Jerry M. Hunter speaks on KMOX’s Charlie Brennan show about SB 43

Bryan Cave attorney, labor expert, and Second Vice Chairman of the Board of Directors of Associated Industries of Missouri, Jerry M. Hunter, appeared today on the Charlie Brennan show on KMOX to discuss SB 43 and the recent NAACP travel advisory based, at least in part, on the passage of that bill.

You may listen to the podcast on the KMOX website by following this link.

Mr. Hunter emphasized the standard for proving discrimination in employment and housing cases contained in SB 43 is the “motivating factor”- the same standard observed in federal courts in Missouri and the same standard used in state courts from 1984 to 2007. That year, the Missouri Supreme Court changed the standard, without legislative authority, to a “contributing factor” standard. This essentially shifts the burden of proof to the employer. He further explained some cases under federal law observe an even higher burden of proof: the “but for” standard: “But for” discrimination, the action at issue would not have been taken.

He pointed out the Missouri Human Rights Act deals only with employment and housing and has nothing to do with travel.  He also stated the Equal Employment Opportunity Commission (EEOC) had notified Missouri that the new law is acceptable under federal standards.

When asked about the standard used in other states, Hunter mentioned two states in particular: California, which observes a “substantial motivating factor” standard; and Maryland, the headquarters for the NAACP, which observes the “motivating factor” standard.

Mr. Hunter stated he had been interviewed by reporters for St. Louis Public Radio and CBS News (see my other story for our experience with CBS News). Neither presented the employer side of the argument, contained in his comments, to their listeners and viewers.

Associated Industries of Missouri applauds Charlie Brennan and KMOX for allowing Jerry Hunter to tell the “rest of the story.”

 

 

 

 

“Fake news” or unfair reporting?

By Ray McCarty, President and CEO, Associated Industries of Missouri

We received a call Tuesday, August 1, from a CBS Evening News producer wanting to do a story on Senate Bill 43, the employment law reform bill we helped pass in the last legislative session. Specifically, the producer said the story was on the NAACP’s travel advisory.

We agreed to be interviewed by them and they brought a very professional crew into our offices. Ms. Jericka Duncan, an Emmy-nominated CBS News correspondent from New York interviewed me about the bill. She could not have been more professional in her questions and we answered all her questions during the interview.

I emphasized throughout the interview that SB 43 had nothing to do with travel through Missouri and we were curious as to why the NAACP had issued the travel ban. The bill affects only the relationship between employers and their employees and institutes the same standards used in Missouri prior to a 2007 Missouri Supreme Court decision. The bill also uses the same standard used in federal discrimination cases in Missouri and in state courts in many other states. We also explained the caps on damages contained in the bill were very similar to caps on damages in discrimination cases brought under federal law. And the fact the sponsor had filed this bill years before any discrimination charges were ever levied against his business.

Throughout the interview, we gave a reasonable assessment of the bill and its true impact: to reduce frivolous discrimination lawsuits against employers by requiring the plaintiff prove discrimination motivated whatever action was at issue. The bill was necessary because of the Missouri Supreme Court’s previous interpretations that a plaintiff show discrimination was only a “contributing factor” in the employer’s action, shifting the burden of proof to the employer to prove themselves innocent. We explained this bill restores the “innocent until proven guilty” protection for innocent employers and continues to allow those that are truly discriminating against employees to be punished.

We watched as the interview was properly uploaded to New York and was acknowledged as received. The producer explained the story may run later that same day on the CBS Evening News, or perhaps the following morning. Altogether, we spent a couple of hours with the correspondent and crew.

I watched the story on the CBS Evening News that evening, which you may also watch here.  I was surprised that despite our lengthy interview explaining why travelers through Missouri were not affected by the bill, only the NAACP’s views were carried in the two taped interviews they ran in the program: Nimrod Chapel, Jr., president of the Missouri NAACP (and a plaintiff’s attorney that sues businesses); and Pat Rowe Kerr, who recently won a discrimination lawsuit against the state of Missouri. Only one sentence at the end of the article carried our point of view, a brief mention that Governor Greitens said the bill would implement the same standard used by the EEOC in evaluating federal discrimination claims.

