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Today's Poll!Legislation could make it harder for victims to win cases, would put cap on damages
Sunday, March 6, 2011
Changes to Missouri’s employment discrimination law could make it harder for victims to win cases against their former employer and would limit the amount of damages that plaintiffs could take home if a jury found in their favor.
With the legislation nearing final approval in the Senate, business groups and human rights advocates in the state are at odds about what the new laws will mean for businesses and employees.
The legislation would also limit the amount of damages that plaintiffs could win. The proposals would allow plaintiffs to collect back pay, with interest, but would limit punitive damages based on how many people work at the company being sued. The limits range from $50,000 for a company with six to 100 employees to a maximum of $300,000 from companies with 500 or more employees.
The House passed a bill to make the changes last month. The Senate gave first-round approval similar legislation this past week.
Anti-discrimination advocates say the caps on potential damages would take away the power of judges and juries to decide what award is just after hearing a victim’s testimony.
Osage Beach attorney Samuel Trapp said the damage limits would let businesses potentially budget for wrongful termination suits.
“You’ve established a price for discrimination,“ he said of the damage limits.
Business groups say capping awards and changing the legal standard in such cases would merely match Missouri’s laws to federal standards. The groups say that would give businesses more certainty about the extent to which they could be found liable.
Ray McCarty, president of Associated Industries of Missouri, said that that certainty would help draw companies to Missouri from other states in which standards differ from federal law. With those companies, he said, will come jobs.
McCarty disputed the notion that companies would use the damage caps in the legislation to plan the extent to which they would break law.
“I don’t think companies would sit down and do a cost-benefit analysis on discrimination,” he said.
AIM spokesman Nathan Dampf, said large jury awards in some discrimination cases had made businesses owners hesitant to make personnel decisions that were in their business’ best interest.
“We don’t want the employee to not be justly compensated,” he said. “But in some of these totally erroneous decisions, you’re seeing huge judgments.”
Bills in both chambers of the legislature would also change the legal standard people must meet when they sue their employer in state court alleging that they were wrongfully terminated for discriminatory reason.
Plaintiffs would have to prove that discrimination was a “motivating factor” rather than a “contributing” factor in their firing. A 2007 ruling established the latter criterion as the standard in state courts.
St. Louis attorney Kevin Dolley, who argued the 2007 case to the Missouri Supreme Court, called the proposed changes “an unfortunate step backward.”
He said the court had changed the standard because Missouri lawmakers had wanted plaintiffs to have more protections under the state’s law.
“They were simply creating the standard that complied with the original drafters’ intent which is that there should not be any discrimination in Missouri,” he said in an interview last week.
Karen Buschman, a spokeswoman for the Missouri Chamber of Commerce, said the pending the law still punishes employers if they allow discrimination in the workplace. She said the laws should be set by elected officials rather than a judge’s interpretation.
“The intent (of the pending legislation) is to make Missouri’s law outlawing discrimination mirror the federal law,” she said. “In the last five to seven years, the courts have absolutely altered our law.”
Modifying the law topped a list of half a dozen pro-business changes the Chamber has lobbied legislators to make this session.
Calling the pending legislation “devastating,” Mary Ratliff, the NAACP Missouri Conference Chair, said changing the law in hopes of spurring job growth was unfair because women, minorities and people with disabilities have to deal with increased intolerance.
“That is a sacrifice that we feel is unacceptable,” she said.
Weblink:
Discrimination bills are HB205, SB188.
Legislature: moga.mo.gov
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Comments
hkchas 2 years, 2 months ago
This will allow business owners to discriminate against their employees, and go outside normal civility & law, and pay less for their hubris...
Thanks Republicans ...
Graceful 2 years, 2 months ago
Hopefully, it will stop frivilous cases and reduce work for attorneys. Hence Mr. Trapp's opposition to this very necessary legislation.
hkchas 2 years, 2 months ago
When you one is dicriminated against , should we consider that frivilous ? Only when they discriminate against others and not you....
