Missouri Republicans are on the verge of gutting employee protections

In his State of the State address, on January 17, freshly elected Gov. Eric Greitens devoted a full three minutes — nearly 10 percent of the speech — to a startlingly partisan attack on trial attorneys in Missouri.

“For too long in this state, trial lawyers have picked our people’s pockets,” Greitens boomed. “Our judicial system is broken, and the trial lawyers who have broken it — well, their time is up.” The governor went on to reference a report calling St. Louis the No. 1 “judicial hellhole” in the country. 

As one might expect of a study that uses “hellhole” as a unit of measurement, the report Greitens cited is not the work of truth-seeking analysts. A spokesman for the group that prepares the annual report — the ATR Foundation, which seeks to overhaul civil liability laws by limiting damages that plaintiffs can receive — told The New York Times in 2007 that the organization has “never claimed it’s an empirical study.” 

Browse the most recent such report and its biases are immediately obvious. For example, St. Louis is not the top hellhole because of Ferguson’s well-documented pattern of charging excessive court fees and jailing offenders (mostly African-Americans) for traffic violations. Nope, it’s because a jury there awarded too much money to women who sued Johnson & Johnson, alleging that the company had failed to warn the public about research linking ovarian cancer to its talcum-powder products. Likewise, Louisiana is a top-10 hellhole not because of the ongoing public-defender crisis, which leaves defendants languishing in jail; it’s because too many plaintiffs’ attorneys there tried to sue BP after its horrendous 2010 oil spill off the state’s shores. 

So the new governor used one of his first addresses to cite what is, in effect, fake news. But that isn’t the only connection between what’s happening in Missouri and the nightmare play being staged in Washington, D.C. In both capitals, Republicans have won control of all three branches of government. Both are now led by men with no previous experience in government. And both of those men are using populist rhetoric to pass legislation that plainly puts corporate interests ahead of the people. 

Two bills sloshing around the Missouri Senate, both of which ostensibly target the pocket-picking plaintiffs’ attorneys Greitens vilified in his speech, cleanly illustrate this agenda. 

SB 45, which is supported by the Missouri Chamber of Commerce and several large Missouri employers, seeks to make it easier for companies to enforce employment arbitration contracts. A growing number of employers across the country are inserting arbitration clauses into employee contracts. You sign a piece of paper as part of the hiring process and never think of it again — unless you are discriminated against in the workplace, in which case you discover that you are not allowed to sue your employer in court but must instead attempt to settle the dispute in arbitration. 

In this pseudo-judicial arrangement, you argue your case before an arbitrator — typically a lawyer or a retired judge — instead of in a  courtroom before a sitting judge. The arbitrator is paid for by your employer, which sounds fair. But it’s complicated. 

“Don’t get me wrong. I believe Missouri arbitrators are honest and fair and trying to do the right thing when they arbitrate cases,” says Paul Bullman, president of the Kansas City chapter of the National Employment Lawyers Association. “But arbitration is a system funded largely by big corporations. They’re the ones who foot the bill. And that creates a bias in their favor.” 

Though Bullman says that, anecdotally, plaintiffs’ attorneys report a much lower winning percentage in arbitration compared to the court system, it is impossible to know whether arbitration favors the defense. That’s because forced arbitration not only circumvents the traditional judicial process but also closes it off to the public. The proceedings, as well as the arbitrator’s decision, are private. 

“So if you’ve got a company that’s being sued over and over and over again for sexual harassment, and each dispute ends up in arbitration, the public will never know that company is a bad actor,” says Bert Braud, a plaintiffs’ attorney with the Popham Law Firm. (Sexual abuse by Catholic priests in Boston, for example, went on for decades outside public view because law firms there settled those cases in arbitration.) 

Cerner is a heavy utilizer of employee arbitration agreements. (A Cerner spokesman comments only that the company is “in support of SB 45.”) It does not require its employees to sign them, but if you don’t, you’re not eligible for performance-based raises — a controversial policy even in the realm of arbitration agreements. As a result, 93 percent of Cerner’s 17,000 employees have signed away their right to sue the company over labor issues. 

Hallmark is also keen on SB 45. Back in 2008, a Hallmark employee named Mary Kay Morrow brought suit against the company over age discrimination. Hallmark had a mandatory arbitration program, but Morrow had never signed an agreement, and thus argued it was unenforceable. They went to court, and the Missouri Court of Appeals eventually concluded that the arbitration agreement was invalid. This allowed Morrow to sue Hallmark in state court. (She won.) A Hallmark spokesman tells The Pitch that arbitration is a “way to fairly, quickly, and cost-effectively resolve employment claims.” The company likes SB 45 because it would change the laws so that someone in Morrow’s position would have to challenge the arbitration agreement in front of an arbitrator rather than before a judge. 

“You’re asking the system you believe is rigged to decide if it’s rigged,” Bullman says. “It makes no sense. It’s like you’re stuck in a black hole and you can’t get out.”

The other bill, SB 43, would amend the Missouri Human Rights Act — the state statute that protects employees from discrimination. For LGBT supporters in the state, this might sound, at first, like good news. For years, there’s been an effort to extend the MHRA — which protects workers based on race, religion, age, gender, disability and national origin — to LGBT individuals. 

