In both the House and Senate of the Missouri Legislature, Legislators have introduced to dramatically change the Missouri Human Rights Act, or the MHRA. This statute is our State’s version of federal laws that make it illegal to discriminate against someone on the basis of their religion, race, gender, age, national origin, or disability. While the MHRA protects Missouri residents against discrimination in housing as well, it’s the sections that protect employees that are under attack.There are a lot of proposed changes to the statute – too many to cover in one article. I’ll have to take them one at a time, so look for future installments in the next few days and weeks. Today, I want to focus on what is actually a new section of the MHRA. It’s called the “Whistleblower’s Protection Act.”From the title, it sounds like a great addition to our statute – we should protect Whistleblowers! But don’t be misled. If this statute is passed, whistleblowers will have fewer protections than they have today – this bill is more rightfully called the “Company’s Protection Against Whistleblowers Act.”What is a whistleblower, anyway? No, I’m not talking about the referee at a basketball game. A whistleblower is someone who sees behavior that is harmful to others, or to the environment, and has the courage to shout, “This is not right!” The classic example is the factory worker who sees his employer dump toxic waste in the river next to the factory, or sees the company remove safety guards from dangerous equipment. They report the conduct to the EPA or OSHA, and maybe the factory gets slapped with a fine.Whistleblowers aren’t always blue-collar types. Sometimes a whistleblower is a professional – an accountant who notices the company is “cooking the books” to cheat investors, or a doctor or nurse who notices the hospital she works in doesn’t follow safe procedures.These people are heroes, people who should be rewarded for standing up for what is right. They may be saving lives for bringing unsafe practices to an end, or saving the town’s drinking water from harmful chemicals. They have the courage to speak out.Courage, you say? Why does it take guts to report blatantly bad behavior? Well, the boss isn’t too happy when he gets ratted on, and too often, the courageous employee is the victim of retaliation. He or she may be shunned by the rest of the crew, because they lost a safety bonus award. Worse – and all too often – the whistleblower is fired, just because they did what they were raised by their parents to do – if you see something wrong, speak up.Today in Missouri, a whistleblower can sue his or her employer if they are retaliated against for blowing the whistle. If they convince a jury of twelve citizens that they were punished for standing up for what is right, a jury can award them damages. Those damages start with lost wages. If an employee is wrongly fired and losses income, a jury can “make them whole” by awarding lost wages.But that’s not the only harm a fired whistleblower suffers. Anyone who unfairly lost their job knows money is only a part of the damages. Anyone with rent to pay, mouths to feed, children who need new shoes or a birthday present, knows what it is like to stare at the ceiling at three in the morning, wonder when the next bill collector is going to call, wonder what their wife thinks of them now that there is no paycheck every other week, or wonder what they will tell their teenager who had hoped to enroll in college next fall.Courts in Missouri understand those kinds of damages, and in Missouri a jury can make the whistleblower completely whole by awarding damages for the pain, anxiety, and emotional suffering they felt while they tried to get back on their feet and find another job. The law calls those damages “compensatory” – because they compensate for the emotional losses. Today, all victims of discriminatory or retaliatory termination can recover those damages, if a jury of their peers, after hearing the facts, believes such damages will make the person whole again, or at least help.SB43 (link here) and HB676 (link here) eliminate many of the protections the current law offers. I’ll talk about those in another article. My focus today is on the complete elimination of any damages for pain and suffering a whistleblower can recover. The new law (I’ll refer to the Senate version, SB43; the two are identical in this respect) says “The only remedies available in such an action shall be (1) Back pay; (2) Reimbursement of medical bills directly related to a violation of this section;” and (3) “liquidated damages” which will be twice the other damages. The portion called “back pay” refers to lost wages, but that’s all the person gets. The only other damages are medical bills – if the whistleblower’s emotional harm was so serious they had to get medical treatment, the employer has to pay the bills, but that’s all. And, instead of punitive damages to punish the employer for their misconduct, the employer is only punished to the extent the employee lost wages, times 2.So, consider this possible scenario. An engineer reports that his construction company employer uses a crane to lift heavy objects, when the crane is not designed to lift that weight (facts from an actual case), or a mechanic at a car dealership reports that the dealer sent a car that failed a safety inspection to another inspector, where it “passed” with no changes to the car (also a real case) and the whistleblower is fired. Let’s say they are both talented, and get jobs right away – so their “back pay” may be a couple of thousand dollars. The companies that put other people’s lives in danger are let off the hook for less than $10,000.00. Do you think that will deter them from doing it again?Worse, the whistleblowers don’t get a penny for the emotional harm they suffered. Not a cent. They had the guts to step forward, and risk their jobs and livelihood, and got fired for their good deed . . . but the employer gets off cheap.Folks, these are the kinds of laws currently under consideration in Jefferson City. We have to let our representatives know this is wrong!
