By Jack Fleming, VBM Attorney

Article written May 9, 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. As of August 28, 2017, the employee must prove that their exercising of rights under the Missouri Workers’ Compensation Laws (such as filing a claim for workers’ compensation benefits) was a “motivating factor” in the employer’s decision to fire or otherwise discriminate against the employee.

Discrimination because of exercising compensation rights prohibited--
civil action for damages--motivating factor defined

No 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. Any employee who has been discharged or discriminated against in such manner shall have a civil action for damages against his or her employer. For purposes of this section, “motivating factor” shall mean that the employee's exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.

The employee has the initial burden to prove the following four elements in order to state a claim for retaliatory discharge: (1) the employee was employed by the employer before the injury; (2) the employee exercised a right under RSMo. Chapter 287; (3) the employer discharged or discriminated against the employee; and (4) the exercise of the employee’s rights under Chapter 287 was a “motivating factor” in the employer’s decision to discharge or otherwise discriminate against the employee.

Once the employee has produced sufficient evidence to show that the four elements of retaliatory discharge have been met, the burden of proof shifts to the employer to rebut the employee's evidence by showing that there was a legitimate, non-discriminatory reason for the discharge. If the employer carries its burden to show the employee was discharged for a legitimate, non-discriminatory reason, the burden shifts back to the employee to show that the employer’s reason was pretextual (i.e. that the employer’s reason for termination was not the real reason).

In retaliatory discharge cases, employees can obtain damages for lost wages, emotional distress, and punitive damages. Also, the employee does not have to file a workers’ compensation claim before a claim for retaliatory discharge can be brought in circuit court. For example, where an employee is preparing to file a claim for compensation, and the employer has knowledge that the employee is preparing to file a claim, that fact and the employer’s knowledge are sufficient to demonstrate that the employee exercised a right under Chapter 287. In addition, receiving medical treatment and remaining off work pending a medical release are enough to show the employee exercised a right under the Missouri Workers’ Compensation Laws. However, an employer's refusal to pay workers’ compensation benefits, provide additional medical care to the injured employee, and failure to pay mileage expenses, among other things, are not actionable as retaliation—they are traditional workers’ compensation claims that must be brought with the Missouri Division of Worker’s Compensation. Finally, the injury-causing event itself is not an exercise of a right by the employee.

Importantly, firing an employee is not the only action that can lead to a retaliatory discharge claim. Discrimination – for which a claim for retaliatory discharge can be made – may involve another form of employment action, such as:

  • refusal to give an employee a promotion, salary or pay increases;
  • reassignment to a less desirous job or location;
  • reprimanding an employee for conduct for which other employees were not reprimanded;
  • denying break privileges and favorable job assignments to an employee that had been granted prior to the employee's exercise of rights under Chapter 287;
  • deriding or complaining about the employee to co-workers; and
  • ignoring or refusing repeated efforts and offers by the employee to return to work.

Interestingly, state employers are protected by sovereign immunity from claims of retaliatory discharge under RSMo. § 287.780 because RSMo. § 105.850 has been construed by courts as preserving the State's sovereign immunity against tort claims, including the tort of retaliatory discharge based on § 287.780. See Wille v. Curators of Univ. of Missouri, 627 S.W.3d 56, 65 (Mo. Ct. App. 2021), transfer denied (Aug. 31, 2021). However, an employee may still have a claim for injunctive relief against a state employer for reinstatement.

For employers – bad timing can create a strong inference of retaliation. If you choose to terminate an employee who recently filed a claim for compensation, make sure your reasons for termination are well documented in the employee’s personnel file. It is usually best to obtain advice from your attorney before terminating an employee who has complained of discrimination or has filed a claim for workers’ compensation benefits. A civil suit for retaliatory discharge is much worse for an employer because of attorney’s fees, protracted litigation, and the possibility of punitive damages. Although recent changes in the law make it harder for an employee to prove retaliatory discharge (because of the “motivating factor” standard), civil litigation in circuit court is something that should be avoided at all costs. Proper documentation for any disciplinary action, demotion, or termination is essential to avoiding retaliatory discharge lawsuits, and, in the event the employee does file a lawsuit, will be crucial to the employer in defending the case.

If you have any questions regarding a possible claim of retaliatory discharge, please do not hesitate to reach out to us.   |   (573) 777-4488  |