Missouri Bill Would Limit Whistleblower Protections

About a month after Democratic Gov. Jay Nixon vetoed changes to Missouri’s workplace discrimination law, Republicans lawmakers are pushing a pair of scaled-back measures that could make it more difficult for workers to seek legal protection for reporting wrongdoing by their employers.

In March, Nixon vetoed legislation that would have required workers who bring wrongful termination lawsuits to prove discrimination was a motivating factor – not simply a contributing factor – in the employer’s action. If an employer were to wrongfully discriminate, the legislation would have capped the amount of punitive damages a plaintiff could recover at $300,000 or less, depending on the size of their former employer.

Leaders in the Republican-controlled House and Senate have conceded they don’t have enough votes to override Nixon’s action. Instead, the GOP is putting forward two bills that narrow who is eligible for whistleblower protection, when whistleblowers could win a lawsuit against their employer and how much money they could recover.

Nixon’s veto message focused mainly on the parts of the original legislation that related to workplace discrimination, though he did take issue with that measure’s whistleblower provisions, saying they would discourage people from reporting wrongdoing at the workplace.

But the GOP has pressed forward on the new bills, which have been endorsed by a House workforce development committee and could be taken up by the full chamber in the coming weeks.

A “whistleblower” is someone who reports wrongdoing at his or her place of employment. People who make such reports are often given protections to ensure that they are not the target of retaliation from their employers. Missouri does not have an official whistleblower law. Instead, the state’s courts have decided who can sue and how much they can recover based on previous case law.

The new bills would limit “whistleblower” status to someone who reports an act at their workplace that is illegal or that clearly violates the state’s “public policy” as expressed in its constitution, laws, rules and regulations. In order to qualify, the employee would have to make a report directly to a government agency, law enforcement or the company’s human resources department.

A worker also could qualify for whistleblower protections if he or she refused to carry out a direct order from an employer that would break the law.

In a similar fashion to the vetoed workplace discrimination legislation, the new measures would require workers who bring lawsuits alleging that they were fired because of their whistleblower status to prove that was a motivating factor in their employer’s action. It would similarly cap the damages they could recover.

Sen. Brad Lager, the sponsor of the Senate version of the workplace discrimination bill, said the original measure was aimed at protecting employers from frivolous lawsuits and making the state more business-friendly. He said that passing the new whistleblower measure would represent at least partial progress toward that goal and that lawmakers may try to pass a discrimination measure again next year.

“If the majority of the Republican caucus in the Senate feels that this is something worth doing, then we’ll move forward,” said Lager, R-Savannah, of the new bills. “The frustrating part for me is the (discrimination) provisions that have been taken out. Those issues are still important. Those problems still exist. Those challenges are not going away.”

Among those opposed to the new measure is St. Louis attorney Jerome Dodson, who said its limitations on what qualifies as a wrongful act could make it difficult for an employee to decide whether he or she should report an employer in the first place.

“I believe it will have an enormous chilling effect upon employees,” Dodson said.

Whistleblower bills are HB2099 and SB592.