Representative Kevin Elmer has again this legislative term filed two bills aimed at limiting the rights of workers. http://www.house.mo.gov/billsummary.aspx?bill=HB319&year=2013&code=R http://www.house.mo.gov/billsummary.aspx?bill=HB320&year=2013&code=R.
These bills are again geared to limit the rights of Whistleblowers and victims of unlawful discrimination. Please contact your state legislators and tell them that you oppose these bills. Governor Nixon has had to veto this anti-Civil Rights legislation for the last two years because it is opposite of the principles in which we as Americans believe. Please tell your legislators to vote no.
SHOW-ME FAIRNESS: Promoting Justice for Missouri Workers and Whistleblowers
Wednesday, January 30, 2013
Wednesday, April 18, 2012
Protect Whistleblowers -Stop Mo. HB2099 and SB592
The Missouri Legislature is considering two bills which will restrict the protections Missouri law affords to Whistleblowers, SB 592 and HB 2099. These bills eviscerate protections to employees who expose corporate corruption by forcing Whistleblowers to report wrongdoing only to certain employees and by reducing the types of wrongdoing reports merit protection. The bill further restricts protections by a company's number of employee and reduces punitive damage liability. These changes will reduce or eliminate a terminated whistleblower from recovering from a wrongdoing employer.
Whistleblowers are good for business, although many businesses do not seem to recognize this fact. Whistleblowing is good not only for public safety, but also for businesses. If there had been someone to blow the whistle on Bernie Madoff, think of the people and businesses that would be solvent, with their savings intact. But, whistleblowing is hard and takes a lot of courage. It takes a great deal of fortitude to report management wrongdoing for the betterment of society. People generally depend on their pay for food and shelter, and few people are willing to jeopardize their survival for the good of others.
In fact, the Missouri Legislature, at the behest of the Chamber of Commerce and some individual businesses attempting to prevent courageous citizens from coming forward to report wrongdoing at the peril of society and businesses. This attack on Whistleblowers stems from a case decided some eight years ago, Dunn v. Enterprise Leasing, where a man sued his employer because he had blown he whistle about corporate business-keeping and was terminated from his employment. He sued and the jury gave the man a substantial verdict, which was upheld by the Court of Appeals. Ever since that verdict, Missouri businesses have lobbied the legislature to prevent protections for whistleblowers. The new bill makes it harder for concerned employees to come forward, it restricts to whom they should report illegal or suspected illegal activity, it prohibits lawsuits against government and employers operating with fewer employees. The bill heavily restricts the award of punitive damages, although several years ago the Legislature passed laws require 1/2 of punitive damage awards to go to the State. This law is purportedly to stem the tidal wave of whistleblower cases brought throughout this great state.
Employment lawyers in Missouri decided to look into this alleged wave of whistleblower litigation to see how many whistleblower cases have been tried in Missouri since the Enterprise case eight years ago. And in those eight years, across the entire great state of Missouri with millions of workers, it appears there have only been eight verdicts in common law whistleblower cases. Eight cases. Two of the eight juries returned verdicts for the employer and the plaintiff got nothing.
In at least one of the cases, one that I tried, the case involved an executive director of a professional organization who stole from the company and brought in pornography. Under the proposed bill, that case could not have been brought because even though the employer was a professional association for physicians with insurance coverage, the company did not have enough employees under the proposed legislation.
Whistleblowers are rare because most people do not have the courage to criticize their bosses, no matter how much damage is done to the business or to the public. Wouldn't society and businesses be better served if an employee has the courage to speak up and complain against illegal, corrupt or immoral conduct? We have so few employees willing to come forward and help the businesses they work for by pointing out bad conduct. Do we really want it to be harder to do the right thing?
Whistleblowers are good for business, although many businesses do not seem to recognize this fact. Whistleblowing is good not only for public safety, but also for businesses. If there had been someone to blow the whistle on Bernie Madoff, think of the people and businesses that would be solvent, with their savings intact. But, whistleblowing is hard and takes a lot of courage. It takes a great deal of fortitude to report management wrongdoing for the betterment of society. People generally depend on their pay for food and shelter, and few people are willing to jeopardize their survival for the good of others.
In fact, the Missouri Legislature, at the behest of the Chamber of Commerce and some individual businesses attempting to prevent courageous citizens from coming forward to report wrongdoing at the peril of society and businesses. This attack on Whistleblowers stems from a case decided some eight years ago, Dunn v. Enterprise Leasing, where a man sued his employer because he had blown he whistle about corporate business-keeping and was terminated from his employment. He sued and the jury gave the man a substantial verdict, which was upheld by the Court of Appeals. Ever since that verdict, Missouri businesses have lobbied the legislature to prevent protections for whistleblowers. The new bill makes it harder for concerned employees to come forward, it restricts to whom they should report illegal or suspected illegal activity, it prohibits lawsuits against government and employers operating with fewer employees. The bill heavily restricts the award of punitive damages, although several years ago the Legislature passed laws require 1/2 of punitive damage awards to go to the State. This law is purportedly to stem the tidal wave of whistleblower cases brought throughout this great state.
Employment lawyers in Missouri decided to look into this alleged wave of whistleblower litigation to see how many whistleblower cases have been tried in Missouri since the Enterprise case eight years ago. And in those eight years, across the entire great state of Missouri with millions of workers, it appears there have only been eight verdicts in common law whistleblower cases. Eight cases. Two of the eight juries returned verdicts for the employer and the plaintiff got nothing.
In at least one of the cases, one that I tried, the case involved an executive director of a professional organization who stole from the company and brought in pornography. Under the proposed bill, that case could not have been brought because even though the employer was a professional association for physicians with insurance coverage, the company did not have enough employees under the proposed legislation.
Whistleblowers are rare because most people do not have the courage to criticize their bosses, no matter how much damage is done to the business or to the public. Wouldn't society and businesses be better served if an employee has the courage to speak up and complain against illegal, corrupt or immoral conduct? We have so few employees willing to come forward and help the businesses they work for by pointing out bad conduct. Do we really want it to be harder to do the right thing?
