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What's in a Word? Missouri's New Standard for Proving Employment Discrimination

By: John T. Brooks, Law Clerk at Newman, Comley & Ruth P.C. and Third-Year Law Student at the University of Missouri.

New legislation will impact the workplace relationship between Missouri employers and employees. On June 30, 2017, Governor Greitens signed into law Senate Bill 43, which will change several aspects of the Missouri Human Rights Act (MHRA) - including raising the standard for proving employment discrimination. The MHRA makes it unlawful for employers with six or more employees to discriminate against employees because of their race, color, religion, national origin, sex, ancestry, age, or disability. Discrimination is unlawful conduct based on membership in a protected class - for example, firing an employee because they are female. Discriminating by changing terms or privileges of employment also can be unlawful under the MHRA. Under Senate Bill 43, employees seeking to prove workplace discrimination now will have to prove that their membership in a protected class was the "motivating factor" for the employer's adverse employment action. Senate Bill 43 also contains a number of other changes to Missouri's employment discrimination laws.

Missouri's Previous Standard

Prior to SB 43, an employee claiming employment discrimination had to prove that the employee's status as a member of a protected class was "a contributing factor" in the employer's action against them. If an employee was fired due to his or her age, a jury hearing the case would be instructed:

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.

If the jury found that age was a contributing factor to the employer's decision, they would likely find the employer liable for damages. Evidence of a contributing factor could be found in any number of circumstances, but a plaintiff would not have to prove age was the only factor in the employer's decision to fire, or the most important factor - merely a contributing factor.

Missouri's New Standard

SB 43 replaces the word "contributing" with "motivating." An employee seeking to prove discrimination now will have to prove their membership in a protected class "actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action." While no jury instructions have been issued yet under this new standard, a new instruction might like look this:

Your verdict must be for plaintiff if you believe:

First, defendant discharged plaintiff, and

Second, age was the motivating factor in such discharge, and

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

The new standard is similar to the one outlined in federal employment law. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. A plaintiff can prevail under Title VII by showing that their membership in a protected class was "a motivating factor" in an employer's decision.

Notably, however, SB 43 provides that a plaintiff must prove his or her membership in a protected class was "the motivating factor." Is "the motivating factor" a higher standard than "a motivating factor?" The definition given of "the motivating factor," discussed above, is similar to the one used in federal law. While it remains to be seen how courts will handle instructing juries on this issue, careful and judicious advocacy will be needed on both sides of employment cases arising under the new standard.

Cap on Damages Based on Employer Size

Under SB 43, certain damages an employee could receive, if he or she wins at trial, now will be limited based on the size of the employer. An employee can receive "actual back pay and interest on back pay," typically referred to as compensatory damages, which are not capped - but which must be calculated and proven. All other damages, including future loss, emotional pain, and punitive damages, are capped based on the size of the employer. An employer with between 5 and 100 employees only will be liable for a maximum of $50,000. An employer with between 100 and 200 employees only will be forced to pay a maximum of $100,000; one with between 200 and 500 only will be forced to pay a maximum of $200,000; and one with more than 500 employees only will be forced to pay a maximum of $500,000. With the new caps of SB 43 in place, if an employee works for an employer with 25 employees, proves age was a motivating factor in the employer's decision to fire, and proves he or she was owed $10,000 in back pay and interest on back pay, the employee's maximum available damages would be $60,000. Statutory caps similar to those in SB 43 have been the subject of numerous appeals, such as Watts v. Lester E. Cox Med. Centers, 376 S.W.3d 633 (Mo. 2012). In that example, the Missouri Supreme Court held that a Missouri statute imposing a cap on non-economic damages for medical negligence violated the right to trial by jury. Thus, the caps in SB 43 also will likely be challenged.

Individual Liability

Prior to SB 43, not only could employers be sued for employment discrimination, but individual employees working for the employer also could be sued. Supervisory employees often were named in lawsuits arising under the MHRA. SB 43 specifically prohibits plaintiffs from naming employees who are alleged to have discriminated or ignored discrimination by redefining "employer" to not include any individual employed by an employer. Now, plaintiffs will not be able to name individual employees as defendants in future state discrimination claims.

