Yesterday, the Missouri House of Representatives passed a bill called the “Whistleblower’s Protection Act,” H.B. 2099. This bill is actually an attempt to weaken the protections Missouri courts already afford to whistleblowers. Like courts in most states, Missouri courts recognize a common law tort claim for employees discharged in violation of a clear public policy. See Entwistle v. Missouri Youth Soccer Association, Inc., 259 S.W.3d 558, (Mo.2008). The Republican controlled legislature passed a similar bill earlier in the year, but Democratic Governor Jay Nixon vetoed it. According to an Associated Press (AP) story, the present bill is slightly less severe than the prior bill.
Still, H.B.2099 would limit punitive damages, exempt governmental agencies, and prohibit courts from expanding protections under the common law. The bill’s definition of a “protected person” does not make clear that employees would be protected if they raise a concern based on a reasonable belief of a violation. Courts might require employees to actually prove the violation to receive any protection. The bill also fails to specify a protection for those employees who raise concerns based on health, safety and environmental issues. The bill offers no assurance that employees could reach the courthouse if their employer uses forced arbitration agreements. The bill makes no provision for awards of attorneys fees, litigation costs and expert witness fees.
The bill’s sponsor, Rep. Kevin Elmer, told the AP that his bill would provide clarity for businesses. He tacitly concedes that his bill does more than clarify existing law. “We’re trying to balance the rights of individuals and the right to earn a living,” said Elmer. Any “balancing” that wants to protect the public from frauds and dangers would make sure that all whistleblowers are fully protected. It remains to be seen if the bill can pass the Missouri Senate, and override an expected veto. We could also advance the cause of “clarifying” whistleblower protections for businesses by having the federal Congress pass a gold standard whistleblower protection for all employees.