Wednesday, January 11, 2012
WE'RE BACK!!!!!!!!
Well, the 2011 legislative term ended with Governor Nixon courageously vetoing SB 188. The Governor was decisive and brave, reciting the history of the civil rights movement and the importance of equality in the workplace. The Governor was eloquent. Anyone with a conscience knew he was right. We thought the American desire for justice had prevailed in Missouri. We knew that all rational minds agreed that justice had been served. NOT SO!
The 2012 legislative session and some overly-ambitious and highly lobbied senators have offer SB 592, a worse and more unconstitutional bill than the year before, all geared to allow big business to discriminate based on race, age, sex, and disability with little consequence. It is my understanding that the bill's sponsor, or one of the Sponsors is Senator Lager. I guess these sponsors feel beholden to the businesses who support their campaigns and PACs.
Ironically, all these Senators say they want to create jobs, but in reality what they are doing is making it easier for businesses to discriminatorily fire employees with little or no consequence. Creating jobs? I think not. These are job elimination bills. Let's all try to stop this and preserve civil rights and justice in this great state.
The 2012 legislative session and some overly-ambitious and highly lobbied senators have offer SB 592, a worse and more unconstitutional bill than the year before, all geared to allow big business to discriminate based on race, age, sex, and disability with little consequence. It is my understanding that the bill's sponsor, or one of the Sponsors is Senator Lager. I guess these sponsors feel beholden to the businesses who support their campaigns and PACs.
Ironically, all these Senators say they want to create jobs, but in reality what they are doing is making it easier for businesses to discriminatorily fire employees with little or no consequence. Creating jobs? I think not. These are job elimination bills. Let's all try to stop this and preserve civil rights and justice in this great state.
Friday, April 29, 2011
Governor Nixon's Speech Vetoing SB 188
April 29, 2011
Gov. Nixon vetoes Senate Bill 188
Good afternoon. Thank you all for being here at this historic old courthouse, at this historic moment for Missouri.
It’s good to look out and see an audience that reflects the true diversity of our state.
We stand on hallowed ground, in the footsteps of Dred Scott, whose unsuccessful pursuit of freedom began here in 1846. Eleven long years later, after many trips to the courthouse, the decision of the highest court in the land, denying him his freedom, became a clarion call to end slavery.
As history teaches us, the path of justice is a rough and winding road. Abolition. Emancipation. Reformation. All three took root and blossomed forth from the bitter soil of partisanship and prejudice.
Today, much progress has been made in courthouses across this land, in the pursuit of civil rights and justice for all people. But much remains to be done.
A broad coalition of people of good will and good faith has gathered here today as we continue on our journey.
You are the people who have marched, and sacrificed and stood up for the mistreated… the forgotten… the forsaken … and made progress.
You are the people who fought to throw open doorways and tear down barriers so that people with disabilities could live full and independent lives.
How I wish that Max Starkloff and Jim Tuscher, two giants in the fight for disability rights, were still with us. They accomplished so much in their lifetimes:
Access to sidewalks, buildings and public transportation;
Access to housing;
Access to education and communication.
We fight on today, so thousands more people with disabilities can take the “next big step” … into the workplace, where their skills and talents can shine.
You are the people who changed public opinion and private dreams, so that little girls could reach the same goals as little boys, and become surgeons and fighter pilots, supreme court judges and CEOs.
We fight on today, in the spirit of Sue Shear and Harriet Woods, to shatter glass ceilings.
You are the people who fought for equality in education, housing and hiring, inspired by champions of social justice like Minnie Liddell, Norman Seay and Frankie Freeman.
We fight on today for economic justice for all.
We stand together today, to defend the principles that will forever guide the conscience of our state and our nation: that all people have certain unalienable rights…and that all people are entitled to equal protection under the law.
These principles are at the core of the Missouri Human Rights Act, which has come under attack.
On paper, the Missouri Human Rights Act says that it is unlawful to discriminate based on race, color, religion, national origin, sex, ancestry, age, or disability.
But it is more than words on paper.
It is a living covenant … and a call to action.
It calls us to treat all people with dignity and respect.
It calls us to root out discrimination wherever it festers in our state.
It calls us to stand up and speak out, so that whenever the powerful victimize the powerless, justice will surely follow.
It calls us to defend those who have suffered the humiliation and reversals of discrimination, so that they might find redress in our courts of law.
We must answer the call.
That is why -- today -- I intend to veto Senate Bill 188.
Senate Bill 188 would undermine key provisions of the Missouri Human Rights Act, rolling back decades of progress in protecting civil rights.
The bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated.
That is unacceptable.
It is not who we are.
And it stops here.
Missouri is a state that welcomes all people, and believes that everyone should be treated with dignity and respect.
That means we have an obligation to put a stop to discrimination and dismantle barriers of prejudice wherever they exist -- in the workplace, in housing or in the public square.
It is no wonder, then, that this bill has drawn fire from this broad coalition of people here today, including:
the Anti-Defamation League;
the American Cancer Society;
the AARP;
the NAACP;
Paraquad;
the AFL-CIO;
the League of Women Voters;
the legislative Black Caucus;
the Missouri Association for the Deaf;
PROMO;
the National Alliance on Mental Illness;
Missouri Centers for Independent Living;
Missouri NOW;
the Urban League;
Missouri Association for Social Welfare;
the Whole Person;
our communities of faith;
and many, many more.
Each of us may see the face of discrimination from a different vantage point. But its ugliness is unmistakable in any light…from any angle.
Making it easier to discriminate against people with disabilities or cancer, against women, older workers and minorities, against those of different faiths and ethnicities, will not help us create jobs or be more competitive in a global economy.
The stakes – and the opportunities - have never been greater.
Because we live in a world where the boundaries of time, distance and culture are collapsing at the touch of a finger. Technology allows us to bear witness to the triumphs and tragedies of the human condition - from tsunamis to revolutions - in real time.
We will create new opportunities, and solve mankind’s most pressing problems, as allies.
And true allies are those who can see beyond the surface of what makes people different, to reveal the substance of what makes people the same.