Whistleblower Provisions

SB 43 also contains provisions relating to a person who reports an unlawful act of his or her employer, such as a statutory violation, and subsequently has an adverse employment action taken against him or her - commonly referred to as a "whistleblower." SB 43 allows whistleblowers who have adverse actions taken against them an avenue for recovering damages, but also caps the damages stemming from whistleblower lawsuits at twice the amount of back pay and medical bills a person is owed. The law does not provide for additional punitive damages in the event of a particularly outrageous set of circumstances. Rather, such damages only can be twice whatever back pay and medical bills a person is owed. Missouri law excludes the State and political subdivisions from whistleblower liability. Under SB 43, if a whistleblower proves his or her reporting of an unlawful act was the motivating factor in the employer's decision to take an adverse employment action against him or her, and the employee was owed $10,000 in back pay and $20,000 in medical bills, the maximum additional damages that person could receive if he or she proved the employer's conduct was outrageous would be $60,000, for a total award of $90,000.

What the Future Holds

Many provisions of SB 43 will be contested in the appellate courts. Among them are whether the change in the standard from contributing factor to motivating factor is "procedural" or "substantive." If the change is deemed "substantive," it could not apply to acts of discrimination or retaliation which arose before the law becomes effective August 28, 2017. However, if the change is "procedural," then a court could require a plaintiff who filed his or her case before SB 43 was enacted to meet the new standard of proof. Regardless, employers should expect to see the number of lawsuits filed in the next two months jump before SB 43 goes into effect on August 28, 2017. Similarly, in 2005, when damage caps on medical malpractice lawsuits were passed, there was a substantial rise in lawsuits in the months before the caps went into effect. All employers and employees need to stay informed on the changes in Missouri law under SB 43 to ensure they are following the law and not exposing themselves to potential liability.

Art Auction in the Explorer's Lounge on Deck 6

By Steve Newman

My wife and I recently returned from an Alaskan cruise tour. It was a "bucket list" trip. In addition, we celebrated our 30th wedding anniversary on a ship that included about 2,200 happy people. One of the many scheduled on-board activities was an art auction. I went to the afternoon event as a complete novice straining to remember the primary colors. The auction featured fine art by well-known artists. Each art piece, except sculptures, was beautifully framed and matted. The artists included Peter Max, Itzchack Tarkey, Pino, Daniel Wall, Norman Rockwell, Thomas Kinkade, LeRoy Neiman, Duaiv, Simon Bull, Viktor Shvaiko, and others.

The auctioneer was named Pierre who hailed from South Africa. He was sharply dressed in a business suit and tie. He knew how to move an auction quickly. In his introductory remarks, he said that each purchased piece would be framed and shipped to your home with a promise to replace any frame damaged in transit. An appraisal of a purchased piece was available for $35.00 and $15.00 for each piece thereafter. The appraisal would help to insure properly the purchased piece. I knew then that dynamic bidding must be next.

Pierre also said that purchasing one or two pieces was nice; however, the purchase of three or more pieces was a collection. I sensed immediately that Pierre was looking for collectors. Experienced art purchasers flanked me on all sides. As a result, my innocence was exposed. A couple to my left were particularly active successful bidders and proudly knew the names of most of the artists when a new piece was hoisted by the hired help to the center easel which was illuminated by a bright overhead light.

The free champagne courtesy of the auction company seemed to unleash the couple's spirited bidding. In contrast, I sipped the free orange juice in stunned silence.

As an estate planner, I wondered privately how this active couple to my left would dispose of their purchases at death although the grim reaper did not appear imminent for either of them. Did they have a revocable trust? If yes, did they previously sign an assignment of a tangible personal property that included a provision for after acquired personal property items to add these new purchases to their trust? Was the couple's estate planning based solely on two wills - one for him, one for her? Did their respective wills include a paragraph or incorporate a personal property list to indicate who should receive these new fine art pieces after the death of the survivor of them? Did they live in Missouri where a bill of sale could be used to avoid probate on their newly acquired fine art pieces? Did they have any estate planning in place at all? Shudder the thought that they were barren of any personal estate planning documents. Collections are often coveted and valuable assets in a couple's net worth. These professional thoughts entered my mind as their bid number became a frequent winner. My professional musing was suddenly interrupted by Pierre the auctioneer stating loudly "Going once, going twice. Sold. Number 217. A very good purchase indeed." The active couple to my left had added to their collection that afternoon in the Explorer's Lounge on deck 6. My witness of their achievement and happiness along with my orange juice satisfied me enough.


