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Tuesday, June 16, 2020

Supreme Court Holds Title VII Protections Apply to Gay and Transgender Individuals

In Bostock v. Clayton County, decided yesterday and available here, the Supreme Court of the United States held that the anti-discrimination protections of Title VII apply to gay and transgender individuals. The decision addressed three separate cases in which an employee alleged he or she was fired from his or her job because of his or her sexual orientation or transgender status. Each pursued a discrimination claim under Title VII alleging that their termination was “because of … sex” as that phrase is used in the statute, 42 U.S.C. §2000e–2(a)(1). The lower courts split on whether this allegation was sufficient to state a claim.

In a 6-3 decision authored by Justice Gorsuch, the Supreme Court held that the employees could proceed with their claims. The majority’s opinion is rooted in a literal reading of the statutory language, holding that the phrase “because of,” is the so-called “but-for” causation standard, which means that a change to the thing in question changes the outcome. The Court then held that individuals discharged because of their sexual orientation or transgender status were discharged “because of … sex” under the “but-for” standard because, in the words of the majority’s Slip Opinion at 9, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” While the Court acknowledged that in such cases there may be other factors that are part of the employer’s decision, it concluded that was irrelevant under the “but-for” standard because under that standard the test is whether the factor changed the outcome, not whether it was the exclusive factor in the decision. The majority reasoned, for example, that if an employer had a policy against employing women who have children but not against employing men who have children, that policy would not discriminate solely based on sex because having children is a factor in addition to the employee’s sex, but that policy would nevertheless clearly violate Title VII’s prohibition against discrimination because of sex.

Justices Alito, Thomas, and Kavanaugh dissented, claiming essentially that the majority opinion had usurped the role of Congress. They claimed that when Title VII was enacted in 1964, no one intended that the words “because of” sex included sexual orientation and transgender status, as evidenced by the fact, among others, that Congress has since attempted, but failed, to pass legislation protecting those classes.

We believe that the majority’s opinion is consistent with the recent trend in the law of many states, including Missouri and Illinois, which have protected transgender and sexual orientation either expressly or impliedly under their respective anti-discrimination statutes. For employers that already have policies, practices and training prohibiting discrimination against transgender and sexual orientation status, this decision may not require much additional action. Employers that have not yet addressed these issues in their policies, practices and training should do so.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by D. Leo Human and Charles S. Elbert.


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Tuesday, May 12, 2020

COVID-19 Update: St. Louis City and County Issue Standards and Guidelines for Re-opening Businesses

On May 8, 2020, both St. Louis City and St. Louis County issued orders providing almost identical standards and guidance for the re-opening of most businesses on May 18, 2020. For the full City order, click here, and for the full County order, click here.

The orders require all businesses that choose to re-open on May 18 to adhere to the following standards and guidance (in both St. Louis City and County, unless noted):

● Require frequent disinfection of all high touch surfaces and areas.

● Provide reasonable breaks for employees to wash hands.

● Train employees about procedures related to disinfection processes and social distancing requirements.

● Provide employees with face coverings or supplies to make face coverings.

● Require employees to wear face coverings while at work, unless such employee is working alone in an enclosed area. Employees with a medical reason for not wearing a face covering do not need to wear one (County only).

● Conduct daily screening of employees who work in their facilities for COVID-19 symptoms.

● Encourage employees to quarantine if they have or are believed to have COVID-19 or have come into contact with individual(s) with COVID-19.

● Require gloves to be worn by employees where appropriate (City only).

● Encourage remote working where feasible (City only).

● Consider policies like staggering shifts to increase social distancing (City only).

Also, the County order specifically permits a business to deny entry to an individual who refuses to wear a face covering for non-medical reasons. For businesses that have direct interactions with the public such as retail, restaurants, personal services with physical contact, and place of worship, the orders set forth some additional requirements, including:

● Limiting the number of people in the location based on the square footage and fire/building code occupancy (in line with Missouri’s re-opening order).

● Install physical barriers between customers and employees or otherwise ensure that six feet of distancing is maintained and install clear markings in areas of congregation to ensure six feet of distancing between customers.