The more we learn to understand and respect one another, the more practiced we become at treating everyone with compassion and dignity, the better citizens of the world we will become.
To thrive in a global economy and uphold these values that we share, Missouri must be a state that continues to move forward – not backward - when it comes to civil rights and equal opportunity.
For decades, the Missouri Human Rights Act has proved its strength - as both sword and shield - protecting the rights of people like Natalie and Tim.
Natalie had worked for her employer for six years when she was told there was a cutback. Her job had been eliminated. She had been given good job evaluations, raises and bonuses. She was in her 50s, with a child still in college. Her employer told her it had nothing to do with her performance – just economics.
But shortly after letting her go, her employer replaced her with a 24-year-old worker with less experience and fewer qualifications. She sued her employer under the Missouri Human Rights Act, and the case was successfully resolved.
Tim is a man who is developmentally disabled. For nearly 18 years he held the same job: washing dishes at a hotel. Tim lived with his mom, a busy registered nurse. His earnings helped keep their household afloat, and paid for his medical care.
He was named employee of the month twice, got regular pay raises for good performance, and was never disciplined for poor work.
But that all changed when he got a new boss. The new boss started writing Tim up for things Tim didn’t understand… and couldn’t read. Eventually, Tim was fired.
So Tim and his mom, who now had to work two jobs, appealed to the court that Tim had been discriminated against because of his disability. The new boss tried to get the lawsuit dismissed. But under the Missouri Human Rights Act, Tim was protected from unfair treatment.
Protecting human rights is not a matter of politics.
It is a matter of principle.
That is why today I am vetoing Senate Bill 188.
With just ten days left in this legislative session, there are those who will be putting all their energy and effort into overturning my action.
We must lock arms and go forward from this place to block those efforts. This is the time to make your voices heard in the halls of the Capitol.
We must work together to impress upon all Missourians, the importance of protecting human rights and human dignity.
We will not cede one inch of ground it has taken decades to gain.
Because in that time, we have come to see that the civil rights of all, are inextricably bound to the rights of the few.
The path of justice is a rough and winding road.
Our journey is not over.
We will not turn back now.
We will not rest while racial slurs poison the workplace.
We will not rest while faith is the target of bigotry.
We will not rest while people with disabilities are exploited and excluded.
We will go forward – together - to accomplish the unfinished work of our state and our nation.
Related to this page
Press release: Gov. Nixon vetoes Senate Bill 188
Gov. Nixon vetoes Senate Bill 188
Good afternoon. Thank you all for being here at this historic old courthouse, at this historic moment for Missouri.
It’s good to look out and see an audience that reflects the true diversity of our state.
We stand on hallowed ground, in the footsteps of Dred Scott, whose unsuccessful pursuit of freedom began here in 1846. Eleven long years later, after many trips to the courthouse, the decision of the highest court in the land, denying him his freedom, became a clarion call to end slavery.
As history teaches us, the path of justice is a rough and winding road. Abolition. Emancipation. Reformation. All three took root and blossomed forth from the bitter soil of partisanship and prejudice.
Today, much progress has been made in courthouses across this land, in the pursuit of civil rights and justice for all people. But much remains to be done.
A broad coalition of people of good will and good faith has gathered here today as we continue on our journey.
You are the people who have marched, and sacrificed and stood up for the mistreated… the forgotten… the forsaken … and made progress.
You are the people who fought to throw open doorways and tear down barriers so that people with disabilities could live full and independent lives.
How I wish that Max Starkloff and Jim Tuscher, two giants in the fight for disability rights, were still with us. They accomplished so much in their lifetimes:
Access to sidewalks, buildings and public transportation;
Access to housing;
Access to education and communication.
We fight on today, so thousands more people with disabilities can take the “next big step” … into the workplace, where their skills and talents can shine.
You are the people who changed public opinion and private dreams, so that little girls could reach the same goals as little boys, and become surgeons and fighter pilots, supreme court judges and CEOs.
We fight on today, in the spirit of Sue Shear and Harriet Woods, to shatter glass ceilings.
You are the people who fought for equality in education, housing and hiring, inspired by champions of social justice like Minnie Liddell, Norman Seay and Frankie Freeman.
We fight on today for economic justice for all.
We stand together today, to defend the principles that will forever guide the conscience of our state and our nation: that all people have certain unalienable rights…and that all people are entitled to equal protection under the law.
These principles are at the core of the Missouri Human Rights Act, which has come under attack.
On paper, the Missouri Human Rights Act says that it is unlawful to discriminate based on race, color, religion, national origin, sex, ancestry, age, or disability.
But it is more than words on paper.
It is a living covenant … and a call to action.
It calls us to treat all people with dignity and respect.
It calls us to root out discrimination wherever it festers in our state.
It calls us to stand up and speak out, so that whenever the powerful victimize the powerless, justice will surely follow.
It calls us to defend those who have suffered the humiliation and reversals of discrimination, so that they might find redress in our courts of law.
We must answer the call.
That is why -- today -- I intend to veto Senate Bill 188.
Senate Bill 188 would undermine key provisions of the Missouri Human Rights Act, rolling back decades of progress in protecting civil rights.
The bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated.
That is unacceptable.
It is not who we are.
And it stops here.
Missouri is a state that welcomes all people, and believes that everyone should be treated with dignity and respect.
That means we have an obligation to put a stop to discrimination and dismantle barriers of prejudice wherever they exist -- in the workplace, in housing or in the public square.
It is no wonder, then, that this bill has drawn fire from this broad coalition of people here today, including:
the Anti-Defamation League;
the American Cancer Society;
the AARP;
the NAACP;
Paraquad;
the AFL-CIO;
the League of Women Voters;
the legislative Black Caucus;
the Missouri Association for the Deaf;
PROMO;
the National Alliance on Mental Illness;
Missouri Centers for Independent Living;
Missouri NOW;
the Urban League;
Missouri Association for Social Welfare;
the Whole Person;
our communities of faith;
and many, many more.
Each of us may see the face of discrimination from a different vantage point. But its ugliness is unmistakable in any light…from any angle.
