St. Louis, Mo. (August 17, 2020) - Significant new whistleblower legislation is coursing its way through a special session of the Missouri Legislature and, if passed, will drastically broaden the definition of employer to expose businesses and government entities to whistleblower suits claiming punitive damages. House Bill 21 (HB 21) purports to be an emergency clause bill, which would go into effect immediately upon passage.
HB 21
On Monday, July 27, 2020, the Missouri legislature introduced HB 21, which would modify the provisions of the Missouri Whistleblower's Protection Act (2017) (WPA). The WPA is a statutory civil cause of action that did not exist prior to 2017. It was intended to codify common law wrongful discharge claims, and to halt what some believed was an unfettered expansion of exceptions to the at-will employment doctrine by the courts.
The WPA shields employees from termination due to protected
conduct (subject to some exceptions). These “protected
persons” include any employee who: (1) “has reported to
the proper authorities an unlawful act of his or her
employer”; (2) “reports to his or her employer serious
misconduct of the employer that violates a clear mandate of public
policy as articulated in a constitutional provision, statute, or
regulation promulgated under statute”; or (3) “has
refused to carry out a directive issued by his or her employer that
if completed would be a violation of the law.”
Rep. Mackey, sponsor of the amendment, stated that the intent
behind HB 21 is to “restore protections to public
whistleblowers, previously in state law prior to 2017.” He
acknowledged that HB 21 is almost identical to HB 2393, which he
introduced in regular session February 4, 2020, but which failed to
pass. Id. One of the key differences between HB 2393 and this
special session's bill is that HB 21 seeks to allow punitive
damages under the WPA.
What HB 21 Would Do
Currently, the WPA excludes several entities from the definition of “Employer,” including Missouri State governmental entities, public colleges, and religious organizations. RSMo §285.575(2)(2). HB 21 seeks to eliminate all these exemptions. Similarly, the new law seeks to include employees who are currently excluded from the definition of “protected person,” namely employees who have not followed proper reporting procedure outlined above.
Plaintiffs, who presently fall under the WPA's “protected person” definition, have a private right of action for actual damages due to violations, and sometimes for double these damages in outrageous cases, but not for punitive damages. This right is currently only available if there is no right of action under another law. HB 21's most impactful change would allow plaintiffs to seek punitive damages and to bring a suit under the WPA regardless of other available causes of action (and potentially in conjunction with another causes of action).
Conclusion
Should HB 21 pass, we anticipate there will be an immediate uptick in whistleblower cases being filed claiming punitive damages. However, we also anticipate that there will be constitutional challenges to the bill. Employers should examine their whistleblower policies and complaint procedures to ensure a robust process is in place to reduce potential exposure should HB 21 pass.
Originally published by Lewis Brisbois, August 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