Missouri's Motor Vehicle Financial Responsibility Law and the Duty to Defend>

By Ryan J. McDaniels

The State of Missouri requires all drivers to carry certain minimum coverage under the Motor Vehicle Financial Responsibility Law (MVFRL) as prescribed in RSMo. § 303.190. That section provides that all motor vehicle liability policies must carry at least twenty-five thousand dollars of liability coverage for bodily injury or death of a person in any one accident, fifty thousand dollars of liability coverage for bodily injury or death in each accident and ten thousand dollars of coverage for property damage from each accident. Certain entities are allowed to self-insure, as opposed to purchasing insurance through a third party, if they meet the requirements of RSMo. § 303.220. In order to obtain a certificate of self-insurance, the self-insurer must agree to, "pay the same judgments and in the same amounts that an insurer would have been obligated to pay under an owner's motor vehicle liability policy if it had issued such policy to said self insurer." RSMo. § 303.160.

Typically, when a person purchases insurance through an insurance company, the insurer agrees to defend the insured in the event the insured is sued or a claim is made against the insured that is covered under the insurance policy. A failure to defend the insured or to settle a claim against the insured can result in a claim by the insured against the insurer for the insurer's failure to perform its duties under the insurance contract. Insurers typically agree in their policies to defend the insured so that they are not forced to pay large judgments without the ability to participate in the defense.

While the MVFRL makes clear that each driver must carry certain minimum coverage, either through insurance or self-insurance, a recent case from the Eastern District Court of Appeals, clarifies that the minimum coverage does not require a self-insurer to provide a defense to the insured. Instead, the only requirement is that the self-insurer pay the amounts required under the MVFRL.

In Clayborne v. Enterprise Leasing Co of St. Louis, LLC the Eastern District Court of Appeals was faced with an interesting fact pattern. Carlus Parker rented a car from Enterprise, but refused Enterprise's insurance coverage. In his rental agreement, Enterprise stated that it was not an insurer, but met the minimum requirements of the MVFRL as a self-insurer. After renting his vehicle, Mr. Parker was involved in an accident with Mr. Clayborne. Mr. Clayborne sued Mr. Parker for his injuries.

Mr. Clayborne's attorney contacted Enterprise, and sought to settle with Enterprise as Mr. Parker's insurer for $25,000, the coverage amount required by the MVFRL. Enterprise refused stating that it was not Mr. Parker's insurer. Enterprise further refused to provide Mr. Parker with a defense at the trial of Mr. Clayborne's claim against Mr. Parker. Mr. Clayborne obtained a judgment of $575,000.00 against Mr. Parker. Shortly thereafter, Enterprise paid Mr. Clayborne the $25,000 under the MVFRL, but refused to pay any additional amounts.

Mr. Parker then sued Enterprise claiming that they had acted in bad faith toward him as his insurer, in failing to defend him and refusing to settle with Mr. Clayborne for Enterprise's $25,000 in coverage. Mr. Parker claimed that Enterprise's refusal to settle for its $25,000 in coverage allowed Mr. Clayborne to take a large judgment against him, when Enterprise had the opportunity to settle Mr. Clayborne's claim for an amount that would not have exposed Mr. Parker to a judgment. The Circuit Court of the City of St. Louis found that Enterprise owed no duty to Mr. Parker other than to pay its $25,000 and entered judgment in favor of Enterprise. Mr. Parker appealed.

The Eastern District Court of Appeals upheld the Circuit Court of the City of St. Louis' judgment in favor of Enterprise. The Court found that nothing in the MVFRL required Enterprise to provide Mr. Parker with a defense or gave Mr. Parker a right to sue Enterprise for failing to settle. The Court stated:

In the instant case, Appellant [Parker] can point to no provision in the rental agreement establishing an obligation on Enterprise...to defend him in a lawsuit or to settle any claims brought against him by a third party damaged by Appellant while driving the rental car. Enterprise...ha[s] satisfied the only duty of coverage they have in this case, namely a statutory duty under the MVFRL to provide the minimum amount of $25,000 to third party Clayborne.

While the case may be reversed by the full panel of the Eastern District Court of Appeals or transferred to the Missouri Supreme Court, if the opinion stands the clear message is that the MVFRL requires nothing more than $25,000 in coverage for bodily injury or death per person, $50,000 in coverage for bodily injury or death per accident and $10,000 in coverage for property damage per accident.

