Missouri courts have again tipped their hats in favor of employees in a handful of employment cases, offering best practices for employers with respect to charges, workers’ compensation and arbitration.

Objections to Charge

In the first case, the Missouri Supreme Court found an employer waived its timeliness defense in an employee’s discrimination claim when it failed to raise the issue at the administrative level. The former employee had filed a charge of discrimination and retaliation under the Missouri Human Rights Act with the Missouri Commission on Human Rights 230 days after she was terminated, which is 50 days past the 180-day statutory deadline. The Commission issued a right-to-sue letter without first seeking a response from the employer.

The employee then filed suit in civil court, again alleging discrimination and retaliation under the Missouri Human Rights Act. The employer sought dismissal of the suit, arguing the employee failed to timely file her charge with the Commission. The trial court agreed and dismissed the claims, finding in favor of the employer. On appeal, the Missouri Supreme Court reversed, explaining that the 180- day time limit was a jurisdictional issue applicable to the charge filed with the Commission. The Court reasoned that when the Commission issued the right-to-sue letter, it implicitly found the employee’s claim was timely. Therefore, the Court explained, the employer waived any timeliness argument when it failed to raise the defense with the Commission either upon notice of the charge or by filing an action for judicial review after the Commission issued the right-to-sue letter.

Workers’ Compensation

The Missouri Supreme Court’s decision in a second case likely will bring an increase of Missouri workers’ compensation retaliation suits. Prior to this decision, Missouri case law applied an “exclusive causation” standard, requiring the complaining employee to prove that his filing of a workers’ compensation claim was the exclusive cause of an adverse employment action. The Court changed this by concluding the exclusive causation standard is unsupported by the statutory language. Rather, it said, the plain language of Missouri’s workers’ compensation law prohibits an employer from discharging or in any way discriminating against

an employee for exercising his or her workers’ compensation rights. Thus, the Court reasoned, the appropriate causation standard is whether the filing of a workers’ compensation claim was a “contributing factor” to the adverse employment action, which is consistent with other Missouri employment discrimination laws.

Arbitration

In the third case, the Missouri Court of Appeals refused to enforce an arbitration agreement found in the employee handbook. The employer sought enforcement of the arbitration agreement originally contained in its employee handbook. The employer had removed the agreement from the handbook, obtained the signatures of the employee and the Director of Human Resources, and placed the agreement in the employee’s personnel file. Affirming the lower court’s order denying the employer’s motion to stay proceedings and compel arbitration, the appellate court found the arbitration agreement was not a contractual offer but rather part of the employee handbook that provided general guide- lines to employees. In support of its position, the court pointed to language both preceding and following the arbitration agreement notifying the employee the handbook was not a contract but general guidelines that could be unilaterally modified at any time, which, the court noted, is consistent with Missouri law governing employee handbooks. Furthermore, the handbook provided that “[n]o statement or promise by a supervisor, manager, or department head . . . will . . . constitute an agreement with an employee” and that only the President could bind the employer to an employment contract. Because the agreement contained within the handbook was not a contractual offer, the court ruled, the employer failed to demonstrate an enforceable arbitration agreement.

Finally, in another case, the Missouri Court of Appeals refused to compel arbitration because the employer failed to produce an enforceable arbitration agreement. At issue was a dispute resolution agreement requiring arbitration that was signed by the employee but never executed by the employer despite the “Management Signature” line. Because the agreement required both parties to resolve eligible disputes through the employer’s dispute resolution process, which included arbitration, the appellate court determined the agreement was a bilateral contract that required an offer, acceptance and bargained-for consideration. By failing to sign the agreement, the court ruled, the employer failed to establish mutual assent to the dispute resolution process agreement and, ultimately, an enforceable arbitration agreement.

Best Practices

Employers should consider integrating the following practices into your company’s regular routines:

• Immediately evaluate a Notice of Charge of Discrimination when it is received to determine whether timeliness or any other jurisdictional- related defenses apply. Any jurisdictional deficiency, including timeliness, should be raised at the time the Charge is received. Do not wait for the agency to request a response to the Charge to raise such deficiencies.
• If a response to the Charge of Discrimination is filed with the administrative agency, raise any and all additional defenses (e.g., jurisdictional deficiencies) early in the proceedings.
• Evaluate potential risks of a workers’ compensation retaliation claim prior to disciplining or terminating an employee who has recently filed a workers’ compensation claim. Consult with legal counsel regarding any questions or potential issues.
• Employers that use arbitration agreements also should consider these tips:
• Do not include an arbitration agreement in the employee handbook. Rather, present the arbitration agreement to employees separately and independently from any other employment- related document.
• Ensure no provisions in your employee handbook are inconsistent with the arbitration agreement. For example, if the handbook limits who may bind the employer to a contract, make sure that person executes the arbitration agreement.
• Include the signature of both employer and employee on the actual agreement to arbitrate.
• Ensure timely execution of the arbitration agreement by all parties (e.g., immediately upon the start of employment).
• Ensure the obligations set out in the arbitration agreement are mutual to the employer and the employee.
• Limit rights to make changes unilaterally (i.e., give advance written notice and grandfather existing claims).