● Post signage inside and outside the location detailing social distancing requirements (e.g., face covering) and limits on crowd size. The City requires signage about hygiene.

● Prohibit customers from bringing outside containers into the location.

● Consider separate operating hours for high risk individuals.

Both orders further mandate that certain businesses and facilities remain closed, except for minimum necessary activities to maintain a business’s inventory, provide security, process employee payroll and benefits, or to help employees to continue to work remotely. The following facilities may not re-open on May 18: entertainment, cultural, conference, casino and sporting venues; gyms and fitness centers; banquet rooms; bars that do not serve full meals are limited to curbside and pickup service; indoor and outdoor pools; sporting events; sports courts in the County; contact sports courts and playing fields in the City; and playgrounds.

Business that violate these standards and requirements could be subject to closure. If you are planning on re-opening your business in any fashion, you should carefully review the order applicable to your location to ensure compliance. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Kevin A. Sullivan.


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Friday, May 8, 2020

COVID-19 Update: Employees Vulnerable to COVID-19 Can’t be Excluded from Workplace Unless Their Condition Creates a “Direct Threat” to Their Health that Can’t be Accommodated

On May 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on reasonable accommodations for employees that have medical conditions that the Centers for Disease Control (“CDC”) says makes the employee more vulnerable to COVID-19 than the employee would be without the condition. EEOC guidance does not have the force of law, but it may be relied upon by courts in analyzing claims.

The May 5 guidance provides that if an “…employer knows that an employee has one of the…” CDC identified conditions that puts the employee at a “higher risk for severe illness” if they get COVID-19, then the employee cannot be automatically excluded from the workplace ‘…solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.’ However, the employer can exclude the employee if he/she poses a “direct threat”—meaning a significant risk of harm— to his health that cannot be reasonably accommodated. The “direct threat” assessment must be individualized based on a reasonable medical judgment about this employee’s disability. The employer also should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm. 

Even if an employee’s disability poses a “direct threat” to his own health, the employer still cannot exclude the employee from the workplace if the employer can provide a reasonable accommodation (absent undue hardship).  The guidance provides a non-exclusive list of reasonable accommodations, such as protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees, erecting barriers that provide separation of the disabled employee from co-workers, elimination or substitution of particular “marginal” functions, and temporary modification of work schedules or work locations. The employer must engage in the interactive reasonable accommodation process.

Therefore, employers should not conclude that an employee who is deemed more vulnerable to COVID-19 (even for the purposes of emergency paid sick leave under the Families First Coronavirus Response Act) can be excluded from the workplace. Employers must carefully analyze each employee’s situation and possibly consult with legal counsel before making a decision to exclude a particular individual from the workplace.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert.


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Friday, April 3, 2020

COVID-19 Update: New Temporary Rules Regarding Emergency Paid Sick Leave and Expanded FMLA

On April 1, 2020, the Department of Labor (DOL) issued temporary rules making changes to emergency paid sick leave and emergency family medical leave. These new rules are here. These rules interpret recent legislative enactments expanding job-protected family medical leave (EFMLA) and requiring up to 80 hours of paid sick leave (EPSLA) in response to the COVID-19 pandemic. The legislation is discussed in our March 19, 2020 update here. The new rules will be in effect from April 1, 2020 to December 31, 2020.

The new rules offer some clarification for the six EPSLA entitlements. One reason for EPSLA leave is that an employee is subject to a local quarantine or isolation order (including, for example, orders now in effect in St. Louis City and County). The new rules clarify that this applies to employees subject to an order only if the employer remains in operation and has work available and the employee cannot perform the work remotely (telework). Under the rules, an employee may take sick leave if a medical provider advises the employee to self-quarantine, among other reasons, because the employee is “particularly vulnerable” to COVID-19.

The new rules also address the scope of expanded family leave. The first two weeks of EFMLA are unpaid, unless the employee chooses to use emergency paid sick leave or other available employer-provided paid leave during that time. While these changes do not increase the total amount of family medical leave available (12 weeks), employees may in some circumstances be entitled to take up to a maximum of 14 weeks off if they do not utilize their emergency paid sick leave during their 12-week family medical leave period.

