During its legislative sessions in both 2015 and 2016, the Missouri General Assembly passed a right to work law. In each instance, then Governor Jay Nixon vetoed those laws, and the legislature’s backers of those laws lost veto override votes.
Similarly, since a Missouri Supreme Court’s decision in 2007, the Missouri legislature has made repeated attempts to amend the Missouri Human Rights Act (“MHRA”) to counteract the effects of several supreme court cases. In both 2011 and 2012, however, Governor Nixon vetoed laws amending the MHRA, and the legislature again lacked the votes to override his vetoes.
The results of the November 8, 2016 election eliminates the obstacles to the enactment of both the right to work law and MHRA amendments. Republicans now control not only majorities in both the Missouri House and Missouri Senate, but also the governor’s office. In his state of the union address, Governor Eric Greitens voiced his support for a right to work law and legislation reforming civil lawsuits.
House and Senate Right to Work Bills Pass
The legislature has moved quickly to introduce both right to work legislation and MHRA amendments. The Missouri House has already adopted House Bill No. 91, a right to work bill, by a vote of 100 to 59 on January 19, 2017. The Missouri Senate enacted a companion right to work bill, Senate Bill No. 19 on January 26, 2017 by a 21 to 12 vote. Both House Bill No. 91 and Senate Bill No. 19 prohibit employers from requiring employees to join a union, to remain a union member, to avoid becoming a union member. Similarly, they forbid employers from obliging employees to pay any one or more of union dues, fees, assessments, other charges, or payments in lieu of them to a charity or other third party as a condition of employment. Both bills void any agreements between employers and unions contrary to the prohibitions that they impose on employers. They also make any violation of the law a class C misdemeanor. The bills further create a private right of action to enable any persons injured by violations of the law to obtain injunctions against violators and to recover both damages and attorneys’ fees from them. Unlike the House Bill, Senate Bill No. 19 excepts any agreements between employers and unions made before the right to work law takes effect. This exception, however, ends upon the renewal, extension, amendment, or modification of any such agreement after the law becomes effective on August 28, 2017. The House and the Senate must reconcile their bills to eliminate any discrepancies between them before the bills can become law.
Presumably, the House and the Senate will reconcile their bills and the right to work law will take effect on August 28, 2017. From that point forward, union agreements entered or renewed must omit union security clauses that require employees to join the union and to maintain union membership as a condition of employment. Similarly, collective bargaining agreements entered or renewed after August 27, 2017 must lack any provisions that require employees to pay union dues and other fees. If the reconciliation process eliminates the Senate’s exception for existing labor contracts, then the law would make their union security clauses and mandatory union dues and fees provisions invalid immediately when the law takes effect. If some or all employees, however, either before or after August 27, 2017 sign dues check off authorizations, the law would have no effect on them. Consequently, employers would have an obligation to withhold union dues from such employees’ wages and pay them to their unions until either the expiration or revocation of such dues check off authorizations.
House and Senate Consider Bills to Amend the Missouri Human Rights Act
The Missouri House Bill No. 550 and Senate Bill No. 43 propose substantially the same amendments to the MHRA. The amendments have the overall aim to make the MHRA’s interpretation and application more like federal employment discrimination laws. The amendments would change the threshold level of proof of discrimination. Currently, an employee must show that an unlawful factor, such as race, involved a “contributing factor” in an employer’s decision to implement an adverse action against her or him. The amendments would raise the threshold level of proof to a “motivating factor,” the standard that federal courts apply to claims alleging discrimination in mixed motive cases under Title VII of the Civil Rights Act of 1964 (“Title VII”). They would also eliminate the current law’s imposition of liability against individuals acting on behalf of an employer-entity, such as owners, executives, managers, and supervisors. The amendments also declare the Missouri Supreme Court decisions that recognized the “contributing factor” standard of proof and individual liability under the MHRA and that rejected the persuasiveness of federal court cases interpreting federal employment discrimination laws in MHRA cases to be invalid as precedent in MHRA cases.
In addition, the bills to amend the MHRA limit the damages that a prevailing employee can recover. First, they impose no limit on monetary awards for to back pay plus interest. Second, they place the following caps on the total amount of all other damages, such as those awarded for any one or more of emotional distress, future lost earnings, or punitive damages to (a) $50,000 for employers with six to 99 employees, (b) $100,000 for employers with 100 to 199 employees, (c) $200,000 for employers with 200 to 500 employees, and (d) $300,000 for employers with 501 or more employees. The bills further eliminate awards of punitive damages against public employers.
The amendments, furthermore, overrule existing case law that allows courts to refuse to instruct juries about an employer’s right to make business decisions that affect an employee adversely. They, instead, require courts to give business judgment jury instructions if employers requests them. Such instructions tell the jury that it cannot second-guess an employer’s business judgment even if it believed the employer had made a wrong or unfair decision. The jury can impose liability for violating the MHRA only if unlawful either discrimination or retaliation, or both, motivated the employer’s decision.
The Proposed Legislation Creates a New Whistleblower Protection Act
The same bills that amend the MHRA also replace all existing common law wrongful discharge and retaliatory discharge claims by a new Whistleblower Protection Act. They prohibit employers from discriminating or retaliating against a “protected person.” The bills define “a protected person” as a member of any of three categories. First, an employee who reports either unlawful conduct by an employer, or its agent, to proper authorities or serious misconduct in violation of a clear mandate of public policy by an employer or its agent to the employer meets the definition of a “protected person.” Second, an employee who refuses to follow an employer’s directive that, if implemented, would violate the law also satisfies that definition. Third, an employee who has acted in a manner protected by statute or regulation fulfills the definition. The bills prohibit employers from firing or retaliating against a protected person because of her or his protected person status. The bills allow protected persons to sue employers on such whistleblower claims to recover lost wages, reimbursement of medical bills, liquidated damages in an amount equal to her or his lost wages and reimbursed medical bills, court costs, and reasonable attorneys’ fees. To recover such damages, an employee must show that her or his protected person status involved a “motivating factor” in the employer’s decision to dismiss or discriminate against her or him.
The enactment of the right to work legislation will undermine the business model of labor unions. No doubt, unions will collect much less revenue in the form of dues from members of the collective bargaining units that they represent. The reduced revenue will also hamper the ability of unions to fund their organizing activities, to support political causes and candidates financially, and to pay for other activities.
The legislature has pursued the amendment of the MHRA and enactment of the Whistleblower Protection Act to reduce both the likelihood of employment lawsuits and the downside liability posed by them. Only time and experience will tell whether they achieve the desired results. Juries may view a “motivating factor” and a “contributing factor” standards of proof as a distinction without a difference. The limitations on damages awards, however, will inevitably and greatly reduce the downside liability of MHRA and whistleblower lawsuits.