Later Tuesday, I received a message from the producer that the story had been bumped for the following morning so they would not be using the footage they shot at our location.

Of course, we have been interviewed by many in the news media before and I am very aware that only a minute or less of the footage is usually used out of an hour long interview. I have resisted writing about this for fear it may look self-serving, so let me be very clear: I don’t care whether they used the footage or not, but it would have been a fair, balanced story if they had at least used the points I made in our lengthy interview. But that did not happen.

No wonder people cannot believe the media version of events. Good journalism should provide balance in a story. We provided the facts, and they were ignored. This is another example of how viewers’ attitudes about subjects are often affected by the news media – and why it is important for all of us as viewers to ask ourselves if what we are viewing is the whole story.

For the record, SB 43 does nothing to impact travel in the State of Missouri. If you would like to read the new law, you may click here for the full text and read it for yourself. The bold language is new language that is added to the law in the bill and language in brackets is deleted by the bill. The law revision is effective August 28, 2017.

EMPLOYERS BEWARE: “Ban the Box” arrives in Missouri

A new concept in employment law sweeping the nation has arrived in Missouri, signaling the end of the criminal background check in the pre-employment process.

The movement is called “Ban the Box”, as in the box on an employment application that asks if the applicant has been convicted of a major crime. Liberal politicians see the question as limiting the ability of a person convicted of a felony from acquiring work, which they believe causes offenders to relapse into a life of crime.  Employer advocates, like Associated Industries of Missouri, have warned that employers must be able to check the backgrounds of potential employees to protect their other employees and provide a safe work environment and that eliminating the question from early in the process at the very least wastes the time and resources of the employer and the potential employee.

So far, five states and more than 60 local jurisdictions have made it illegal to conduct criminal background checks on job applicants until late in the hiring process, often until after the business has offered the applicant a position.  Usually, however, the prohibition applies to public employment in government jobs.

The city of Columbia is the latest to enact a version of the legislation. It’s city council Monday night unanimously approving an ordinance prohibiting private sector employers from asking applicants about criminal histories or conducting background checks before making a conditional job offer.

The Columbia council’s stance on the issue was summed up by Councilman Ian Thomas.

“I think our criminal justice system has a lot of flaws in it,” said Thomas. “That system disadvantages the same people over and over again.”

This week, State Senator Jamila Nasheed filed Senate Bill 44 that makes it unlawful for any company in the state with six or more employees to conduct a criminal background check before an applicant receives a conditional offer of employment. Sen. Nasheed’s bill also specifies that employers may not disqualify applicants at any point in the hiring process if the applicant committed a felony 10 years or more previous, or a misdemeanor five years and more ago. The bill also stipulates that the crime must “bear a rational relationship to the duties of the position” in order for an employer to withdraw a job offer.

The “Ban the Box” movement is a new danger to the business community. It takes away the principle of hiring at will, and exposes companies, their customers and employees to possible crimes. The law makes workplace safety the responsibility of the employer, but ordinances and laws such as these tie the hands of responsible employers.

“It should be left up to individual business owners how they conduct their business and who they hire,” said Ray McCarty, president of Associated Industries of Missouri. “Often, discussing the circumstances surrounding an applicant’s conviction can prove to be beneficial both for the company and for the applicant.”

“The ‘Ban the Box’ laws take away that choice and the chance for a reformed individual to explain the circumstances surrounding the offense.  A potential employee could explain steps they have taken to rehabilitate, or other factors the employer may wish to consider, in the interview process, but the ordinance and this law would take that chance away.  In fact, the Columbia ordinance would prevent an employer from checking publicly available sources of information for criminal histories, which are available to all citizens.  Employers violating such ordinances or laws could be liable for lawsuits, which we believe is the real impetus behind this movement.  It is not only bad public policy – it is dangerous for employers and employees,” said McCarty.