EFMLA and EPSLA leave may be taken intermittently (not consecutively) only if the employer and the employee so agree. Generally, there can be no agreement to allow EPSLA leave to be taken intermittently unless the reason for it is based on a COVID-19-related child care reason. However, it may be agreed that either type of leave can be taken intermittently if the employer directs or allows the employee to telework or if the employee normally works at home. If either type of leave is agreed to be taken intermittently such that only partial days or weeks are taken, only the amount of leave actually taken may be counted toward the employee’s total leave entitlements.

The EPSLA and EFMLA provisions apply to all employees of employers with fewer than 500 full-time and part-time employees in the United States, with the exception of health care providers, emergency responders and certain federal government employees. The definition of health care providers includes anyone employed at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department/agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar business, as well as entities that contract with any of these institutions to support their operation and entities that provide medical services or products. However, the rules appear to provide a limited exception to the health care provider exemption from EPSLA for employees of health care providers who have been advised by a health care provider to self-quarantine due to COVID-19 concerns.

The rules also explain how employers will qualify for the statutory small business exemption. This exemption, for employers with fewer than 50 employees, exempts employers from the requirement to provide EFMLA leave and emergency paid sick leave, if related to caring for the employee’s son or daughter, if an authorized officer of the business has determined one of the following: the leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimum capacity; the absence of the employee would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities, or there are not sufficient workers who are able, willing, qualified and available at the time and place needed to perform the employee’s duties and the employee’s services are needed for the business to operate at a minimal capacity. This determination by the company’s officer must be documented and the documentation (including the facts supporting the determination) must be retained by the employer. Employers do not have to submit anything to the government to prove qualification for the small business exemption prior to claiming it.

Employers cannot require notice from the employee sooner than after the first workday for which the employee takes one of the leaves. Documentation for leave should include:

  1. For both types of leave: name of employee, dates for which leave is requested, qualifying reason for the leave, and oral or written statement that employee is unable to work because of the qualified reason for the leave;

  2. For paid sick leave because of a quarantine order: all of (a) and the name of the government entity that issued the order;

  3. For paid sick leave on advice of a health care provider: all of (a) and the name of the health care provider;

  4. For paid sick leave to care for someone else: all of (a) and either: (b) as it relates to the individual OR (c) as it relates to the individual;

  5. For paid sick leave or EFMLA to care for a child out of school: all of (a) and the name of the son or daughter being cared for, the name of the school, place of care, or child care provider that has closed or become unavailable, and a representation by the employee that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave.

In order to qualify for the FFCRA tax credit, employers should retain all documentation supporting leave and its decisions about leave, including IRS Forms 7200 and 941 related to the employee’s leave, for four years.

The new rule also contains some clarification regarding telework arrangements. Ordinarily, DOL rules assume a continuous work-day, meaning that an employer must be compensated for the time between when he or she begins work and when work ends each day. The new rules’ definition of “telework” relaxes this assumption. Under this definition, employees working remotely must be compensated only for hours actually worked. This change is intended to account for the reality that many employers will be working irregular hours from home during this unique period.

Employers must post, or otherwise communicate directly to their employees (by email, direct mail, or posting on an employee information website), the FFCRA required notice, which can be found here.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, David A. Castleman, and Erin M. Leach.


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Thursday, April 2, 2020

COVID-19 Update: CARES Act Paycheck Protection Program

The Department of Treasury and Small Business Administration have released additional information and details, including a sample application, relating to the Small Business Paycheck Protection Program adopted as part of the CARES Act.  A brief summary and fact sheet of the Program can be found here.  To summarize, any business or non-profit entity with less than 500 employees (and some employers with more than 500 employees in certain industries) and sole proprietors and independent contractors are eligible for a loan to cover payroll costs, mortgage and rent payments, and utilities payments.  Funds from the loan used to cover payroll costs, mortgage, rent, and utilities in the 8 weeks after receiving the loan will be fully forgiven, but it is expected that at least 75% of the funds must be used to cover payroll costs to receive full forgiveness due to the projected high levels of participation in the Program.  The level of forgiveness is further conditioned on maintaining the same number of employees and compensation, or rehiring laid off employees in a timely manner.

