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Wrongful Termination in Missouri: "Whistleblower" Claims and the Public Policy Exception to Employment-at-Will

Missouri adheres to the rule prevailing in most jurisdictions that in the absence of a contract between an employer and employee for a definite term or a contrary statutory provision, an employee can be terminated at any time with or without cause or for any reason, provided the termination does not run afoul of a federal or state anti-discrimination statute. Amaan v. City of Eureka, 615 S.W.2d 414 (Mo. 1981). Under these circumstances, no action can be maintained for wrongful discharge. Id. at 415.

Missouri, however, recognizes exception to the at-will employment relationship based on public policy. The Supreme Court of Missouri addressed the breadth of such exception in three cases decided on the same day: Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81 (Mo. banc 2010), Margiotta v. Christian Hospital, 315 S.W.3d 342 (Mo. banc 2010), and Keveney v. Missouri Military Academy, 304 S.W.3d 98 (Mo. Banc 2010). In Fleshner, the court stated:

[T]his Court expressly adopts the following as the public- policy exception to the at-will employment doctrine: An at-will employee may not be terminated (1) for refusing to violate the law or any well-established and clear mandate of public policy . . . or (2) for reporting wrongdoing or violations of law to superiors or public authorities. If an employer terminates an employee for either reason, then the employee has a cause of action in tort for wrongful discharge based on the public-policy exception.

Fleshner, 304 S.W.3d at 96 (internal citations omitted). In regards to application of this rule, the court stated:

[P]ublic policy must be found in a constitutional provision, a statute, regulation promulgated pursuant to statute, or a rule created by a governmental body. But . . . a plaintiff need not rely on an employer’s direct violation of a statute or regulation. Instead, the public policy must be reflected by a constitutional provision, statute, regulation promulgated pursuant to statute, or a rule created by a governmental body.

Id. (internal citations omitted).

In Margiotta v. Christian Hospital, 315 S.W.3d 342 (Mo. banc 2010), however, the Supreme Court of Missouri discussed the limits of the public policy exception to whistleblowing. The court held that “not every statute or regulation gives rise to an at- will wrongful termination action,” and that a “vague or general statute, rule or regulation,” or one unrelated to plaintiff’s claim, cannot form the basis of a wrongful termination action. Id. at 348-50. The plaintiff based his allegations of wrongful termination on his report of unsafe patient practices based on one federal regulation that provided “[t]he patient has the right to receive care in a safe setting” and a second that required hospitals to develop procedures to remedy building safety hazards. Id. at 348. The court held that the first regulation was “too vague to support [plaintiff’s] wrongful discharge action” and the second was irrelevant to his claim. Id. at 347-348.

For the public policy exception to at-will employment termination based on whistleblowing to apply, the whistle must actually be blown. In Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383 (Mo. App. 1997), an employee was terminated after he informed his supervisor that he had witnessed the supervisor stealing company property. The employee also threatened to tell corporate officials if it happened again. The court determined that the plaintiff’s conduct did not amount to whistle-blowing, but was merely a courtesy warning. “While such a courtesy warning may be viewed as compassionate and in some instances may have the intended effect of stopping future criminal activity, it does not expose wrongdoers and their past wrongdoing.” Id. at 391. Plaintiff needed to have had “blown the whistle” to proper authorities, such as the employer or a third party.

When a public policy concern exists under the rule handed down in Fleshner, a plaintiff alleging employment discrimination need only prove that the illegitimate purpose was a contributing factor in the employment decision, rather than the exclusive or “but for” cause of that decision. Fleshner, 304 S.W.3d at 94. See also Missouri Approved [Jury] Instruction (MAI) 31.24.

Finally, it should be noted that punitive damages are recoverable in wrongful discharge claims brought under the public policy exception at common law. See Kelly v. Bass Pro Outdoor World, LLC, 245 S.W.3d 841 (Mo. App. 2007).