Making it easier to discriminate against people with disabilities or cancer, against women, older workers and minorities, against those of different faiths and ethnicities, will not help us create jobs or be more competitive in a global economy.
The stakes – and the opportunities - have never been greater.
Because we live in a world where the boundaries of time, distance and culture are collapsing at the touch of a finger. Technology allows us to bear witness to the triumphs and tragedies of the human condition - from tsunamis to revolutions - in real time.
We will create new opportunities, and solve mankind’s most pressing problems, as allies.
And true allies are those who can see beyond the surface of what makes people different, to reveal the substance of what makes people the same.
The more we learn to understand and respect one another, the more practiced we become at treating everyone with compassion and dignity, the better citizens of the world we will become.
To thrive in a global economy and uphold these values that we share, Missouri must be a state that continues to move forward – not backward - when it comes to civil rights and equal opportunity.
For decades, the Missouri Human Rights Act has proved its strength - as both sword and shield - protecting the rights of people like Natalie and Tim.
Natalie had worked for her employer for six years when she was told there was a cutback. Her job had been eliminated. She had been given good job evaluations, raises and bonuses. She was in her 50s, with a child still in college. Her employer told her it had nothing to do with her performance – just economics.
But shortly after letting her go, her employer replaced her with a 24-year-old worker with less experience and fewer qualifications. She sued her employer under the Missouri Human Rights Act, and the case was successfully resolved.
Tim is a man who is developmentally disabled. For nearly 18 years he held the same job: washing dishes at a hotel. Tim lived with his mom, a busy registered nurse. His earnings helped keep their household afloat, and paid for his medical care.
He was named employee of the month twice, got regular pay raises for good performance, and was never disciplined for poor work.
But that all changed when he got a new boss. The new boss started writing Tim up for things Tim didn’t understand… and couldn’t read. Eventually, Tim was fired.
So Tim and his mom, who now had to work two jobs, appealed to the court that Tim had been discriminated against because of his disability. The new boss tried to get the lawsuit dismissed. But under the Missouri Human Rights Act, Tim was protected from unfair treatment.
Protecting human rights is not a matter of politics.
It is a matter of principle.
That is why today I am vetoing Senate Bill 188.
With just ten days left in this legislative session, there are those who will be putting all their energy and effort into overturning my action.
We must lock arms and go forward from this place to block those efforts. This is the time to make your voices heard in the halls of the Capitol.
We must work together to impress upon all Missourians, the importance of protecting human rights and human dignity.
We will not cede one inch of ground it has taken decades to gain.
Because in that time, we have come to see that the civil rights of all, are inextricably bound to the rights of the few.
The path of justice is a rough and winding road.
Our journey is not over.
We will not turn back now.
We will not rest while racial slurs poison the workplace.
We will not rest while faith is the target of bigotry.
We will not rest while people with disabilities are exploited and excluded.
We will go forward – together - to accomplish the unfinished work of our state and our nation.
Related to this page
Press release: Gov. Nixon vetoes Senate Bill 188
Monday, April 25, 2011
Governor to Veto SB 188 on Friday, April 29, 2011
The Missouri Governor has issued a statement that he is vetoing SB 188 - the Enterprise Bill which would strip Missourians of civil rights advances - on Friday, April 29, 2011. The veto will be at a public meeting. Governor's website Thank you to everyone who worked so hard to defeat this unfair legislation. Special thanks to Legislators who stood against pressure to do the right thing.
Wednesday, March 30, 2011
Post from St. Louis Beacon - Changing Missouri Human Rights Act: Reform or Regression
| By William H. Freivogel, special to the Beacon |
| Posted 11:17 am, Mon., 3.28.11 |
The Maryland Heights Police Department fired Capt. Douglas L. Daugherty in 2002 as physically unfit for frontline duty. When he complained to the chief that he was being fired because he was 59 years old, the chief agreed. But when Daugherty filed an age discrimination suit, a judge threw it out before trial. Across town at Mosby Elsevier, a pharmaceutical publisher in Maryland Heights, Randy Francin was running into trouble with his new boss. He told the supervisor that he was going to have to take family medical leave because his wife was dying of ALS -- Lou Gehrig’s disease. A month later, the firm fired Francin. When he sued alleging discrimination based on association with a disabled person, a judge threw out the case without a trial. Both Daugherty and Francin appealed. In the Daughtery case, the Missouri Supreme Court ruled unanimously in 2007 that alleged victims of discrimination should get a jury trial if they show that discrimination may have been “a contributing factor” in their firing. Now, the Missouri General Assembly is moving swiftly to overturn that decision and deny people like Daugherty and Francin the opportunity to tell their stories to a jury. SB 188 would change the Missouri Human Rights Act by making it easier for judges to throw out cases before trial. The bill, which has passed the Senate and is expected to be taken up in the House this week, is backed by about 50 businesses and government employers. It is part of the Missouri Chamber of Commerce’s “Fix the Six” legislative agenda to create more jobs. The business interests say that making Missouri less friendly to discrimination suits makes it more friendly to employers. The bill is opposed by civil rights groups such as Paraquad, the AARP and the NAACP. They say that victims of discrimination should have a chance to have a jury decide their cases. One provision of the bill would remove the legal protection of whistleblowers who lose their jobs after warning companies or government agencies that they are about to violate the law. That provision is commonly referred to in the Legislature as the “Enterprise bill” because Enterprise Rent-a-Car of Clayton has been trying to enact it ever since 2005 when it lost a whistleblower suit filed by its fired corporate comptroller. (That portion of the bill is explained in a previous Beacon article.) JURY TRIALS Shortly after Daugherty joined the Maryland Heights police department in 1986, he was hit while on duty by a drunk driver. He returned to the force a year later and was promoted to captain in 1999. But back problems growing out of the accident forced him to miss work, and he was discharged in 2002 at age 59. A physical exam found him fit for captain’s work but unfit for front-line duty. Capt. Daugherty complained to Police Chief Thomas O’Connor, his brother-in-law, that he was being fired because of