensuring such whistleblowers are truly “blowing the whistle” on illegal activity. The bill also mirrors federal law by including limits on the amount of certain damages depending on the size of the employer.

Associated Industries of Missouri president/CEO Ray McCarty testified in support of the legislation at the hearing last week and was on hand for the vote.

“Employers should be pleased that a majority of the Committee members rejected false arguments put forth by some members of the Committee,” said McCarty. “It was obvious the lobbyists for the plaintiff’s attorneys were able to convince even some Republicans the bill had errors. We believe the language in the bill is sound and will withstand challenge,” he said.

In essence, the bill would allow innocent employers to defend themselves in state court using the same standards used in federal courts. The current system places the burden of proof on employers when the employee is a member of a protected class. “This results in a ‘guilty until proven innocent’ scenario for the employer. This long overdue bill will fix this unfair situation by using the federal ‘motivating factor’ standard. Employers that violate the law and take action against an employee because of that person’s status as a member of protected class will continue to be liable for discrimination claims, and rightfully so,” said McCarty.

The bill also prevents the practice of naming a supervisor as a defendant for the purposes of choosing the most plaintiff friendly court environment. The bill would ensure the employer remains liable for discrimination charges, as is the case today. But supervisor liability would be eliminated.

During the hearing, several amendments were proposed.

Democrat Rep. Gina Mitten, the Assistant Minority Floor Leader and ranking minority member of the Committee, offered an amendment to eliminate a provision of the bill that says that a person may not claim whistleblower protection simply because their job requires them to report situations or events to their superiors as part of their regular job duties. The amendment failed on a voice vote. Later, a similar amendment was offered by Rep. Bill White, and that amendment also failed on a voice vote.

Democrat Rep. Steven Roberts offered an amendment that would have removed language excluding supervisors from liability. Rep. White argued in favor of the amendment. Rep. Kevin Corlew stressed that nothing in the bill would prohibit a private cause of action against a supervisor by a victim. He explained although the provisions of the bill are the exclusive remedy for employment-related claims, the exclusion would not apply to criminal or other causes of action outside the employer-employee relationship. The amendment failed on a vote of 4-9, with Rep. White the only Republican voting for the amendment.

Rep. White offered an amendment that would have removed provisions of the law stating that the protections in the bill and other provisions in the Workers’ Compensation Law and general employer/employee statutes were the exclusive remedy for damages “arising out of an employment relationship.” Rep. White and Democrats on the Committee argued that provision would prohibit lawsuits for violent crimes, while Rep. Corlew and others argued the provision would only impact claims within an employment relationship and would not impact such lawsuits brought outside employment law. The amendment was rejected on a 4-9 vote with Rep. White again being the only Republican in support.

Rep. Mark Ellebracht offered an amendment to change the “motivating factor” standard in the bill. That amendment was defeated on a 3-10 vote with only Democrats supporting the amendment.

Rep. Roberts offered an amendment to add a new protected class for sexual orientation and gender identity. That amendment failed on a 3-10 vote as well.

The bill was advanced to a rules committee without any changes. It is expected to be ready for the House floor soon.