Retaliation against a Former Employee?
RSMo. § 287.780
By Jack Fleming, VBM Attorney
Article written December 1, 2022
The Missouri legislature has given employees a cause of action against their employers for retaliatory discharge when employers have fired or otherwise discriminated against the employee because they have exercised their rights under the Missouri Workers’ Compensation Laws (Missouri Revised Statutes, Chapter 287). RSMo. § 287.780 governs these retaliatory discharge claims. The statute allows the employee to file a lawsuit in Missouri circuit court and obtain compensatory, as well as punitive damages.
But does RSMo. § 287.780 protect a former employee from retaliation by a former employer?
Recently, in the case Lisle v. Meyer Elec. Co., No. WD 84620, 2022 WL 2032253 (Mo. Ct. App. June 7, 2022), transferred to Mo. S.Ct. (June 23, 2022), the plaintiff, John Lisle, was an electrician that worked for the defendant, Meyer Electric. On April 27 and May 2, 2018, Lisle asked his foreman to fill out an injury report because he was suffering from carpal tunnel. The foreman told him that if he filed the injury report, Leon Keller, the president of Meyer Electric, would fire him. On May 2, 2018, Keller learned that Lisle wanted to file an injury report and a workers’ compensation claim. The next day, May 3, 2018, Keller terminated Lisle.
Later, in June 2019, Meyer Electric posted a job opening for an electrician. Lisle expressed interest in the job opening but was told by his former foreman that Keller would not hire Lisle. The job went to another electrician, even though Lisle had priority over him based on
a union agreement.
Because he was not rehired for the open electrician position, Lisle filed a lawsuit in Jackson County Circuit Court claiming that he was not rehired in retaliation for exercising his rights under the Missouri Workers' Compensation laws (for filing his claim for workers’ compensation). Meyer Electric was granted summary judgment (ending the lawsuit) because the Jackson County Circuit Court held that Lisle was not a current employee of Meyer Electric when he attempted to apply for the open electrician job, and, therefore, was not protected by RSMo. § 287.780. The present appeal followed.
Lisle argued on appeal that RSMo. § 287.780 prohibits former employers from discriminating or retaliating against former employees for exercising their rights under the Missouri Workers' Compensation Laws. The Missouri Court of Appeals, Western District began by interpreting RSMo. § 287.780. The Court noted that the Missouri Workers' Compensation Laws are to be strictly construed. RSMo. 287.800. The Court also noted that RSMo. § 287.780 states that “[n]o employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination.” Based on RSMo. § 287.020.1 (which defines employee under the Missouri Workers’ Compensation Laws), the Court held that an employee is someone that is currently “in the service of” an employer. The Court further held “that an existing employment relationship at the time of an alleged act of retaliatory discrimination is required in order to support a statutory claim under section 287.780. That is particularly so given the directive in section 287.800 to strictly construe the provisions of the Workers’ Compensation Law.” The Court found unpersuasive Lisle’s arguments that Title VII and other federal statutes protect prospective and former employees from discrimination and retaliation. The Court explained that “section 287.780 does not expressly extend protection to any class of persons other than employees.”
The Missouri Court of Appeals, Western District ultimately agreed with the Jackson County Circuit Court: “Though a claim of retaliation can be pursued after an employment relationship ends, the right to pursue the claim inherently depends on acts of discrimination that occurred during the employment relationship.” (Emphasis added).
Rather than affirm the trial court’s grant of summary judgment, the Missouri Court of Appeals, Western District transferred the case to the Missouri Supreme Court because “[t]he construction of section 287.780 suggested by this Opinion will effectively permit retaliation for the exercise of rights under the Workers' Compensation Law to occur without recourse so long as the retaliatory conduct is engaged in after an employment relationship has ended. The potential chilling effect of post-employment retaliation on a former employee's willingness to exercise rights under the Workers' Compensation Law presents an important policy concern.” The Court also expressed policy concerns related to former employers: “If section 287.780 is construed to expose an employer to claims of retaliation based on conduct that occurs after an employment relationship has ended, that exposure would be perpetual, and could have a potential chilling effect on the former employer's willingness and ability to defend workers' compensation claims that are not filed, or that are not fully resolved, until after the employment relationship has ended. These competing policy concerns are weighty, and warrant guidance from the Supreme Court, particularly as the legal issue presented by this case is one of first impression.”
This is a very interesting case because, as the law stands now, an employer can refuse to rehire or otherwise “retaliate” against a former employee for exercising their rights under the Missouri Workers’ Compensation Laws. The Missouri Supreme Court will probably affirm the trial court’s grant of summary judgment in favor of Meyer Electric because of the clear definition of employee contained in RSMo. § 287.020.1.
However, the Missouri Supreme Court – in another recent workers’ compensation retaliatory discharge case – held that the Independence School District did not have sovereign immunity against a workers’ compensation retaliatory discharge claim because “the plain language of section 287.780 and related statutes shows the general assembly expressly waived whatever immunity the school district might have had...” Poke v. Indep. Sch. Dist., 647 S.W.3d 18, 19 (Mo. 2022). Accordingly, it would not be surprising for the Missouri Supreme Court to side with the former employee in the Lisle case. Importantly, Missouri school districts no longer enjoy sovereign immunity for workers’ compensation retaliatory discharge claims.
In any event, former employees may still bring a lawsuit for failure to rehire under the Missouri Human Rights Act (RSMo. Chapter 213), if they can allege that the employer’s failure to rehire is based on a protected class, such as race, gender, disability, etc. The resolution of the Lisle case by the Missouri Supreme Court will shed light on the temporal limits of a workers’ compensation retaliatory discharge claim that is brought under the Missouri Workers' Compensation Laws (Chapter 287).
If you have any questions regarding a possible claim of retaliatory discharge, please do not hesitate to reach out to our office at 573-777-4488 or email me at Jack.Fleming@vbmlaw.com.
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