his age. Chief O’Connor agreed in a conversation that Daugherty taped, although he later said he was just trying to appease his relative. St. Louis County Circuit Judge B.C. Drumm Jr. decided there wasn’t enough evidence for the case to go to trial. The Missouri Supreme Court reversed Judge Drumm in a unanimous opinion. Judge Mary Russell wrote that Capt. Daugherty had produced evidence that discrimination may have been “a contributing factor” in his dismissal, and that he should have a chance to convince a jury. Maryland Heights ended up settling the case for a reported $775,000. At the Mosby Elsevier pharmaceutical publishing company in Maryland Heights, Francin was running into a similar problem in the summer of 2004. After 13 years at the company, Francin told a new boss that his wife was dying of ALS and he would have to take off some family leave. Ten days later, his boss began the process of firing Francin. When he went home and told his wife, Ann, about the dismissal she “couldn’t speak because of her disease. She just seemed sad,” he recalled in an interview. “I called the suicide hotline. I was so upset. I had lost my job, my wife was dying and I was depressed. I thought I had been dealt with very unfairly.” Ann died on Valentine’s Day 2005 and Francin went to court. The company claimed that it had fired Francin because of mistakes he made in his job as associate database editor and persuaded St. Louis County Circuit Court Judge James Hartenbach to throw out the case before trial. A state appeals court disagreed. Relying on the Supreme Court’s Daugherty decision, it found that Francin had enough evidence that discrimination was “a contributing factor” in his firing that he should get a chance to go before jury. Francin got his trial and lost. But he was glad he had his chance to go before a jury. “It was emotional for me, telling my story,” he said. “There were some jurors who seemed to be very supportive and got a little teary. It was important for me to have told my story and to have gotten to go all the way. I just felt as though I had to do this. It was a good, empowering experience.” If SB 188 had been law, Francin would not have gotten his jury trial and Daugherty would not have received his settlement. LIKE FEDERAL LAW SB 188 explicitly overturns the Daugherty decision, naming it as one of several decisions it is overruling. Workers would have to show that discrimination was “a motivating factor” in a firing, not just “a contributing factor.” That means that the worker would have to show that discrimination was about 50 percent of the firing decision rather than about one-third. In addition, the bill also would bar lawsuits against the individual supervisor accused of the discriminatory conduct even if that supervisor were the primary wrongdoer. The bill also sets a cap on damages that ranges from $50,000 to $300,000. The changes would affect discrimination cases involving race, color, religion, national origin, ancestry, sex, age and disability. One argument in favor of the measure is that it would bring state discrimination law closer in line with federal discrimination law. More cases would be thrown out of court before expensive trials, thus providing employers with greater economic certainty. Daniel P. Meehan, president of the Missouri Chamber of Commerce, wrote in an op-ed piece in the Kansas City Star: “The simple truth: The bill would bring Missouri closer to the federal standards that prohibit discrimination as set in the 1964 Civil Rights Act.” Opponents of SB 188 say that this similarity to federal law is part of the problem. Federal lawsuits involving job discrimination are much more likely to be thrown out by judges before trial than other kinds of lawsuits. A 2008 report by the Federal Judicial Center found that three times as many employment discrimination cases ended before trial as other civil cases. The win rate of federal employment discrimination cases between 1979 and 2006 was 15 percent, far lower than the 51 percent for cases that do not involve job discrimination, according to a study by Kevin M. Clermont and Stewart J. Schwab of Cornell Law School. Donna Harper, who was Francin’s lawyer, says it doesn’t make sense for the conservative legislators to parrot federal law. “There was a lot of talk about federalism. The bill's Republican supporters don’t want the Feds dictating to them in any area except where it helps businesses. They don’t want them dictating on gun control but they do here.” Harper said she studied the states surrounding Missouri to see if their job discrimination laws were more business friendly than Missouri’s. She said she found they weren’t. “Illinois has individual liability for the supervisor who discriminates, but Missouri wants to wipe it out. Some other states have laws that protect on the basis of marital status, sexual orientation, military service and even whether they smoke or don’t smoke. In other words, many states provide greater protection than Missouri does. “These guys come up to the Legislature with their arguments that Missouri is an outlier, that just isn’t true. Type in Google and ‘business friendly’ and you see that Missouri is 16 or 17 on business friendly list… . This whole thing is just ludicrous…. Fewer than 300 people each year get a right to sue letter. … I attended a committee hearing three or four weeks ago and not a single one of these lawyer-lobbyists could name a single business that would not locate here because of this law.” Meehan disagrees. “It’s intuitive that if we keep business costs low and provide fairness in the courts for both employers and employees, more businesses will move and expand in our state.” A spokesperson for Gov. Jay Nixon said the governor does not comment on bills during the legislative process. William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger. |
Sunday, March 27, 2011
Great Article Reposted From St. Louis Beacon - So-Called Enterprise Bill Would Weaken Protection for Whistleblowers
By William H. Freivogel, Special to the Beacon
Posted 12:22 pm, Fri., 3.25.11
When legislators or lobbyists talk about a bill in the Missouri General Assembly that would weaken protection for whistleblowers, they often call it the "Enterprise bill."
The reason is that Enterprise Rent-a-Car of Clayton has made it a top legislative priority for the past five years, ever since the firm lost a whistleblower lawsuit filed by its fired corporate comptroller, Thomas P. Dunn.
The Senate-passed version of the whistleblower provision is expected to come up in the House soon after the members return from recess. The bill would remove whistleblower protection from an employee who warned a company it was about to violate a law. Under the bill, whistleblower protection would kick in only after the company had actually violated the law. So a whistleblower would not be protected while trying to prevent illegal conduct.
"Why would anyone want to wait until a nuclear plant melts down or Deepwater Horizon blows up before extending protection to a whistleblower who could prevent a disaster like that?" asked Matthew Ghio, one of the lawyers who represented Dunn. "Dunn blew the whistle (at Enterprise) before any of the accounting scandals at Enron or WorldCom that involved Arthur Andersen. There still would be an Arthur Andersen today if Tom had worked there."