This case clearly raises the question, can an insurer avoid its duty to defend similar to the self-insurer in Clayborne. While this case does not address that issue, it is likely that an insured under a state minimum policy would still have a claim against their insurer for bad faith failure to settle or defend due to the contractual agreement between the insurer and insured. The Court's opinion in Clayborne however makes clear that a self-insurer does not have that duty unless it contractually agrees to it.

A copy of the Eastern District Court of Appeals' Opinion in Clayborne v. Enterprise Leasing Co. of St. Louis, LLC can be found at: http://www.courts.mo.gov/file.jsp?id=111615.

Missouri Professionals Beware – Do Not Commit a Crime of Moral Turpitude

By Nicole L. Sublett

Unless you are a professional licensing lawyer, you are probably asking "what is a crime of moral turpitude?!" This phrase appears often in licensing statutes that govern Missouri’s professionals including doctors, nurses, dentists, real estate appraisers and most others. If a professional is convicted of a crime of moral turpitude, a licensing board has authority to discipline the professional’s license. Because crimes of moral turpitude are not clearly defined in professional licensing statutes, professionals must rely on Missouri courts to define whether a crime involves moral turpitude on a case by case basis.

For example, in a recent Missouri case, Owens v. Missouri State Board of Nursing, the Missouri Court of Appeals, Western District, ruled for the first time in Missouri that a misdemeanor DWI is not a crime of moral turpitude. Prior to this case, DWIs were often used by licensing boards as grounds to discipline a professional’s license. In Owens, the Court held that the Missouri State Board of Nursing should not have revoked Owens’ license because DWI is not a crime of moral turpitude or reasonably related to the ability to practice nursing. Because no Missouri court had previously answered this question, the Court relied on decisions from courts in Alabama, Vermont, Tennessee, California, South Carolina, Texas and Indiana.

The Court described a crime of moral turpitude as "an act of baseness, vileness or depravity… contrary to the accepted and customary rule of right and duty." The Court went on to say there are three classifications of crimes to consider when determining whether a crime involves moral turpitude. The first class are those offenses which necessarily involve moral turpitude like fraud or murder. The second class are those which are insignificant, like parking tickets, and are facially not moral turpitude. Lastly, the third class of offenses, like the one in Owens involving DWI, are those where there are shades of grey. In these cases, the Court must look to the facts and circumstances surrounding the crime to determine whether moral turpitude is involved.

In Owens, the Court noted that the DWI in question was a first offense and also a misdemeanor charge. The Court stated that even though driving while intoxicated is "irresponsible," there were no facts in the case to demonstrate the nurse committed an act of "baseness, vileness or depravity." The Court further reasoned that there is nothing within the charge of DWI that relates to a nurse’s ability to practice. On this basis the Court overturned the Board’s revocation of the nurse’s license. Notably, the Court left open the possibility that multiple DWIs or felony DWIs may rise to the level of crimes of moral turpitude. Click here to read the Court’s opinion in its entirety.

If you are a professional faced with a criminal charge make sure you talk with a licensing lawyer who can help you understand fully the implications of any guilty plea or conviction. As a professional you have certain rights, duties and obligations that accompany your license. You must be proactive to protect your license and your livelihood. Call Newman, Comley & Ruth P.C. for a lawyer, like Nicole L. Sublett who defended the nurse in this case, who can help you with your professional licensing needs.



By Steve Newman

Probate. This singular word stirs negative thoughts in the minds of many individuals. For many, the possibility of probate is something to be avoided like a natural disaster or a physical illness.

When a person dies, sometimes probate cannot be avoided. It becomes necessary to settle a decedent's affairs under court supervision. For this article, probate means a judicial procedure to administer a deceased person's assets. Under Missouri law, a probate case can incur significant costs of administration and move at a slow and unfamiliar pace for interested and often anxious persons. It is not unusual for probate cases to last ten (10) months and sometimes more than a year. It is little wonder why the thought of probate often generates negative reactions.

There are, however, certain probate procedures under Missouri's Probate Code that take a shorter period of time to complete. If the right circumstance exists for a short-term probate procedure, a probate case can be settled more quickly. Some short-term probate procedures recognized under Missouri law are a refusal of letters to a surviving spouse or unmarried minor children, refusal of letters to a creditor, a small estate affidavit procedure where the estate is less than $40,000 in value and a petition for determination of heirship. Administration of nonresident decedent estates also can use short-term probate procedures in Missouri for assets located in Missouri. A brief description of each short-term probate procedure is mentioned below.

