2009 Missouri Solo & Small Firm Conference

Fired Employee:Good Case or Waste of Time?

What you need to know to help a client who calls after being fired and wants to know if he or she has a legal case

against the employer.

Speaker: Bryan Scheiderer Scheiderer Law Firm, LC Rolla, Missouri

(573) 341-3232bryan@bdslaw.com

Goal: finding the good employment law case that we can both help a client obtain relief

and earn a decent fee

• Intake (deciding which case to take)• Contact with potential client

• Gathering information

• Understand the Law

• Short term solutions• Assist with unemployment benefits appeal

• Obtain Service letter

• File Charge of Discrimination

• Long term solutions (lawsuit)• Which cause(s) of action

• State v. Federal

• Damages and equitable relief

! Intake: the potential client calls...

• Telephone interview by you or assistant:

• who are defendants (conflict check)

• important dates (SOL)

• send questionnaire for details?• really helps separate “wheat from the chaff”

• ask PC to provide copies of important documents• e.g., payroll stubs, employee handbook, unemployment appeal

documents, dismissal letters

• followup with phone call, interview or non-engagement letter

! Intake: meeting with potential client...

• Listen to PC’s story

• The speech about the Law

• Missouri is an employment at will state, can be fired for any or no reason, to help we need to find an exception to that rule

• Many myths and misperceptions about the law

• What are PC’s goals?

• unrealistic expectations?

• PC that must have his/her day in court

• damages, reinstatement?

! Intake: making the decision...

• Evaluate good and bad of potential client• likable plaintiff?

• evaluate any criminal history, mental health issues

• Myspace, Facebook, etc.

• Think backwards about the case• how do the facts fit with Law to find an exception?

• what would a closing argument sound like?

• what verdict director would a jury read?

• case usually built with circumstantial evidence

• Accept or reject case• get signed contract, or send non-engagement letter

! Short term help...

• Contact employer???• perhaps in some cases

• Employment Security benefits• assist with appeal?

• Service Letter• read and follow statute carefully

• Unpaid Final Wages • RSMo. § 290.110 (can get up to 60 days if wages not paid upon firing,

check statute for details

• Overtime complaints with U.S. Dept. of Labor• reporting to employer enough? may need to file formal complaint with

DOL

• File Charge of Discrimination with MHRC/EEOC• consider using Missouri Human Rights Act

! Short term help...unemployment benefits

• Employment Security benefits• Standard is different, see Chapter 288, RSMo.

• Ineligible if discharged for misconduct related to work

• Claimant and Employer statements

• Obtain file and hearing tape

• http://www.dolir.missouri.gov/es/info_workers.htm

! Short term help...Service Letter

• Service Letter or Letter of Dismissal• Carefully read RSMo. § 290.140

• Employee must have worked there at least 90 days

• Employee must within one year request service letter in writing by certified mail, making specific reference to the statute, sent to superintendent, manager or registered agent

• Employer must employ more than 7 and be a corporation

• Employer should respond in writing stating “true cause of dismissal”

• Compensatory or punitive damages available for non-compliance

• Assist client in sending, instruct client to keep green signature receipt card and response (if any)

• May be of significant evidentiary value in later lawsuit if provides inconsistent explanation of termination

[return address]

[date]

VIA CERTIFIED MAIL

RETURN RECEIPT REQUESTED

[name]

[Superintendent, Manager or Registered Agent]

[address]

Dear [name]:

I was formerly employed by your company as a [job title]. So that I may have a

record of my past employment, please furnish me with a Letter of Dismissal setting

forth the nature and character of my services to the corporation, the dates of my

employment, and the true cause of my discharge, in accordance with RSMo. §

290.140.

As I believe your letter will assist me in obtaining other employment, I shall

appreciate your prompt response.

Sincerely,

[client’s name]

Missouri is an employment at will state

• Generally, an employee who does not have a contract which contains a statement of duration is an employee at-will and may be discharged at any time, with or without cause, and the employer will not be liable for wrongful discharge. However, Missouri courts have recognized public policy exceptions to the employment at-will doctrine, which provide that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge. See

Dunn v. Enterprise Rent-A-Car Co., 170 S.W.3d 1 (Mo. App.

E.D. 2005).

