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Missouri Legislature Changes the Burden of Proof for Workers’ Compensation Retaliation Claims

May 10, 2017

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On Monday, May 8, 2017, the Missouri Legislature passed Senate Bill 66.  Senate Bill 66 amended a number of sections of the Missouri Workers’ Compensation Act.  Of significant note for employment litigators, Senate Bill 66 modifies the burden of proof for workers’ compensation retaliation claims under §287.780 R.S.Mo.  This change was a direct response to the Missouri Supreme Court’s decision in Templemire v. W&M Welding, Inc., 433 S.W.3d 371 (Mo. 2014).  

In Templemire v. W&M Welding, Inc., the plaintiff alleged he was fired in retaliation for filing a workers’ compensation claim. The trial court entered judgment in favor of the employer.  The Missouri Supreme Court ultimately reversed and held that to make a submissible claim of retaliation under §287.780 R.S.Mo., “an employee must demonstrate his or her filing of a workers’ compensation claim was a ‘contributing factor’ to the employer’s discrimination or the employee’s discharge.”  The Templemire decision was

Missouri Legislature Passes Significant Changes to the Missouri Human Rights Act

May 9, 2017

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Today, the Missouri House of Representatives passed Senate Bill 43, which makes significant changes to the Missouri Human Rights Act (“MHRA”), Missouri’s fair employment practices law.  Having now passed both Chambers, Senate Bill 43 now goes to Governor Greitens desk for approval.  Senate Bill 43 makes a number of important changes to the MHRA: 

Burden of Proof Changed to Motivating Factor

The burden of proof on claims under the MHRA is changed to “motivating factor.”  In 2003, the Missouri Supreme Court held there was a right to a jury trial under the MHRA.  In 2005, an advisory committee on Missouri’s jury instructions considered the need for a new instruction for claims under the MHRA, and ultimately recommended that the burden of proof for claims under the MHRA be “contributing factor.”  The Supreme Court adopted that recommendation, and in Daughtery v. City of Maryland Heights, 213 S.W.3d 814

Avoiding State Law Pitfalls (Part 2 of 4)

May 8, 2017

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This is the second hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Scenario #2

A manager of a Chicago, Illinois restaurant calls you regarding a long-term employee whose son is in the U.S. Marines. The employee would like to take a month off work to spend time with his son before he departs for Iraq. The employee does not have any unused vacation or other form of leave available under the Company’s policies. The manager advises that the employee’s performance is average, but a 30-day leave would negatively impact the restaurant’s operations during the busy summer months. You advise the manager that the Family & Medical Leave Act does not apply because neither the employee nor his family member suffers from a serious health condition, and the Uniformed Services Employment & Reemployment Act (USERRA) is inapplicable because that statute only protects employees who are, themselves,

The Use of Unconditional Offers of Reinstatement to Reduce Damages Exposure

This post discusses the underutilized litigation strategy of extending an unconditional offer of reinstatement to a former employee-plaintiff who has filed (or has threatened to file) suit challenging his or her termination from employment.

How the Rejection of an Unconditional Offer of Reinstatement Impacts Damages

The U.S. Supreme Court has held that a former employee’s rejection of an unconditional offer of reinstatement (i.e., one that does not require the plaintiff to waive or compromise his or her discrimination claim) to a substantially equivalent position tolls the accrual of the employer’s back pay liability:

An unemployed or underemployed claimant, like all other Title VII claimants, is subject to a statutory duty to minimize damages. . . . This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding suitable employment. Although the unemployed or underemployed need not go into another line of work, accept

Paid Sick Leave

April 25, 2017

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Paid Sick Leave

April 25, 2017

Authored by: Lily Kurland

While no federal law requires employers to provide employees with paid sick leave benefits, such an obligation does exist under certain state and municipal laws, including but not limited to those in Connecticut, California, Illinois, Massachusetts, Oregon, Vermont, Washington, D.C., Seattle, and New York City.

The scope of each of these laws, however, varies greatly. For example, while Connecticut’s law generally only applies to hourly workers in certain “service” occupations, California’s law generally applies to all employees, including temporary employees, who work in the state for 30 or more days per year. The consequences for failing to comply with the relevant state or municipal law likewise vary, with certain locales providing employees with their own private right of action.

In order to determine what, if any, paid sick leave obligations it has, employers should be sure to familiarize themselves with the following information:

  • The states or municipalities that have

Getting More Bang for Your Buck With Separation and Settlement Agreements

All employers, at one time or another, will provide terminated employees with a severance payment for a release of all claims that employees may have against the employer, as well as other promises.  Too often, employers blindly “copy and paste” language from old agreements that may contain outdated provisions that no longer comply with current law, or that were tailored to a factual setting different from the situation they are currently facing.  Employers should review their standard settlement agreements, with the following non-exhaustive items to bear in mind.

Timing of Execution.   An employee may not release future claims, i.e., claims that have not yet accrued.  Employers sometimes provide severance agreements to departing employees while they are still employed.  If the employee signs while employed, waiving any past claims, the waiver would not apply to any claims that accrue after the employee’s execution of the agreement.  Thus, if the employee is

Early Dismissal Strategies When Dealing With a Dishonest Plaintiff

April 19, 2017

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Dishonest plaintiffs can make it difficult, and in some cases impossible, to successfully move for summary judgment. Indeed, a dishonest plaintiff who understands the legal landscape can easily defeat summary judgment by claiming that there exists “direct evidence” of discrimination in the form of an admission by management that the challenged employment action was motivated by discriminatory animus (e.g., “my supervisor told me he was firing me because of my age”).

While there sometimes is nothing that can be done about a dishonest plaintiff other than attack his/her credibility in front of a jury, it is critical to ensure that that all early dismissal strategies are explored before reaching the dispositive motion stage of case. These early dismissal strategies include examination of plaintiffs’ representations in their post-employment bankruptcy petitions and in forma pauperis (“IFP”) applications.

Those new to employment litigation may be surprised by the percentage of plaintiffs that file

Avoiding State Law Pitfalls (Part 1 of 4)

April 19, 2017

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This is the first hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Navigating the treacherous waters of federal employment law is not easy. Well-intentioned employers can unknowingly violate some of the more complicated (albeit well-known) laws like the Family & Medical Leave Act and the Americans With Disabilities Act due to a lack of familiarity with the applicable regulations or the case law interpreting them. When an employer has operations in multiple jurisdictions, the analysis becomes even more complex due to circuit splits on pivotal issues.

With so much to worry about on the federal front, it is no wonder that human resources personnel, in-house counsel, and outside counsel often do not spend sufficient time and resources staying apprised of some of the more obscure state laws on the books. If you are reading this article, you almost certainly have internal or external clients relying on

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

  • General Guidance materials (such as FAQs and separate employee and employer guides);
  • Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);
  • E-Tools (interactive online tools and presentations about the FMLA);
  • Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);
  • Forms (consider making it

Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 1 of 3)

This post (the first of three) discusses common errors made by employers when terminating employees, all of which can be easily avoided.

Mistake No. 1: Offering an Older Employee a “Retirement” Package

Well intentioned employers sometimes are tempted to characterize a performance-based, involuntary termination of an older employee as a “retirement.” However, the mere mention of the word “retirement” in connection with a termination decision, even when offering an enhanced severance package, can lead to liability under the Age Discrimination in Employment Act (the “ADEA”).

Interestingly, the original version of the ADEA excluded from coverage employees who were 70 years old or older, as well as employees who were under the age of 40. Accordingly, employers could force employees to retire at age 70 under the original version of the ADEA without facing liability. However, the ADEA was amended in 1986 to remove the exclusion for employees who were 70

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