Application for Refusal of Letters for a Surviving Spouse or Unmarried Minor Children

A Court can refuse to grant letters. Refusing to grant letters means that the Court will not issue letters testamentary if a will is admitted to probate or letters of administration if the

decedent died without a will. Issuance of letters either testamentary or of administration appoints a personal representative to start a probate case.

The estate of the decedent in a refusal of letters situation can be for that property allowed by law as exempt property under §474.250, RSMo. and the allowance granted to a surviving spouse and minor children under §474.260, RSMo. There is no dollar limit on the value of assets that can be included in a refusal of letters to the surviving spouse and unmarried minor children as long as the assets are exempt property items mentioned under §474.250, RSMo. and would meet the allowance granted to a surviving spouse and minor children under §474.260, RSMo. After the application for refusal of letters is filed, it should be ruled upon by the court in 60 days if not sooner.

Application for Refusal of Letters to a Creditor

If the personal estate of the decedent does not exceed $15,000 and there is no widower, widow or unmarried minor children, any creditor of the decedent may apply for refusal of letters. The creditor will sell the assets of the decedent, pay the debts of the decedent in order of their preference and distribute the balance, if any, to the persons entitled to such balance under the law. After the application for refusal of letters to the creditor is filed, it should be ruled upon by the court in 60 days if not sooner.

Affidavit to Establish Title Where Total Estate is Less Than $40,000

The net value of the probate estate must not exceed $40,000. Thirty days must pass from the decedent's death before the small estate affidavit can be filed. If the net value of the estate is greater than $15,000 plus less than $40,000, two publications in a local newspaper are required. A probate estate with a net value of less than $15,000 does not have a publication requirement.

Often the small estate affidavit procedure is used by members of the decedent's family other than the spouse or unmarried minor children. A bond could be required by the court but often it is waived. The affidavit must represent that all debts, claims, demands and estate taxes have been or will be paid. The liability of the person signing the affidavit is limited to the value of the property received. A small estate affidavit can be usually processed by the court anywhere from two to six weeks.

Petition for Determination of Heirship

A petition for determination of heirs can only be pursued when no administration of the decedent's estate has commenced and no will has been presented in Missouri within one year of the decedent's death. A court hearing is required. Evidence must be produced. Notice must be given to interested parties. Notice must be published in the paper. At the hearing, the court is directed to enter a decree determining who the heirs are and their respective interests in the decedent's property. The case can usually be resolved within 90 days of its filing with the court.

Nonresident Decedents Can Dispense With Administration

Nonresidents can pursue short-term probate procedures in Missouri. If a nonresident decedent owned property in Missouri, a short-term probate procedure can be used. The proceeding in Missouri is an original proceeding conducted under the laws of Missouri and is independent of and not ancillary to the proceedings in any other state. The timing involved in a short-term probate proceeding for the nonresident decedent should be the same as for a resident of Missouri.

If probate administration must be pursued in Missouri, pause to consider if any of the short-term probate procedures could be used. Ask our probate attorneys for help in determining whether the probate experience in Missouri can be shorter.



Failing to Respond to a Lawsuit Filed Against You May Be Costly

Alicia Embley Turner

When a civil lawsuit is filed, the Missouri Rules of Civil Procedure require that the defendant file an answer within 30 days after service or if the lawsuit is filed in associate circuit court, that the defendant appear on the return date indicated in the court summons. Failure to respond to the lawsuit will result in a default judgment being entered against the defendant. Sometimes a defendant against whom a default judgment has been entered will request that the court set aside the default judgment for excusable neglect, such as he was late for court or she failed to properly note the deadline for responding. To the extent there was any doubt that this does not constitute good grounds for setting aside the default judgment, that doubt was eliminated by the Missouri Court of Appeals, Western District, in Bryant v Wahl, WD7888 (Aug. 2, 2016). In Bryant, even though Mr. Wahl had been adjudged mentally incompetent in a prior criminal proceeding, the court refused to set aside a default judgment entered against him because he failed to follow the proper procedures for filing such a motion. This resulted in the affirmation of a $5 million default judgment entered against him.