AIM opposes legislation setting up new protected class

While it makes good business sense for employers to enact policies prohibiting discrimination against employees on the basis of their sexual orientation, Associated Industries of Missouri does not believe the state needs new laws that establish a special class under the Missouri Human Rights Act.

That was the message delivered by AIM president Ray McCarty Thursday during a committee hearing on HB 1930 , sponsored by Rep. Kevin Engler (R-Farmington). The bill would prohibit discrimination based on sexual orientation or gender identification.

The bill also codifies the very low “contributing factor” standard for all discrimination cases. AIM endorses the “motivating factor” standard used in the federal human rights act. Although the words, “motivating factor” are used in the bill, the words describe the contributing factor standard.

“We know many of our employers have policies that protect employees against discrimination on the basis of their sexual orientation, and we never want employers to improperly discriminate against any employee,” said McCarty. “But having a company policy is very different than creating a new protected class in statute that will invite an entirely new line of lawsuits against employers.”

The bill received a hearing in the House Workforce Development and Workplace Safety Committee, but the committee did not take immediate action on the bill.

Busy Week in Missouri’s Capitol With 3 Weeks Left

April 27 – The legislature has just three weeks to resolve differences and pass several important issues.  And while the clock continues to “tick”, progress was made on several fronts this week.

The Missouri Senate passed their version of the 2013 state budget, following lengthy filibusters and unusual recesses that allowed senators to rewrite certain parts of the budget (click here for more details).  The budget has been reported to the Missouri House.  The House could simply pass the Senate versions of the bills, although I don’t believe this has happened in recent memory.  More likely, the House and Senate will appoint “conference committees” to work out the differences between the House and Senate versions of the budget bills.  Some items that were funded exactly the same in both budgets are normally excluded from future changes, although these items may be changed by special motions made in both chambers.  The budget must be approved by May 11.

The Missouri House this week passed HB 1403, a bill that would address two issues in worker’s compensation and reform the Second Injury Fund.  The bill may be used as a vehicle for compromise legislation we are developing now on all three issues.  Associated Industries of Missouri is joining other business advocacy groups in a united effort to negotiate a compromise with trial attorneys, organized labor and Governor Jay Nixon’s office.  “Employees and employers benefit from the no-fault worker’s compensation system,” said Ray McCarty, president of Associated Industries of Missouri.  “Beginning in 1919, Associated Industries engaged labor and trial attorneys in negotiations that led to passage of Missouri’s first worker’s compensation law in 1925.  Recently, the worker’s compensation system in Missouri has been turned on its ear by lawsuits,” McCarty continued.

Occupational diseases have always been covered by worker’s compensation insurance – that is until trial attorneys got involved.  These trial attorneys victimized employers with multimillion dollar lawsuits in civil court by claiming the 2005 revision of the worker’s compensation law was not meant to cover occupational diseases.  Trial attorneys have also been filing lawsuits against fellow employees on behalf of employees injured in workplace accidents.  At the same time, the trial attorneys have expanded coverage of lifestyle conditions and non-work related injuries that cause more to be paid from the state’s bankrupt Second Injury Fund.  The Missouri legislature passed bills earlier this session that would have corrected two of these issues (co-employee liability and occupational diseases) and Governor Nixon promptly vetoed the legislation.

The bill was also heard and approved by the Senate Committee on Small Business and Insurance, after removing the Second Injury Fund provisions.  The bill is on the Senate calendar, awaiting full Senate debate.

Governor Nixon also vetoed employer supported legislation that would have updated Missouri’s law to comply with federal standards currently in place for workplace discrimination claims.  The House this week passed a bill that addresses one part of this legislation: a law that would provide protection for whistleblowers that are notifying authorities of actual wrongdoing by their employer.  Associated Industries of Missouri continues to work hard to pass this legislation and hope Governor Nixon will sign the bill if we are successful in getting it to his desk.  Amendments added in the House would apply the new whistleblower protections to all employers except state and local government.

Both the House and Senate will soon begin wo work on bills that originated in the other chamber.  The 2012 regular legislative session ends at 6:00 p.m. on May 18.

