Jottings By An Employer's Lawyer

Wednesday, March 03, 2010

Changing the Statutory Employment Law in Missouri - Will it Happen?

An article in the St. Louis Business Journal reports on an effort by the Missouri business community to roll back recent state Supreme Court decisions which have caused a split between how state and federal discrimination laws are interpreted.

A Missouri management side lawyer, Bob Stewart, has one of the better quotes I have seen recently, noting that the "problem is that Missouri employment law has become out of whack with federal law." Having been almost whacked a few times in Missouri state court myself, I can identify.

I know almost nothing about Missouri politics, except that in national elections they tend to be a swing state with close elections that often seem to have a different result when I wake up in the morning than when I went to bed on election night.  If the legislative process is as close, then this could be a very interesting battle because there are clearly political heavyweights on both sides.

Among the companies which are supporting the bill are Boeing, Brown Shoe, Bunge North America, Charter Communications, Emerson, Enterprise-Rent-A-Car, Express Scripts, Graybar Electric, Peabody Energy, Schnuck Markets, Smurfit-Stone Container Corp., Solae and Solutia. They are backed by the National Federation of Independent Businesses in Missouri, the St. Louis Regional Chamber and Growth Association, the Missouri Retailers and Grocers' Association, the Missouri School Administrators' Coalition, the Cooperating School Districts of Greater St. Louis, the Missouri Associated Builders and Contractors, the Missouri Restaurant Association and the Missouri Municipal League.

Opposing the legislation are trial lawyers, the Metropolitan St. Louis Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, and the Missouri National Education Association.

Although the article does not refer to the bill number, it appears to be SB 852 [pdf]. That bill was passed out of committee and is pending action by the full Senate.

According to the Current Bill Summary, the legislation as introduced would bring state discrimination law into parity with federal discrimination law by excluding individual supervisors and managers from liability, adopting the same damage caps as are contained in Title VII, and revising the burdens of proof. It would also undo several state Supreme Court decisions, including one which ruled out a business judgment instruction.

Discrimination law developed in Missouri mostly in federal court until the state Supreme Court held there was a constitutional right to a jury trial in Diehl v. Malley (Mo. 2003). Since then, at least according to the proponents of the legislation, there has been a growing difference between federal and state law. Actually, while people have different views about the merits of whether the federal and state law should be interpreted similarly, I doubt there are many that would seriously argue that the two have not diverged in the period since Diehl.

Since I have handled some cases in Missouri I have some interest in the law, but I am more fascinated by whether or not it is possible to actually roll back what is now considered pro-employee legislation.  It is my view, that at least on the federal level it won't happen, at least not in my lifetime. As far as I know, the last time there were amendments to federal labor laws that could be said to reverse any pro-employee legislation would be 1947, with the passage of the Portal to Portal Act amendments to the Fair Labor Standards Act.

I think I posed this question to some of the academic bloggers on employment law issues before, because this is certainly not based on any extensive research. However, I am fairly certain that since I started practicing in 1975 it has not happened. Hopefully, if I am wrong, it will soon be pointed out.  That's one of the beauties of the internet.

While waiting, I will also be keeping a watchful eye on the Missouri legislature.  I must admit, that I am skeptical that it will happen. Probably not an atypical view for the "Show Me" state. But one can always hope.


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