Missouri Rule of Civil Procedure 74.05(d) states that in order to have a default judgment set aside, a party must state facts "constituting a meritorious defense" and show "good cause." The court in Bryant reminds us that there is an initial pleading requirement as well. Courts require that motions to aside default judgments be supported by affidavits or sworn testimony. In other words, these motions are not self-proving. Also, defaulting parties are not entitled to an evidentiary hearing to overcome any evidentiary deficiencies in their written motion. Defaulting parties are not entitled to evidentiary hearings as a matter of right.

With regard to the requirement that the defaulting party show he or she has a meritorious defense, it must be an "arguable theory." Nevertheless, the facts supporting the theory must have a basis in reality and cannot be mere speculation. The court in Bryant emphasized that there must be some evidence to support the defense. Allegations that "discovery may reveal affirmative defenses" will not suffice.

The lesson of Bryant v. Wahl is that if you are served with a lawsuit, you should not ignore it even if you think you have a good defense or if you think the court knows you have a good defense. Rather, you should give it your full attention and proceed with filing a response or appearing on the required date for associate level cases. The burden of proof to have a default judgment against you set aside later is high and the requirements are strict, and if the motion is denied, the default judgment could be very costly to you. It could possibly be much more costly than hiring a law firm to help you defend it in the first place.

The Things Your Mother Told You Not to Talk About at the Dinner Table

Cathleen A. Martin

While secrets, drugs, politics, sex and the bathroom are still topics of conversation banned from polite conversation at many family dinner tables, employers should not be taking the same approach to communications in the workplace. With the new federal Defend Trade Secrets Act, the Occupational Safety and Health Administration's changes to post-accident drug testing rules, the United States Supreme Court's recent decision emphasizing the freedom of speech protection for public employees when expressing political views and broad changes in federal protections against discrimination and harassment based on sexual orientation and gender identity, employers need to talk about all of these topics and how they affect their workforces.

A. Secrets

In regard to secrets, employers now have a new level of protection and remedies to keep their proprietary information or intellectual property such as formulas, client lists, business strategies or technologies not protected by patents, confidential. Previously, employers historically depended on the protections of state versions of the Uniform Trade Secrets Act (UTSA) in conjunction with confidentiality agreements to protect their secrets. However, this resulted in national businesses protecting their secrets by filing litigation in multiple states all with separate and differing versions of the UTSA which ultimately was an inefficient and expensive way to protect secrets. On May 11, 2016, President Obama signed the federal Defend Trade Secrets Act (DTSA), 18 Section 1831, et seq, which provides injunctive, royalty, regular and exemplary damages, attorney's fees, and civil seizure remedies that can be secured in federal courts with jurisdiction to issue orders effective across state lines.

To take advantage of all of the remedies available under this new law, employers must incorporate a notice of the immunities available under the DSTA to whistleblowers who provide trade secrets to the government in an investigation of a violation of the law, in court under seal or to a whistleblower's attorney. If employers fail to include such notice in their contracts, the employers will be precluded from being awarded exemplary damages and attorney's fees in any future litigation. Thus, it is time for employers to talk about their trade secrets and how their contracts need to be altered to ensure that they can take full advantage of the provisions of the DTSA.

B. Drugs

Many employers have mandatory post-accident testing polices that require all employees involved in a workplace accident to be drug tested immediately after any accident. The Occupational Safety and Health Administration (OSHA)'s new regulations, under 29 C.F.R. Part 1904, dramatically affect a covered employer's ability to do drug testing because the regulations prohibit employers from ordering post-accident or injury drug testing unless the employer can demonstrate that employee drug use is likely to have contributed to the incident and the situation is one in which a drug test can accurately identify impairment caused by drug use. These changes will require employers to separately analyze in each work injury situation whether an employee can be tested for potential drug use and are effective August 10, 2016.

In addition to revising their drug testing policies, OSHA will also require employers to submit records of workplace injuries electronically and public disclosure of employer data on workplace injuries to increase workplace safety. The new regulations related to electronic submissions are effective on January 1, 2017. Thus, it is time for employers to be talking about drugs in the workplace and confirming whether the new OSHA regulations apply to their business.

