The Missouri Supreme Court recently issued rulings on three cases relating to the public policy exception to the employment-at-will doctrine. These three cases directly impact wrongful discharge cases against employers in Missouri. The three main issues these cases discussed are: (1) the proper causation standard to apply in wrongful discharge cases; (2) whether contractual employees may pursue wrongful discharge claims; and (3) what can constitute a basis for a “public policy.”.

In Fleshner v. Pepose Vision Institute, the former employee alleged she was discharged in retaliation for her participation in a Department of Labor investigation. The trial court used a jury instruction which asked the jury to decide if the former employee’s discharge was “because of” her involvement in the investigation. While the Missouri Court of Appeals held the proper standard to be an “exclusive causation” standard, used in workers’ compensation retaliation cases, the Missouri Supreme Court disagreed. By comparing a wrongful discharge cause of action to a discrimination claim under the Missouri Human Rights Act, the court held the same lower standard should apply. The Missouri Supreme Court instructed trial courts to use the least strict “a contributing factor” standard used for Missouri Human Rights Act claims.

Keveney v. Missouri Military Academy dealt with whether or not a contractual employee has a right to pursue a claim for wrongful discharge in violation of public policy. In this case, the former employee claimed he was fired as a result of his insistence that his superiors report evidence of a student being physically abused to the Division of Family Services. Even though the Missouri Supreme Court had previously held claims of wrongful discharge were only available to at-will employees who are not party to written employment agreements, the court reversed its precedent to make such a claim available to contractual employees whose agreements are terminated.

In better news for employers, the Margiotta v. Christian Hospital et al. case centered around what is needed in order to demonstrate a “public policy” (i.e., what type of statute, regulation, constitutional provision, or rule promulgated by a government body can be used as a basis for such a public policy). The former employee alleged he was discharged because he made three reports regarding patient safety to his supervisors. These reports consisted of patients being left unattended in the hospital hallways, the use of only one orderly to move patients from the stretcher to the CT scanning table (which allegedly led to a patient being dropped), and a pregnant woman undergoing a CT scan.

The Missouri Supreme Court held that the inquiry should be centered on “whether the authority clearly prohibits the conduct at issue in the action.” The former employee in this case tried to rely on two regulations. The first was a federal regulation stating “the patient has the right to receive care in a safe setting.” The court held this regulation empowered patients to assert their right to safety, was personal to the patient, and did not grant any protection to employees or require any specific conduct by an employee (such as an affirmative duty to report a violation of the regulation). Further, the court held this regulation did not forbid the incidents reported.

The other regulation states “[e]ach hospital shall develop a mechanism for the identification and abatement of occupant safety hazards in their facilities. Any safety hazard or threat to the general safety of patients, staff or the public shall be corrected.” Again, the court found this regulation not applicable to the incidents about which the former employee complained, stating that the regulation dealt with building safety, not patient safety. The court acknowledged that the “mere citation” to a “regulation without a demonstration of how the reported conduct violated it cannot form the basis for a wrongful discharge action.”.

According to James Paul, a shareholder in Ogletree Deakins’ St. Louis office: “All of these decisions clearly warn employers to pay special attention to their discipline and discharge procedures and continue a trend of making it easier for employees to bring and succeed with claims in Missouri state courts.” With such a low standard for finding a causal connection between the protected activity in the name of “public policy” and the discharge, employers must make sure they are properly documenting all job performance problems and misconduct of their employees. Further, employers should review their discipline and discharge procedures to ensure they are up-to-date and are being followed. Meanwhile, any discipline and discharge decision must be made with special attention to the company’s policies, in order to insure that such decisions are consistently made in a non-retaliatory and non-discriminatory manner. Employers must also take the same precautions with contractual employees. While the Margiotta case provides helpful defenses, employers must still be sure any discipline or discharge decision will not be seen as retaliation against an employee for making a complaint that could even remotely be related to something that resembles “public policy.” While winning a lawsuit is great, avoiding the lawsuit altogether is obviously better.

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