This month, the Missouri Supreme Court recognized and defined a tort claim for whistleblowers. The Court explained that the traditional "employment-at-will" doctrine is not static, and may be changed to reflect public policy. In Fleschner v. Pepose Vision Institute, P.C., the Court confirmed that Michelle Fleshner had a right to sue for wrongful discharge. Fleshner claimed she was fired after she spoke with a wage and hour investigator for the U.S. Department of Labor. The Court remanded the case for a new trial due to the trial judge’s failure to conduct a hearing on a juror’s alleged anti-Semitic remarks. The Court also established that jurors should be instructed to find unlawful retaliation if retaliation was a "contributing factor" in the employer’s adverse action. "No one can lawfully do that which tends to be injurious to the public or against the public good," the Court held. The Court said public policy can come from the Constitution, statutes, regulations or governmental rules. "To find otherwise would allow employers to discharge employees, without consequence, for doing that which is beneficial to society," the Court explained. Missouri now protects employees for "refusing to violate the law," or for, "reporting wrongdoing or violations of law to superiors or public authorities."
The Court held that employees are protected when they talk to state or federal enforcement officials. It held that whistleblowers can seek punitive damages, and tort claims will not be preempted by other laws unless those laws also provide for punitive damages. The National Employment Lawyers Association (NELA) submitted an amicus brief urging adoption of the public policy exception.
In another case decided on the same day, though, the Missouri Supreme Court rejected a whistleblower claim brought by a hospital’s CT scan technician. A majority of the Court held that federal and state regulations calling for safe treatment of hospital patients are too vague to constitute a "clear public policy." The case is Margiotta v. Christian Hospital. Judge Richard B. Teitelman dissented, explaining:
There is no dispute that dropping patients poses a threat to patient safety. The importance of these regulations is magnified because many patients must rely entirely on the hospital employees to ensure that their right to basic personal safety and sustenance is met. An unconscious or incapacitated patient may be in no position to assert his or her right to safety or even recognize that safety has been compromised. Margiotta reported violations of safety regulations that constitute clear mandates of public policy. He should be given an opportunity to prove his case to a jury.
The decision underscores the need for a comprehensive federal law to protect all whistleblowers. Our current patchwork of whistleblower laws contains too many gaping holes, including this one for health care workers.
One Missouri legislator is upset that the state supreme court went as far as it did. Missouri State Senator Brad Lager from Savannah has already proposed a bill that would drastically limit awards to whistleblowers. Ozarks First reports that business groups testified to support the bill. If passed, it would stifle protections for employees who notify the public of injustice and discrimination in the workplace. The bill would be a major regression in whistleblower protection law which the Missouri Supreme Court has just defined. Thankfully, Missouri Governor Jay Nixon has announced that if passed, he would veto State Senator Lager’s bill. For the foreseeable future, therefore, Missouri workers have a right to a jury trial in whistleblower claims, unless they raise concerns about dropping hospital patients.
Intern Quinn McCall contributed to this blog entry.