Alas, that is not the change sought by Republicans in the Legislature. They instead wish to make it more onerous to prove claims of discrimination (by requiring plaintiffs to prove discrimination was a “motivating” factor in their termination, rather than the current threshold of “contributing” factor) and to limit the damages for which plaintiffs are eligible when they do prove they were discriminated against. (The new legislation would cap damages on discrimination lawsuits at $300,000 for companies with 500 or more employees; for smaller companies, the cap would be progressively less.)

Tacked onto the end of SB 43 is a deeply Orwellian provision called the Whistleblowers Protection Act.

Whistleblowers — employees who report to the appropriate authorities illegal activity they’ve witnessed in their place of employment — are today protected in Missouri by common law, meaning a judicial precedent that ruled in favor of whistleblowers. The Whistleblowers Protection Act would make such protection a statutory law on the books — in effect, legislatively solidifying what the courts have already decided. 

Sounds wonderful. It is not. 

Right now, if you’re working for a company that’s dumping hazardous chemicals into the Missouri River, and you report that to OSHA or the EPA, and are then retaliated against by your employer, you’re entitled to sue for lost wages, plus lost benefits, emotional distress and humiliation. Awarding hefty compensatory damages to a plaintiff is one tool that juries have to deter companies from continuing bad behavior, while rewarding bravery when someone comes forward to help protect other persons.

Under SB 43, though, Missourians would be able to sue only for lost wages, medical bills related to the incident (which does not include lost benefits), and “liquidated damages” — which are capped at twice the amount of the lost wages. 

“So let’s say you’re a low-level employee and you make $500 a week at a factory, and the factory is dumping poison into the lake,” Bullman says. “You report that to OSHA. They end up firing you. You get a new job a few weeks later somewhere else. Under this new law, the best you would be able to get in court is your lost wages — $1,000 — plus another $2,000 for liquidated damages. So the company gets off for $3,000.”

Bullman continues: “One, that makes it very easy for a company to fire employees, because it’s just so cheap — they won’t pay a real price. And two, there’s no incentive for the employee to blow the whistle in the first place.

“Look at Flint. We want whistleblowers to do the right thing. This law destroys 90 percent of the protections that are already in place. The only ones supporting it are corporations and insurance companies — because they don’t want to be held responsible when they violate our state’s laws.” 

These bills are not new. Similar versions of both have advanced in the Legislature in recent years, stopped only by Gov. Jay Nixon’s veto. In 2011, Nixon slapped down a predecessor of SB 43 as “unacceptable.” He said it “would undermine key provisions of the Missouri Human Rights Act, rolling back decades of progress in protecting civil rights … [and] make it harder to prove discrimination in the workplace and would throw new hurdles in the path of those whose rights have been violated.”

Now Nixon is gone, as are many of the remaining moderate Republicans who joined Democrats opposed to overriding Nixon’s veto. And if his speech a few weeks ago is any indication, Greitens will sign these bills without hesitation. 

Sen. Gary Romine, a 3rd District Republican, introduced both SB 43 and SB 45. He did not respond to requests for comment, but he has said previously that he seeks stronger protection for businesses against “frivolous lawsuits” in the state. 

Romine is a business owner himself; he owns Show-Me Rent-to-Own, a household-goods rental chain. As it happens, there is a pending employment discrimination case against Show-Me Rent-to-Own in Scott County, where its Sikeston store is located. A former employee there alleges that his supervisor frequently used racist language in the workplace (“Quit acting like a nigger” was one taunt, according to the lawsuit) and that, on a map in the back of the store, a predominantly black residential neighborhood was circled, with the words “Do not rent to” written beneath it. According to the complaint, the company’s human resources contact reported the employee’s concerns to Romine, but Romine told her the matter was none of her business.

Romine’s concerns about lawsuits clogging up the court system is less acute when it comes to suing his own customers. According to Missouri court records, Romine’s company has filed roughly 75 lawsuits in the state of Missouri in the past 15 years. 

A few special interest groups, such as the Missouri Association of Trial Attorneys, are fighting Romine’s bills. But arguments from MATA, while sound, are nevertheless rooted in self-preservation. A stronger voice for employee protections in the civil-justice system ought to be coming from moderate elected leaders. But few seem inclined to die on this hill. 

Moderate Republican senators, like Ryan Silvey (North KC) and Jay Barnes (Jefferson City), are keeping mum; both offices declined to comment on the legislation at this stage. Democrat John Rizzo (Independence) also declined to comment. Jason Holsman (D-KC) says he is “still evaluating” the legislation. Even Democrat Gina Walsh (St. Louis), who has been a voice against these bills in the past, didn’t want to wade in; her office responded that she’s “focused on the prevailing wage and right to work legislation at the moment.” 

The Missouri Chamber of Commerce, meanwhile, is loudly exploiting this void. 

“Missouri is considered one of the easiest states in the nation in which to bring frivolous discrimination lawsuits,” the Chamber said in a statement. “We need a strong law that allows expedient action in cases of discrimination and blocks fraudulent claims from moving forward.”

Jeannie Brandstetter, communications director with MATA, sees it a little differently. “Their argument is that all these lawyers suing companies is bad for business in Missouri,” she says. “Well, hurting people, cheating people and abusing people in the workplace — that’s also bad for business in Missouri.” 

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