• Three main exceptions in Missouri: 1. Contract (union members?)2. Public policy3. Statutory and constitutional provisions

Public policy exceptions:

• An employee has a cause of action for wrongful discharge if he or she was discharged for:

1. refusing to perform an illegal act or an act contrary to a strong mandate of public policy (must be a violation of a statute, constitutional provision or regulation)

2. reporting wrongdoing or violations of law or public policy by the employer or fellow employees to superiors or third parties

3. acting in a manner public policy would encourage (e.g. jury duty, seeking public office, or joining a labor union)

4. filing a workers' compensation claim (RSMo. § 287.780)

Dunn v. Enterprise Rent-A-Car Co., 170 S.W.3d 1 (Mo. App. E.D. 2005)

State and Federal Laws

• Consider filing a Charge of Discrimination if supported by the facts:

Federal & state laws prohibiting race, color, religion, sex, national origin,

age, & disability discrimination, and retaliation include:

1. Title VII of the Civil Rights Act of 1964, as amended by the Civil

Rights Act of 1991 (Title VII), which prohibits employment discrimination based on race, color, religion, sex (includes pregnancy) or national origin

2. Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination

3. Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older

4. Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments

5. Missouri Human Rights Act, RSMo. § 217.055, prohibits discrimination on the basis of race, color, religion, national origin, sex, ancestry, age or disability.

State and Federal Laws

• Additional Federal laws that do not require a charge:

• Family and Medical Leave Act (FMLA): Up to 12 weeks unpaid leave, but employer must have 50 or more employees within 75 miles.

• Fair Labor Standards Act (FLSA): Contains the minimum wage and overtime laws. The Department of Labor website has a lot of good information about this law and the regulations enforcing the law, www.dol.gov.

• ERISA: § 510 of ERISA (29 U.S.C. § 1140) provides a cause of action against employers who interfere with an employee’s ERISA rights. Note: may be limited to equitable relief.

• Employee Polygraph Protection Act of 1988 (EPPA): 29 U.S.C. § 2001, 29 CFR Part 801

State and Federal Laws

• Whistleblower Protection:

1. Missouri public policy exception

2. First Amendment protecting Free Speech

• Garcetti v. Ceballos, 547 U.S. 410 (2006). The U.S. Supreme Court ruled that statements public employees make as part of their official duties are not protected under the First Amendment

3. Federal statutes - there is no one centralized law providing protection; but many different provisions scattered throughout federal statutes...

http://www.dol.gov/compliance/guide/whistle.htm

See also National Whistleblower Center, http://www.whistleblowers.org/

State v. Federal

• Federal claims can be removed to Federal Court

• Federal courts are generally hostile to employment claims

• Use of Summary Judgment

• Low SJ/High verdict reversal rates on appeal

• Higher costs, mediation mandatory

• Juries (6 v. 12, unanimous verdict v. 9/12)

• Consider Missouri Human Rights Act

• Chapter 213, RSMo.

• Simple statute & jury instructions

• Causation standard is “contributing factor”

• State Court, State Court, State Court!

• “Age” = 40 to 70 years old

• "Disability" = having a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment

• "Employer" = includes the state, or any political or civil subdivision thereof, or any person employing six or more persons within the state, and any person directly acting in the interest of an employer, but does not include corporations and associations owned and operated by religious or sectarian groups

• More definitions at RSMo. § 213.010

Missouri Human Rights Act

Instruction _____

! Your verdict must be for plaintiff if you believe:

! First, defendant discharged plaintiff, and

! Second, age was a contributing factor in such discharge, and

! Third, as a direct result of such conduct, plaintiff sustained damage.

MAI 6th 31.24Submitted by Plaintiff

Instruction _____

! Your verdict must be for plaintiff if you believe:

! First, defendant discharged plaintiff, and

! Second, age was a contributing factor in such discharge, and

! Third, as a direct result of such conduct, plaintiff sustained damage.

*Federal instructions generally use “determining” or “motivating” factor.

Missouri Human Rights Act

Filing a Charge of Discrimination

• Must be filed within 180 days• EEOC filing period may be up to 300 days

• “Dually” filed with MHRC/EEOC

• Consider naming individual respondent

• MHRC/EEOC will investigate

• Reconciliation/Mediation

• Cause/No Cause findings

• Request Notice of Right to Sue• must request RTS before cause/no cause determination

• download Request from http://www.dolir.missouri.gov/hr/sue.htm

• 90 days to file lawsuit in Circuit Court from date RTS issue

• must also be within 2 years from date of discrimination

• order MHRC/EEOC file

• Missouri Human Rights Commission• Jefferson City, PO Box 1129, Jefferson City, MO 65102-1129, mchr@dolir.mo.gov

• Toll Free Complaint Hotline: 1-877-781-4236

• http://www.dolir.missouri.gov/hr/

www.dolir.missouri.gov/hr/charge.htmMCHR-27 (4-99) AI

MISSOURI DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONSCOMMISSION ON HUMAN RIGHTS

Enter Charge Number

FEPA

EEOC

This form is affected by the Privacy Act of 1974; see Privacy Act Statement before completing this form.

Name (Indicate Mr., Ms., or Mrs.) Date of Birth Home Telephone No. (Include Area Code)

Street Address City, State and Zip Code County

(if more than one list below).