C. Politics

With the upcoming elections, workplaces tend to be more a buzz with political conversations. The United States Supreme Court in Hefferman v. City of Paterson, N.J., 136 S.Ct. 1412 (2016), issued a decision in April reminding public employers of the importance of allowing their employees to exercise their First Amendment Right to Free Speech. In this case, a police officer filed a Section 1983 action against the city, mayor, police chief and police administrator alleging he was demoted in retaliation for exercising his First Amendment Rights when his bosses assumed he was supporting a candidate for mayor whom the police chief opposed. Ironically, the police officer had been seen carrying a yard sign for the candidate, but he was actually picking it up for his bedridden mother and did not support the candidate himself. The Supreme Court found that the employer's motive was what was relevant rather than the employee's actual activity.

Beyond public employers needing to ensure that employees are allowed to exercise their freedom of speech rights, private employers also should not be taking action against employees based on their political views. Many states, including Missouri, recognize a public policy exception to the at-will employment doctrine of employment which precludes an employer from terminating an employee for refusing to violate the law or any well-established or clear mandate of public policy as expressed in the constitution, statutes, regulations or rules created by a governmental body. While Missouri has not directly applied the public policy exception to the at-will doctrine in the context of the First Amendment, such protection has been recognized by other jurisdictions and would likely be recognized in Missouri too. Thus, employers need to be talking about how political conversations will be handled in their businesses because it is not a matter if they will occur in this election year, but when.

D. Sex

While the Equal Employment Opportunity Commission (EEOC) in internal determinations had ruled that discrimination based on transgender status was sex discrimination in violation of Title VII in 2012, the EEOC had not filed litigation in court against any employer for engaging in such discrimination until this year. On June 23, 2016, Pallet Cos., doing business as IFCO Systems, entered into a consent decree with the EEOC providing that the company would hire a subject expert on sexual orientation, gender identity and transgender training to develop a training module on sexual orientation and sexual identity issues in the workplace. EEOC v. IFCO Systems, Case No. 1:16-cv-00595-RDB (U.S. Dist. Ct. MD 2016). In addition, a number of federal district courts now have recognized protection against discrimination based on sexual orientation and soon this issue will be before federal appellate courts.

Beyond recognizing the stance of the EEOC related to protection under Title VII against discrimination based on sexual orientation, employers should recognize that contrary state law on this topic is not a defense to discrimination under Title VII. 42 U.S. C. Section 2006e-7. Thus, even though Missouri's only state court decision on the issue of protection against discrimination based on sexual orientation found that there is no protection under the plain language of the Missouri Human Rights Act, federal law still requires Missouri employers with 15 or more employees to protect against discrimination based on sexual orientation. Pittman v. Cook Paper Recycling Corp., 478 S.W.2d 479 (Mo.App. W.D. 2015). Thus, employers need to be creating policies and discussing trainings to protect against discrimination based on sexual orientation.

E. Bathrooms

Finally, employers need to be talking about the restroom in the employment context to ensure that they are prepared to lawfully address the issue of transgender workers. OSHA has issued guidance for restroom access for transgender workers setting out that such employees should be allowed to use facilities that correspond with their gender identity. OSHA recognizes that the best policies include either allowing a person who identifies as a man to use the men's restroom, single-occupancy gender-neutral (unisex) facilities and/or multiple-occupant, gender neutral restroom facilities with lockable single occupant stalls.

Similarly, the EEOC held in an internal appeal in 2015 that denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination. Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015). The EEOC further noted that the employer could not condition the right to use a restroom corresponding to the employee's gender identity based on proof of surgery or any other medical procedure, and the employer could not avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it). Based on the above EEOC decision and OSHA guidance, employers need to be talking about their workplace bathrooms like never before. While civility and polite conversations should still be the goal for workplace discussions, employers need to be tearing down the stereotypes about what topics are acceptable for the work environment and being proactive in discussing the topics of secrets, drugs, politics, sex and the bathroom to ensure that their businesses are in compliance with the law.

What should I bring?

By Steve Newman

I assist individuals and couples with estate planning. In that context, an individual will call to schedule an initial meeting with me. During that call, the individual will often ask the following question: What should I bring? In other words, what information do I as an attorney expect the prospective client to bring for our first meeting together?

Having done estate planning for over 35 years, I hold fond memories of, and appreciation for, the individual or couple who answers that question well. I simply refer to them as a model client.