Dunn testified that he was fired after taking the position that Enterprise was not following the accounting principles required of a public company. At the time of the dispute, Enterprise was planning to go public, although it later decided against that course. To go public, it needed Dunn to attest to the company's adherence to generally accepted accounting principles. If the legislation now favored by Enterprise had been law when Dunn challenged his firing, Enterprise would have won the case.
PERSONAL AFFRONT
Lawyers and lobbyists familiar with the court case and subsequent legislative proposals from the firm say that some Enterprise executives took the case personally.
Friends and associates of Lisa VanAmburg, Dunn's main lawyer at the time, say that Donald L. Ross, president of Enterprise Rent-A-Car Canada Limited, opposed VanAmburg for a judgeship because of her role in the case. Ross is a member of Missouri's Appellate Judicial Commission.
Raymond T. Wagner, vice president of government and public affairs for Enterprise, has led the company's effort to pass the bill during the past several legislative sessions, lawyers and lobbyists say.
Neither Ross nor Wagner was available for comment. Gordon Reel, assistant vice president for government and public affairs, said the company's main aim was to "clarify the law in regard to whistleblowers and set the right standards for public policy."
Reel said that Missouri's whistleblower protections are based on case law decided by the courts, not statutory law passed by the legislature. He maintained that the court in the Dunn case had departed from the legal interpretation that had prevailed in previous decades.
"Recent court decisions had been all over the map, not setting out clear standards. We felt like ... we should settle this once and for all."
Reel said critics try to "sensationalize" the issue by citing examples of a nuclear reactor meltdown or the Deepwater Horizon disaster. If either a nuclear company or BP committed illegal acts before meltdowns or explosions, a whistleblower would be protected under SB 188 for blowing the whistle before disaster struck, he said.
Reel said he was unable to comment on Ross's later encounter with VanAmsburg relating to the judgeship.
Ghio, Dunn's lawyer, said the Dunn decision, not the Enterprise bill, was consistent with past law on whistleblowers. "He cannot point to one Missouri public policy case prior to Dunn that held a whistleblower was only protected if the crime had occurred or the violation of a statute, rule or regulation had happened," he said. "Nearly all whistleblower protection statutes use a reasonable or good faith belief standard to afford the whistleblower protected status."
REFUSING TO SIGN OFF
The Enterprise case predates the famous accounting scandals of the past decade. Here is the sequence of events based on a 2005 opinion by Judge Booker T. Shaw of the Missouri Court of Appeals for the Eastern District:
In 1999, Enterprise was making preparations to go public. This required Dunn, the corporate comptroller, to attest that Enterprise was complying with the generally accepted accounting principles required of all public firms.
At the time, Enterprise was depreciating its cars at the rate of 2 percent per month. That rate, which overstated the depreciation, was permissible for privately held firms like Enterprise, but it did not meet generally accepted accounting principles required of public companies.
John O'Connell, Enterprise's chief financial officer and Dunn's boss, told Dunn that Jack Taylor, the company's founder, and his son, Andy, the president and CEO, were not going to change the depreciation policy. Dunn maintained that because of the depreciation policy he could not give the needed compliance statement. Shortly thereafter, Dunn was put on probation. He was fired in January 2001 and then sued for being discharged for his whistleblowing activities.
Company executives testified at the trial that Dunn had been a domineering boss, unpopular with his subordinates and had been fired for that reason. His actions relating to the accounting policies had nothing to do with it, they maintained.
A key issue was whether the accounting issue came up at a late 2000 board meeting at which the public offering was discussed. The meeting occurred just before Dunn was fired. Enterprise officials testified that the issue did not come up and minutes of the meeting appeared to back up that view.
But lawyers for Dunn found an outside director who contradicted this testimony. He was Byron Trott of the Chicago office of Goldman Sachs.
Ghio recalled it this way in a recent email: "They all (Enterprise executives) said the accounting issues weren't discussed but Trott had notes from the meeting - that he attended by conference call because he was snowed in in Chicago and could not travel to STL for the meeting -- where the three accounting issues that Tom had been fighting for a year were discussed. He even produced the power point slides for the board to prove it."
VanAmburg gave a tough closing argument in which she said that Enterprise officials, including Ross, had not told the truth about the board meeting. A jury returned a $4 million verdict, later set aside by the trial court for technical legal reasons.
The case was appealed to the state court of appeals, which ruled against Enterprise's theory of the law. Enterprise maintained that, because Dunn never had violated the law and the company never had gone public, he could not claim to have been discharged for whistleblowing. An illegal act must occur if a discharged employee is to claim whistleblower status, it maintained.
Judge Shaw disagreed, concluding that an employee fired for objecting in advance to practices he reasonably believes violate a public policy - such as security law - should be protected from firing.
The case would have gone back for a new trial, but the company settled. The terms of the settlement are confidential and Dunn agreed to confidentiality as part of the deal.
ANGER LINGERS
VanAmburg became a circuit judge not long after the trial. In 2009, she applied for an appellate judgeship. As part of that process, she had an interview with Enterprise's Ross, who had been appointed to the Appellate Judicial Commission by former Gov. Matt Blunt. Ross was a citizen member of the commission, which is part of the nonpartisan court plan.
After that Sept. 15, 2009, meeting with Ross, VanAmburg complained to associates that Ross had cited the Enterprise case as a reason he would not support her for the judgeship. She told legal associates that Ross complained that her closing argument was unethical and unfounded and occurred when Ross's wife was sitting next to him in the courtroom. Ross vowed that even though he was only one vote on the judicial commission he would fight like hell to block her, VanAmburg told her friends.
Van Amburg declined comment. She did say, however, that "I can say I intend to apply again and I am considering asking him to recuse himself."
THE 'ENTERPRISE BILL'
Year after year since the 2005 settlement, a bill supported by Enterprise has been introduced in the legislature to enact Enterprise's view of the law.
Companies supporting SB 188 and HB 205
American Dehydrated Foods Inc.