Graceful 2 years, 2 months ago
In your world apparently all allegations are true.
hkchas 2 years, 2 months ago
And in yours, all are false ....
Graceful 2 years, 2 months ago
Nope. I am for the right to sue I'm also for putting limitations on what can be recovered.
online_editor 2 years, 2 months ago
Would you define it as a right?
wow 2 years, 2 months ago
Although the unjustified law suits need to be stopped, reality tells us all that in most case when a valid discrimination case is brought fourth, it "is" the employer who is at fault. If passed, all this proposed legislation will do is make it easier for the criminal to conduct criminal conduct...and if caught the criminal will be called upon to pay a minimal penalty. Please tell me how that is progress?
asb 2 years, 2 months ago
Like most tort reform, this limits criminal corporate liability and reduces consumer and worker protection - in the name of stopping frivilous lawsuits. Tort is an ancient process and recognises that a judge or jury should decide compensation for crime, not a pre-defined profit-saving wrist slap.
bluesfan13 2 years, 2 months ago
I don't think that most non-business owners realize the amount of lies that former employees tell, and the extent that they get family and friends to play along out of spite for their former employers. In all too many cases, it's easier for an employer (who has done nothing wrong except fire a lazy or dangerous employee) to settle out of court, rather than put up the time, effort, and cost, only to run the very real risk of losing their business in court.
tonto 2 years, 2 months ago
Business owners like to tell their own stories. You do understand that stories told to "family and friends" don't matter in discrimination cases, right? Stories someone might have told family and friends don't help, they are called "hearsay".
To win a discrimination case, a former emp;loyee must get testimony from the former employer and co-workers, and must prove facts. The reality is that by the time a discrimination case gets into court, it's already passed through several sets of administrative and legal hoops that were set up to resolve such issues, and without damaging publicity. When an employer settles they are cutting their losses because they don't want facts to come out publicly.
bluesfan13 2 years, 2 months ago
Have you owned a business? I'm guessing by your response that you haven't.
I'm not talking just discrimination cases, but terminated employees in general.
A retirement home fires some lazy negligent worker. The fired employee makes an anonymous hotline call claiming elder abuse is taking place at that home. Health and Senior Services comes in to do a complete inspection.
They then turn around and file for unemployment, and file a case with DOLIR saying that they were terminated for reporting alleged abuse. There's a documented visit from the regulatory agency coinciding with the time the employee was fired. Why is it that you seem to think that businesses are more often in the wrong than terminated employees? There's a reason that most people get fired, so statistically speaking, people who have been fired are more likely to lie.
tonto 2 years, 2 months ago
I own a business, and I have been around long enough to hear all kinds of sob stories from former employees and former business owners. It is rough out there, and it's no place for whiners.
There are all kinds of ways that a bad employee can ruin a business, and a discrimination case is probably the least damaging. How about an oil change technician that forgets to put oil back in a customer's car? That happens once in a while. Then there's the bad former employee of a local nursing home who will probably cause more damage to that home than any discrimination case could.
The new law is about employment discrimination cases, and nothing else. You should not try to apply my comments about discrimination cases to other things. People who lie are probably more likely to get fired as well.
bluesfan13 2 years, 2 months ago
Have you read the bill? No it's not just discrimination cases. It also covers whistleblower retaliation, which in my opinion are the most damaging to employers, and the most used by terminated employees.
Take the nursing home employee you mentioned. You fire him for not changing bedpans. He makes the normal anonymous call, (even telling DHSS that the home is neglecting patients by leaving them dirty with excrement all over) and DHSS comes out to investigate. Because of the timing, he can plausibly claim that he took his info to the home first and they fired him for threatening to report them, and that they blamed him for it. Slam dunk, cash in his pocket.
tonto 2 years, 2 months ago
Check some facts, and please try to find a real case where a false complaint resulted in real damage to a real business. The reality in Missouri is that nursing homes with numerous verified complaints continue to operate. Whistleblower cases are a sham issue, added to the bill to give it an illusion of respectability.
bluesfan13 2 years, 2 months ago
I don't need to "check facts", as I know this is the case. Perhaps not with nursing homes specifically, but with many State regulated industries (home health aides, child care facilities, etc.). Smaller businesses owned by individuals who have neither the time, nor the money to face frivolous legal action.