Name No. of Employees/Members Telephone No. (Include Area Code)

Street Address City, State and Zip Code

Name No. of Employees/Members Telephone No. (Include Area Code)

Street Address City, State and Zip Code

Cause of Discrimination based on (Check appropriate box(es)) Date Discrimination took Place

Race Color Sex(Month, Day, Year)

National Origin Religion Age

Disability Retaliation Other (Specify) Continuing Action

The Particulars Are (If additional space is needed, attach extra sheet(s)):

I want this charge filed with both the EEOC and the Missouri

Commission on Human Rights. I will advise the agencies if I change my

address or telephone number and I will cooperate fully with them in the

processing of my charge in accordance with their procedures.

– (When necessary to meet State and Local Requirements)

__________________________________________________________

I swear or affirm that I have read the above charge and that it is true to

the best of my knowledge, information and belief.

I declare under penalty of perjury that the foregoing is true and correct.

________________________________________________________

Charging Party (Signature) Date

________________________________________________________

Signature of Complainant

Subscribed and sworn to before me this date (Day, month and Year)

• Right to Jury Trial: State ex rel. Diehl v. O'Malley, 95 S.W.3d 82 (Mo. 2003)

• Individual Liability: Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238 (Mo. App. E.D. 2006), Brady v. Curators of University of Missouri, 213 S.W.3d 101 (Mo. App. E.D. 2006)

• Pregnancy Discrimination = Sex Discrimination: Self v. Midwest Orthopedics Foot & Ankle, P.C., 272 S.W.3d 364 (Mo. App. W.D. 2008)

Missouri Human Rights Act

Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. 2007)

• Summary Judgment Standard: the “contributing factor” standard is appropriately applied to a summary judgment analysis in employment discrimination cases; a plaintiff has no higher standard to survive summary judgment than is required to submit a claim to a jury

• A “genuine issue” that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts and the “genuine issue” is real, not merely argumentative, imaginary, or frivolous.

• Summary judgment should seldom be used in employment discrimination cases, because such cases are inherently fact-based and often depend on inferences rather than on direct evidence.

• The MHRA are not identical to the federal standards and can offer greater discrimination protection. If the wording in the MHRA is clear and unambiguous, then federal caselaw which is contrary to the plain meaning of the MHRA is not binding.

Missouri Human Rights Act

Damages and Equitable Relief, RSMo. § 213.085:

• Economic damages (e.g., lost wages and benefits)

• Non-economic damages (e.g., emotional distress)

• Punitive damages

• Injunction (e.g., reinstatement)

• Costs, including Attorney fees

Missouri Human Rights Act

Medical and Employment Authorizations

• State ex rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. 2006). Employee, who sought emotional distress damages in MHRA action did not place her mental or physical condition in controversy and, thus, did not waive physician-patient privilege, when she was claiming only “garden variety” emotional distress, as distinct from medically documentable injury.

• Regarding personnel files, see State ex rel. Delmar Gardens North Operating, LLC v. Gaertner, 239 S.W.3d 608 (Mo. 2007). Any discovery that is permitted of confidential personnel records must be limited to information that relates to matters put at issue in the pleadings, especially in relation to sensitive personal information.

Missouri Human Rights Act

Miscellaneous issues to consider

• Client will be thoroughly investigated by defense• prepare yourself and client!

• Mediation

• Taxes

• Settlement• 1099 v. W-2 and withholding

• confidentiality, non-disparagement clauses

• Missouri Bar Employment and Labor Committee Sample Settlement Agreement Release at http://www.mediate.com/feldacker/docs/settlement_agreement.pdf

• Resources

Resources

• www.eeoc.gov - EEOC website (enforces Title VII, ADEA, ADA, EPA and other laws)

• www.dol.gov - U.S. Dept. of Labor website, lots of good information about FLSA & FMLA

• www.dolir.missouri.gov/hr/index.asp - Missouri Commission on Human Rights

• www.timslaw.com -- Excellent online resource by fellow SASFC member Tim Willoughby

• www.nela.org – National Employment Lawyers Association (with STL & KC chapters)

• Employee Rights Litigation: Pleading and Practice, published by NELA and LEXIS

• Employment Discrimination, MoBarCLE

• Employee-Employer Law, MoBarCLE

• School Law, Chapter 5: Employment Law, MoBarCLE

• Local Government Law, Chapter 3: Employer/Employee Law, MoBarCLE

• Employment Law and Practice, Missouri Practice Series

• ERISA Litigation, Second Edition, Aspen Publishing

2009 Missouri Solo & Small Firm ConferenceFired Employee: Good Case or Waste of Time?

A pdf file of this Keynote presentation may be downloaded at: www.bdslaw.com/docs/2009SASFCFIRED.pdf