The well-known rule in Missouri is that an employee can be terminated at any time for good reason, bad reason, or no reason at all. The “Employment At-will” doctrine, as this is known is not, though, without exception. In addition to the various statutory exceptions such as the Missouri Human Rights Act, the Americans with Disabilities Act, and the Family Medical Leave Act, Missouri common law recognizes another limited, but very important, doctrine known as the Public Policy Exception or Whistleblower Exception.
Under modern Missouri law, an employer may not terminate an employee for refusing to violate the law or for reporting a violation of the law to someone in authority. The situation we most commonly see is where an employee reports on something that is “wrong” and subsequently loses his or her job. But, as is often the case, “wrong” does not always mean illegal. A relatively recent Supreme Court of Missouri decision explains that an employer in Missouri will only be prohibited from terminating an employee for “whistleblowing” when the subject matter of the report is clearly a violation of public policy. And public policy can be found in the text of statutes and regulations. Accordingly, the first question to always be addressed when analyzing a potential whistleblower case under the Missouri public-policy exception is to identify specifically what law was being complained of. If an employee cannot readily point to a particular statute or regulation that he or she was blowing the whistle about, then the public-policy exception is probably not going to prohibit a complained-of termination. On the other hand, if the employee can point to a particular regulation were statute, then it is likely that a complaint about the violation of that law can be considered “a protected activity.”
The second issue to address under the Missouri public-policy exception is to articulate to home the complaint was made. The Supreme Court of Missouri has been clear that a complaint about a law violation is only protected if the complaint is made to someone who can do something about the issue. For example, an employee complaining about the mishandling of narcotics in a hospital would not be protected if he or she only complained to a coworker. Rather, the employee in our example would need to complain to either the administration of the hospital and/or a governmental agency charged with regulating the handling of narcotics. Typically, it is relatively easy to identify to whom an employee has complained about whatever the issue was.
If the first two elements are met, then the analysis shifts to what is usually the ultimate question in a public-policy retaliation case. That is, was the employee’s complaint the cause of his or her termination. The Supreme Court of Missouri has recently clarified the causation standard. In Missouri, the standard for proving causation in a common-law whistleblower retaliation case is whether or not the employee’s protected complaint contributed to the decision to terminate the employee. The “contributing factor test” as the standard is known does not allow an employer to utilize a protected complaint as any part of the analysis of whether to terminate the employee. The contributing factor test is the same standard applied in Missouri to employment discrimination and retaliation claims under the Missouri Human Rights Act.
Call Lear Werts LLP to speak with employment law attorneys Todd Werts or Sander Sowers about whether you have been unlawfully terminated from your employment by calling 573-875-1991.