Many of them stop with the employer simply having to pay unemployment benefits, but the threat of further action is always there. As I said, it's much easier to settle, than to go through the court process.
tonto 2 years, 2 months ago
As to regulatory matters, here's a link for nursing homes. I could provide similar links for other regulated businesses.
memberofthefamilyDOTnetFORWARDSLASHregistryFORWARDSLASHmoDOThtm
I don't know what business you are in but it's pretty easy to stop UC to bad former employees. The Division of Employment Security is quite willing to help you.
asb 2 years, 2 months ago
I understand your point. A good friend lost a business to a bad employee who lied, this is a very real problem. When tort reform can address protections for the owner AND the consumer/worker I'll sign on. But, if you read most cap and sunset language in typical corporate-sponsored tort reform, the design mostly protects the business and limits the redress available to the worker or consumer.
asb 2 years, 2 months ago
Western law generally has not had fixed tort limits for a thousand years. I'm good with that. I'm also open to damping language on punative awards, but not fixed limits, that's the jury's job.
asb 2 years, 2 months ago
sigh . . .
tonto 2 years, 2 months ago
Only if I'm guilty.
bluesfan13 2 years, 2 months ago
And that's kind of the point I've been trying to make. Guilty people want juries. Innocent ones end up settling to make things go away.
rmsberengaria 2 years, 2 months ago
Yes, England does and has for years, Loser pays laws. England does not have the silly frivolous lawsuits we do.
Daddy 2 years, 2 months ago
Just another example of the war against the working class. Bust their unions, take away their right discrimination rights, all for the protection of law breaking business owners and the rich!
Daddy 2 years, 2 months ago
Funny how business owners are so scared to go to court, an innocent man wouldn't be so afraid and would love to get their story out there, and possibly even counter sue. This bill is just another terrorist tactic by thug business leaders.
bluesfan13 2 years, 2 months ago
And exactly what would a business expect to get by counter-suing a jobless lying P-O-S who's been fired from a job for cause? You risk losing hundreds of thousands of dollars, and only have the potential to gain peanuts.
Oooooh, you might be able to get 10% of their wages if you win, but guess what...THEY DON'T HAVE A JOB!!!
Daddy 2 years, 2 months ago
Those P-O-S employees huh blues fan? Sounds like your agenda just exploded onto the scene. An employer who doesn't violate the law doesn't risk a thing. As far employers who break the law they deserve the risk!
bluesfan13 2 years, 2 months ago
My agenda against people who get fired for cause, and then make trouble against their former employer?
You bet. And NOWHERE did I say P-O-S employees. I said a jobless lying P-O-S who's been fired for cause.
Daddy 2 years, 2 months ago
Now it's the business owner getting a raw deal and juries are simply less than average intellectually? Sounds to me like business and pro-business folks who think they are above the law.
bluesfan13 2 years, 2 months ago
That's the same argument as "If you're not doing anything illegal, you shouldn't care if the government taps your phones or searches your house while you're gone."
BiggDeal 2 years, 2 months ago
How about this idea....No specific caps on actual or punative damages...but the plaintiff can only receive an amount equal to the actual damages. Any punative damages awarded by the judge or jury would have to be split 50/50 between two recognized charities of the plaintiff's and defendant's choice. This would still allow a plaintiff to be made whole, and it would still punish the defendant beyond a slap on the wrist. But it would also limit the number of frivilous lawsuits, since a plaintiff and his lawyer would no longer have the chance to 'get rich' off the punitive damages.
wcywing 2 years, 2 months ago
lets face, in the USA people love to file lawsuits, often for crazy stuff. ie a judge sues a local dry cleaners for 67 million dollars for missing a pair of trousers. he didn't thank goodness. there should changes in Tort laws. US court system is too conflict driven. Alternative dispute resloution should be used more often.
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