Anheuser-Busch
Associated Industries of Missouri
AT&T
Boeing
Brown Shoe
Bunge North America
Charter Communications
Covidien
Edward Jones
Emerson
Enterprise Holdings
Express Scripts
Firmenich
GoJet Airlines LLC
Graybar Electric
Greater Kansas City Chamber of Commerce
Macy's
Missouri Cable Telecommunications Association
Missouri Chamber of Commerce & Industry
Missouri Municipal League
Missouri Restaurant Association
Missouri Retailers Association
Missouri School Boards Association
National Federal of Independent Business
Peabody Energy
Schnuck Markets Inc.
Shop 'N Save Warehouse Foods INC.
Smurfit-Stone Container Corp.
Solae
Solutia
Springfield Area Chamber of Commerce
St. Louis Regional Chamber & Growth Association
Systems Service Enterprises Inc.
Trans State Airlines LLC
Trans States Holdings Inc.
Vatterott College
XTRA
Sharon Jones, director of government relations for the Missouri Association of Trial Attorneys, said in an interview that her organization was asked by one sponsor, Sen. Rob Mayer, R-Dexter, to negotiate with Enterprise to try to come up with a compromise bill.
"It has been a one-company bill since 2005," said Jones.
Former State Sen. Joan Bray, D-University City, agreed. ' "It was called the 'Enterprise bill,'" she said. "The motivation was very well known."
Mayer did not respond to a request for comment.
In addition to having to wait until the illegal act is committed, the bill would weaken whistleblower protections in three other ways:
The whistleblower would have to prove that the act he complained about was actually illegal, not just that he believed in good faith that it was illegal.
The whistleblower would have to prove that blowing the whistle was "a motivating factor" in the firing instead of just "a contributing factor." To show it is a motivating factor the whistleblower has to show that it was roughly 50 percent responsible, rather than 33 percent.
Damages to a successful whistleblower are capped at from $50,000 to $300,000, whereas current law contains no caps.
Reel, the Enterprise vice president, said it was unfair to say that only Enterprise supported SB 188. He noted that the bill, and its House version, HB 205, have the support of 50 business and governmental organizations.
The whistleblower provisions are part of a much broader piece of legislation that makes it harder for victims of discrimination to win suits under the state human rights law.
The Dunn decision is not the only state court discrimination case that would be overturned by the legislation, Reel noted. The bill names several age and disability decisions it would also overturn.
The entire bill has the support of the Missouri Chamber of Commerce, which includes it as one of its "Fix the Six" bills to promote more jobs in the state. A spokesperson for Gov. Jay Nixon said the governor does not comment on bills during the legislative process.
Coming up: Weakening Missouri's Human Rights Act.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger.
Posted 12:22 pm, Fri., 3.25.11
When legislators or lobbyists talk about a bill in the Missouri General Assembly that would weaken protection for whistleblowers, they often call it the "Enterprise bill."
The reason is that Enterprise Rent-a-Car of Clayton has made it a top legislative priority for the past five years, ever since the firm lost a whistleblower lawsuit filed by its fired corporate comptroller, Thomas P. Dunn.
The Senate-passed version of the whistleblower provision is expected to come up in the House soon after the members return from recess. The bill would remove whistleblower protection from an employee who warned a company it was about to violate a law. Under the bill, whistleblower protection would kick in only after the company had actually violated the law. So a whistleblower would not be protected while trying to prevent illegal conduct.
"Why would anyone want to wait until a nuclear plant melts down or Deepwater Horizon blows up before extending protection to a whistleblower who could prevent a disaster like that?" asked Matthew Ghio, one of the lawyers who represented Dunn. "Dunn blew the whistle (at Enterprise) before any of the accounting scandals at Enron or WorldCom that involved Arthur Andersen. There still would be an Arthur Andersen today if Tom had worked there."
Dunn testified that he was fired after taking the position that Enterprise was not following the accounting principles required of a public company. At the time of the dispute, Enterprise was planning to go public, although it later decided against that course. To go public, it needed Dunn to attest to the company's adherence to generally accepted accounting principles. If the legislation now favored by Enterprise had been law when Dunn challenged his firing, Enterprise would have won the case.
PERSONAL AFFRONT
Lawyers and lobbyists familiar with the court case and subsequent legislative proposals from the firm say that some Enterprise executives took the case personally.
Friends and associates of Lisa VanAmburg, Dunn's main lawyer at the time, say that Donald L. Ross, president of Enterprise Rent-A-Car Canada Limited, opposed VanAmburg for a judgeship because of her role in the case. Ross is a member of Missouri's Appellate Judicial Commission.
Raymond T. Wagner, vice president of government and public affairs for Enterprise, has led the company's effort to pass the bill during the past several legislative sessions, lawyers and lobbyists say.
Neither Ross nor Wagner was available for comment. Gordon Reel, assistant vice president for government and public affairs, said the company's main aim was to "clarify the law in regard to whistleblowers and set the right standards for public policy."
Reel said that Missouri's whistleblower protections are based on case law decided by the courts, not statutory law passed by the legislature. He maintained that the court in the Dunn case had departed from the legal interpretation that had prevailed in previous decades.
"Recent court decisions had been all over the map, not setting out clear standards. We felt like ... we should settle this once and for all."
Reel said critics try to "sensationalize" the issue by citing examples of a nuclear reactor meltdown or the Deepwater Horizon disaster. If either a nuclear company or BP committed illegal acts before meltdowns or explosions, a whistleblower would be protected under SB 188 for blowing the whistle before disaster struck, he said.
Reel said he was unable to comment on Ross's later encounter with VanAmsburg relating to the judgeship.
Ghio, Dunn's lawyer, said the Dunn decision, not the Enterprise bill, was consistent with past law on whistleblowers. "He cannot point to one Missouri public policy case prior to Dunn that held a whistleblower was only protected if the crime had occurred or the violation of a statute, rule or regulation had happened," he said. "Nearly all whistleblower protection statutes use a reasonable or good faith belief standard to afford the whistleblower protected status."
REFUSING TO SIGN OFF
The Enterprise case predates the famous accounting scandals of the past decade. Here is the sequence of events based on a 2005 opinion by Judge Booker T. Shaw of the Missouri Court of Appeals for the Eastern District:
In 1999, Enterprise was making preparations to go public. This required Dunn, the corporate comptroller, to attest that Enterprise was complying with the generally accepted accounting principles required of all public firms.
