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A common question our firm receives is: “Why would my employer want to fire me just because I got hurt?” This is a good question, because, after all, Missouri mandates that nearly all employers carry insurance to cover work comp claims. It might seem like an employer would be happy to provide the treatment and benefits required by law. This is particularly true because work comp is so favorable to employers: it prevents an employee from filing a lawsuit against the employer, which would cost much more to defend and result in much higher monetary awards to the employee. However, several factors lead employers to terminating individuals for exercising work comp rights. These factors are discussed below.
Every employer in Missouri is likely to know that terminating an employee based upon race, age, religion, and gender is illegal. However, making an employment decision based upon work-related injuries is less engrained than these other employment laws. Section 287.780, which prohibits retaliating against an employee for exercising any rights granted by Missouri’s Workers’ Compensation Law, was originally passed by the General Assembly in 1939. However, this early version of the law only made discrimination based on exercising work comp rights a crime for which the employer could be convicted; there was no way an employee, fired for exercising protected rights, could get any individual redress. The Missouri Supreme Court declined to allow an employee such a claim in Christy v. Petrus, which lead to the General Assembly amending the statute in 1973.
Law goes from bad to worse.
The creation of the civil action did not give much cause for celebration, however. The Missouri Court of Appeals quickly determined that the exercise of work comp rights must be the “exclusive factor” for the employee’s termination in the decison Mitchell v. St. Louis County. The Missouri Supreme Court ultimately adopted this opinion in Hansome v. Northwestern Cooperage Co. Under these cases, an employee only had a case if the sole reason he or she was fired was filing a work comp claim. This meant that an employer could avoid liability by simply pointing to any additional, legitimate reason for termination. For example, an employer could make the decision to termination an employee based 95% on the exercise of work comp rights, and only 5% on an employee’s tardiness, yet still avoid liability. This continued to be the law in Missouri for almost forty years.
Section 287.780 finally gets some teeth.
In 2005, the General Assembly made yet another change to the Workers’ Compensation Law. It did so by adding Section 287.800. That Section requires courts to “strictly construe” the provisions of Chapter 287, including the cause of action granted by Section 287.780. This was in contrast to how the Law had previously been construed, which was in a very expansive way, seeking to extend its coverage as much as possible. Relying on the change to strict construction, in Templemire v. W & M Welding, Inc., the Missouri Supreme Court made a drastic change to what was required by Section 287.780. Following Templemire, decided in April 2014, an employee only needed to show that his or her exercise of rights was a “contributing factor” in the decision to fire. A “contributing factor” is any factor that contributes, to any degree, to the decision. This meant that individuals fired on April 14, 2014 (the day before Templemire was decided) had to prove they fired based 100% on exercising work comp rights; employees fired on April 15, 2014 only had to prove that the exercise of work comp rights was considered, to any degree—even 1%—to have a claim.
This huge change to long-standing law is a big reason employers still use work comp injuries as reasons to fire employees. It may be surprising, but decision s of the Missouri Supreme Court—even big changes like Templemire—aren’t generally broadcast to lawyers. Employers (and the lawyers that advise them) had not had to worry about Section 287.780 prior to 2014. But overnight, claims for discrimination based on exercising work comp rights became a very real, powerful claim for employees in Missouri. Three years later, many employers are still not taking notice of this change because they have failed to check in on Section 287.780 to find it has awoken from its forty-year slumber.
In 2017, the General Assembly made another change to Section 287.780. This change requires that the exercise of rights be the “motivating factor” in the decision to terminate. This change means that any employee terminated after August 28, 2017 must show that the exercise of work comp rights “actually played a role in the discharge” and “had a determinative influence.” The standard is now in between where it used to be: not exclusive, but also not solely contributing.
Like all insurance, work comp insurance is based on how big of a risk the insurance company perceives an employer to be. This is determined through an Experience Modification Rate or EMR. The more workplace injuries an employer reports, the higher this rate climbs. A higher EMR results in higher monthly premiums and can even result in a refusal by insurance companies to insure an employer. Further, an EMR is an industry-wide number, similar to a credit score for an individual. Employers that are teetering on the verge pushing their EMR past insurability are highly motivated to prevent work-related injuries. One illegal way an employer may seek to reign in work-related injuries is by coaxing employees to not report the injuries, instead seeking medical treatment via private insurance. This is known as “chilling” work comp claims, and is accomplished by firing employees that do file claims. This sends the message to others that any exercise of rights will result in termination.
Attempting to chill work comp claims is one common way in which employers attempt to prevent work comp claims. This motivation is tied directly to the owner or entity, as it is their responsibility to pay for work comp insurance. However, supervisors are also motivated to minimize work comp claims in several workplaces. This motivation develops from ownership as well: even if future claims are chilled, the current claims still increase EMRs. To combat this, means workplaces have developed “injury prevention” incentive programs. These programs often offer managers and supervisors monetary bonuses if they go a certain period of time without a workplace accident or injury.
Courts struggle with these types of programs. The intention of these programs—to prevent or minimize workplace accidents—is very admirable. However, the may well indicate an underlying, evil motive. If an employee is injured and causes a supervisor to miss out on a safety bonus, that supervisor may well retaliate against the injured employee. The supervisor also has a motivation to chill future claims, and, just like ownership, can use firing an injured employee to prevent future employees from exercising their rights.
Work comp retaliation claims are on the rise in Missouri. Decades of ability to terminate injured employees has made employers confident in their ability to use work comp injuries as a means of managing the workforce. Further, employers are motivated to keep work-related injuries in check. When conventional, appropriate means of controlling workplace safety fail, an employer may turn to chilling claims by making examples of those that do file claims. If you have been terminated after being hurt at work, contacting an attorney that is experienced in this complex area of law is essential.
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