Associated Industries of Missouri Supports “Whistle Blower” Reform

April 11 – AIM President Ray McCarty testified before a House Committee yesterday in favor of two bills that would reform protections for employees claiming “whistle blower” protection under Missouri’s employment law.

While many committee members expressed agreement with at least some components of HB 2099, a bill that reforms only the “whistle blower” statutes, vigorous discussion ensued when the committee opened testimony on SB 592, a broader bill that aligns Missouri’s discrimination laws with federal discrimination laws on the books today.  AIM and other business groups have endorsed both changes, but testified in support of the narrower bill in an attempt to reform at least the whistle blower provisions.  McCarty stressed to committee members AIM’s support of the narrower bill on whistle blower, but also explained and answered many questions regarding the discrimination provisions in SB 592.

Governor Jay Nixon vetoed HB 1219 last month.  That bill addressed both discrimination and whistle blower reforms.  It is unclear whether the Governor supports the more limited bill dealing with only the whistle blower issues.

Under current law, employees may claim whistle blower protection even if they are alerting authorities to an action by the employer that is not illegal or in violation of regulations or public policy.  The bill would clarify that protection is available to employees, but only if the company is contemplating an action that would violate the law, regulations or public policy.

The hearing on the bills will be continued.

Senators Amend Employment Law Reform Bill

January 27 – The Missouri Senate adopted one amendment to the Employment Law Reform bill and rejected several others in debate Wednesday evening.  You will recall from previous blog articles that this bill would change the standard to prove discrimination from the current “contributing factor” to a “motivating factor” standard, meaning the employer took the action because of the protected criterion of the employee.  For example, plaintiff’s attorneys currently can claim the employer obviously knew the employee was female and that fact must have played at least 1/1000 of a percent in the decision of the employer to take action against the employee.  The employer is left trying to defend themselves that the fact the employee was a woman did not enter into the decision to dismiss the employee, but it is very hard to prove in court with this low standard of proof.  Our bill would use the federal standard for such cases, requiring the plaintiff to prove the employer was motivated by discrimination when dismissing or taking other action against the employee.

The first amendment, proposed by Sen. Victor Callahan (D-11), would have excluded age discrimination cases from the change to “motivating factor”.  In effect, this change would have meant that plaintiffs alleging age discrimination would continue to enjoy the lower standard of proving age was a “contributing factor” in the employer’s decision to dismiss the employee – a much lower standard than is required under the federal law. The amendment was defeated on a 8-25 vote that fell along party lines, with Republicans opposing the amendment and Democrats supporting the amendment.

A substitute amendment for the second amendment (which we will examine in a moment) would have removed the “motivating factor” language altogether, essentially defeating the purpose of the bill.  That substitute amendment, proposed by Sen. Jolie Justus (D-10), was defeated on a voice vote.

The Senate adopted Senate Amendment 2, sponsored by Sen. Bob Dixon (R-30).  The amendment would exclude cases alleging “disparate impact” from the change to the “motivating factor” standard.  A “disparate impact” violation occurs when an employer takes an action or adopts a policy that appears to be neutral but which causes a substantial adverse impact on a group that is protected under the discrimination laws.  The employer that is accused of “disparate impact” must show that the action or policy served a legitimate business goal of the employer and was not intended to be discriminatory.  It is our understanding that in these cases, the case law already places the burden of proof on the plaintiff to produce evidence that proves the employer’s practice or action was not in furtherance of their legitimate business goals, so this amendment does not appear to negatively impact employers.  The amendment was adopted on a unanimous voice vote.

Before wrapping up debate on the bill, Sen. Lager offered Senate Amendment 3 which clarifies that the damage caps in the bill would not apply to housing discrimination cases – a point that opponents had claimed would have caused the bill to be noncompliant with federal law.  Sen. Lager’s amendment was pending when the Senate ended debate this week on the bill.

More action on the bill is expected next week.  You may recall Governor Jay Nixon vetoed similar legislation last year.  It is our hope we can pass the bill and that the Governor will either sign the bill, or we will succeed in obtaining the necessary votes to override his veto this year.  We will keep you posted of developments.

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