At the time, Enterprise was depreciating its cars at the rate of 2 percent per month. That rate, which overstated the depreciation, was permissible for privately held firms like Enterprise, but it did not meet generally accepted accounting principles required of public companies.
John O'Connell, Enterprise's chief financial officer and Dunn's boss, told Dunn that Jack Taylor, the company's founder, and his son, Andy, the president and CEO, were not going to change the depreciation policy. Dunn maintained that because of the depreciation policy he could not give the needed compliance statement. Shortly thereafter, Dunn was put on probation. He was fired in January 2001 and then sued for being discharged for his whistleblowing activities.
Company executives testified at the trial that Dunn had been a domineering boss, unpopular with his subordinates and had been fired for that reason. His actions relating to the accounting policies had nothing to do with it, they maintained.
A key issue was whether the accounting issue came up at a late 2000 board meeting at which the public offering was discussed. The meeting occurred just before Dunn was fired. Enterprise officials testified that the issue did not come up and minutes of the meeting appeared to back up that view.
But lawyers for Dunn found an outside director who contradicted this testimony. He was Byron Trott of the Chicago office of Goldman Sachs.
Ghio recalled it this way in a recent email: "They all (Enterprise executives) said the accounting issues weren't discussed but Trott had notes from the meeting - that he attended by conference call because he was snowed in in Chicago and could not travel to STL for the meeting -- where the three accounting issues that Tom had been fighting for a year were discussed. He even produced the power point slides for the board to prove it."
VanAmburg gave a tough closing argument in which she said that Enterprise officials, including Ross, had not told the truth about the board meeting. A jury returned a $4 million verdict, later set aside by the trial court for technical legal reasons.
The case was appealed to the state court of appeals, which ruled against Enterprise's theory of the law. Enterprise maintained that, because Dunn never had violated the law and the company never had gone public, he could not claim to have been discharged for whistleblowing. An illegal act must occur if a discharged employee is to claim whistleblower status, it maintained.
Judge Shaw disagreed, concluding that an employee fired for objecting in advance to practices he reasonably believes violate a public policy - such as security law - should be protected from firing.
The case would have gone back for a new trial, but the company settled. The terms of the settlement are confidential and Dunn agreed to confidentiality as part of the deal.
ANGER LINGERS
VanAmburg became a circuit judge not long after the trial. In 2009, she applied for an appellate judgeship. As part of that process, she had an interview with Enterprise's Ross, who had been appointed to the Appellate Judicial Commission by former Gov. Matt Blunt. Ross was a citizen member of the commission, which is part of the nonpartisan court plan.
After that Sept. 15, 2009, meeting with Ross, VanAmburg complained to associates that Ross had cited the Enterprise case as a reason he would not support her for the judgeship. She told legal associates that Ross complained that her closing argument was unethical and unfounded and occurred when Ross's wife was sitting next to him in the courtroom. Ross vowed that even though he was only one vote on the judicial commission he would fight like hell to block her, VanAmburg told her friends.
Van Amburg declined comment. She did say, however, that "I can say I intend to apply again and I am considering asking him to recuse himself."
THE 'ENTERPRISE BILL'
Year after year since the 2005 settlement, a bill supported by Enterprise has been introduced in the legislature to enact Enterprise's view of the law.
Companies supporting SB 188 and HB 205
American Dehydrated Foods Inc.
Anheuser-Busch
Associated Industries of Missouri
AT&T
Boeing
Brown Shoe
Bunge North America
Charter Communications
Covidien
Edward Jones
Emerson
Enterprise Holdings
Express Scripts
Firmenich
GoJet Airlines LLC
Graybar Electric
Greater Kansas City Chamber of Commerce
Macy's
Missouri Cable Telecommunications Association
Missouri Chamber of Commerce & Industry
Missouri Municipal League
Missouri Restaurant Association
Missouri Retailers Association
Missouri School Boards Association
National Federal of Independent Business
Peabody Energy
Schnuck Markets Inc.
Shop 'N Save Warehouse Foods INC.
Smurfit-Stone Container Corp.
Solae
Solutia
Springfield Area Chamber of Commerce
St. Louis Regional Chamber & Growth Association
Systems Service Enterprises Inc.
Trans State Airlines LLC
Trans States Holdings Inc.
Vatterott College
XTRA
Sharon Jones, director of government relations for the Missouri Association of Trial Attorneys, said in an interview that her organization was asked by one sponsor, Sen. Rob Mayer, R-Dexter, to negotiate with Enterprise to try to come up with a compromise bill.
"It has been a one-company bill since 2005," said Jones.
Former State Sen. Joan Bray, D-University City, agreed. ' "It was called the 'Enterprise bill,'" she said. "The motivation was very well known."
Mayer did not respond to a request for comment.
In addition to having to wait until the illegal act is committed, the bill would weaken whistleblower protections in three other ways:
The whistleblower would have to prove that the act he complained about was actually illegal, not just that he believed in good faith that it was illegal.
The whistleblower would have to prove that blowing the whistle was "a motivating factor" in the firing instead of just "a contributing factor." To show it is a motivating factor the whistleblower has to show that it was roughly 50 percent responsible, rather than 33 percent.
Damages to a successful whistleblower are capped at from $50,000 to $300,000, whereas current law contains no caps.
Reel, the Enterprise vice president, said it was unfair to say that only Enterprise supported SB 188. He noted that the bill, and its House version, HB 205, have the support of 50 business and governmental organizations.
The whistleblower provisions are part of a much broader piece of legislation that makes it harder for victims of discrimination to win suits under the state human rights law.
The Dunn decision is not the only state court discrimination case that would be overturned by the legislation, Reel noted. The bill names several age and disability decisions it would also overturn.
The entire bill has the support of the Missouri Chamber of Commerce, which includes it as one of its "Fix the Six" bills to promote more jobs in the state. A spokesperson for Gov. Jay Nixon said the governor does not comment on bills during the legislative process.
Coming up: Weakening Missouri's Human Rights Act.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger.
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