The model client will bring the following information to our first meeting:

1. Family information. The full names and dates of birth of children and grandchildren, if any, are helpful.

2. Trusted helpers. The model client knows who to appoint or designate as a trusted helper or fiduciary. Who should act as the personal representative under a will, an agent under a durable power of attorney (financial and health care), trustee under a trust, and a guardian and conservator for minor children? Who should be the successor person if the initially appointed person cannot serve?

3. Goals. What should the planning accomplish?

4. Assets. The model client usually knows his, her or their net worth financially and provides a written summary of their assets showing type, value and ownership.

5. Current estate planning documents. The model client brings current estate planning documents, if any.

The information shared by the model client makes for a productive first meeting. The information allows me as a professional to make a recommendation for the model client's consideration. The above information shared by the model client answers well the question what should I bring?

Water Quality Trading

Recently Introduced Legislation and MDNR Workgroup

By Robert J. Brundage

Recently introduced legislation seeks to establish a voluntary water quality trading program in Missouri. Representative Bart Korman introduced House Bill 2490, which proposes developing a market-based approach to complying with federal water quality regulations. The trading program would allow point and non-point sources, including agricultural operations, to meet regulatory requirements by exchanging credits among themselves. For more information on H.B. 2490, click here.

The Missouri Department of Natural Resources has organized a workgroup dedicated to designing a framework for a water quality trading program in Missouri. From the best way to set up a market structure to enforcement recommendations, the group meets monthly to discuss how to make the program viable. At the January meeting, the Nutrient Tracking Tool was introduced as a way to make trading more economically viable. Specifically, this technology would allow trading without the need to measure practice results at the edge of each field.

Water quality trading programs can be beneficial to municipalities and industrial dischargers that may not be able to comply with water quality limits and cannot economically support improvements to their wastewater treatment facilities. A trading program can be a more cost-effective and flexible way to protect water quality in Missouri.

The MDNR's next water quality trading workgroup meeting is on February 26, 2016 at 10 a.m. in the Lewis and Clark State Office Building in Jefferson City. For more information on the workgroup, including notes from previous meetings, click here.

Estate Planning

By Kim Hubbard

Many people are concerned about providing for their family once they are gone, and rightly so. There are several legal documents including, but not limited to, wills, trusts, and beneficiary deeds that can ensure all of a person's property transfers to the intended person upon death. Often-times changing circumstances will make it necessary for a person to make multiple revisions to these documents throughout his or her life. Such circumstances can include new children or grandchildren, marriage, re-marriage, or divorce, or the inheritance, purchase, or disposal of property. Revising these documents makes finding a knowledgeable estate planning attorney especially important so that your family members, or others to whom you have expressed intent to leave your property, are not left to argue among themselves after your death.

Such a situation happened in a recently-decided Missouri case when Norma Meyer created a trust in 2005 leaving a 300 acre piece of property to Tommy Richardson, her live-in boyfriend at the time. She later created a will in 2009 leaving all her property to two of her children. Norma's relationship with Tommy ended a year after she created the Trust. In the 2009 Will, the Trust was not mentioned at all. The Trust's terms stated that in order to revoke it, Norma was required to create a written document revoking the trust and to deliver that written document to the trustee.

Despite language in the 2009 Will stating that it revoked all previous wills and any amendments to those wills, the court determined that nothing in the 2009 Will could be interpreted as having revoked the 2005 Trust. Even though there was other evidence that Norma would not have wanted the 2005 Trust's terms carried out, under Missouri law, when the creator of a trust reserves the power to modify the trust only in a particular manner and under particular circumstances, as Norma had per the terms of her trust, the trust can be modified only in that manner and under those circumstances. The court stated that the requirement that the trust could only be modified in a certain manner per its terms protected the integrity of the trust. The court could not allow the language of Norma's Trust to be overcome by other evidence because it would make the Trust's terms meaningless.

Therefore, Norma's 2005 Trust was not revoked and her 300 acre property was left to her ex-boyfriend when she died and not to her two children, as her 2009 Will stated. This case is In the Estate of Norma Jean Meyer v. Presley and can be read in its entirety here.

To avoid circumstances like this, it is important to have an experienced attorney draft your estate planning documents, review any existing estate planning documents, and/or revise your estate planning documents when life events occur. Call the experienced estate planning attorneys at Newman, Comley and Ruth, P.C. to discuss your estate planning desires and for a review of your current documents.

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