The sample application (which can be found here) is comprised of 2 pages of questions and 2 pages of instructions.  The most important and labor intensive requirement will be for employers to provide the information on payroll costs, which determines the maximum amount of the loan.  Most employers will provide their average monthly payroll costs for the year before the loan and multiply that amount by 2.5 for the maximum loan amount.  Payroll costs include salaries, wages, commissions, health care insurance payments, and retirement benefit payments.  Compensation for any one employee is capped at $100,000 prorated on a monthly basis (i.e., nothing in excess of $8,333.33 per month can be included).  Documentation supporting the payroll costs will also need to be submitted.  Other attractive features of the Program loans include:

            ●          No collateral or personal guarantee;

            ●          Two-year term;

            ●          Interest rate of 0.5%; and

            ●          Deferral of payments for at least 6 months.

SBA-approved lenders and other banks and lenders will begin processing applications on April 3, 2020 for businesses and on April 10, 2020 for sole proprietors and independent contractors.  Interested employers should contact their local banks for the application.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our lawyers if you have any questions.

This update was prepared by Kevin A. Sullivan.


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Friday, March 27, 2020

COVID-19 Update: Coronavirus Aid, Relief, and Economic Security Act

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020, and contains numerous provisions summarized below that will assist and impact employers.  The full act can be found here

The CARES Act (§§ 1101-1114) provides for almost $350 billion in small business loans, which are available to business and non-profit organizations that employ less than 500 people and which require a good faith certification that the funds are necessary for operations and will be used to retain workers and make other payments.  No collateral or personal guarantee is required for these loans, and there is no requirement that the borrower show that credit cannot be obtained elsewhere.  The maximum amount available for the loan is the lesser of: (a) taking the average total monthly payments for payroll costs incurred 1 year before the loan and multiplying that number by 2.5; or (b) $10 million.  Allowable uses for the loan include payroll support (including paid leave and health benefits), salaries, mortgage and rent payments, utilities, and any other debt obligations.  Importantly, the Act provides (§ 1106) that a recipient of such a loan may apply to have the amounts spent on payroll costs, mortgage, rent, and utilities for 8 weeks forgiven.  Also, no fees are to be charged by the Small Business Administration, and payments on the loans can be deferred for six months to one year from the date of the loan.

The CARES Act further provides certain forms of tax relief to businesses (§ 2301-2308).  A refundable tax credit on payroll taxes paid are available to businesses that have been closed or suspended by government order or that have suffered a more than 50% decrease in gross receipts.  The payment of payroll taxes from March 27, 2020 to January 1, 2021 can be deferred so that at least 50% of the deferred payroll taxes must be made by December 31, 2021 and any remaining deferred amount paid by December 31, 2022.  The Act also modifies certain sections of the Internal Revenue Code such as those relating to net operating losses, limitations on losses, credit for prior year minimum tax liability, limitation on business interest, and qualified improvement property.  Employers should consult their accountant or tax professional as to how these changes can be beneficial.

Additional relief to employers could come from the Act’s Coronavirus Economic Stabilization Act, which provides for $450 billion in loans and guarantees to distressed businesses (ones with 500 to 10,000 employees are specifically mentioned in the Act) as determined by the Secretary of Treasury.  Employers should monitor developments as to whether their industry will be eligible for such loans and guarantees.

The CARES Act also places limits on the amounts that affected employers must pay for leave required by the Families First Coronavirus Response Act (“FFCRA”).  For an employee on leave under the Family and Medical Leave Act as required by the FFCRA, the limits are $200 per day and $10,000 in the aggregate.  For employees on emergency paid sick leave under the FFCRA, the limits are: (1) $511 per day and $5,110 in the aggregate for an employee who is under a government quarantine or isolation order, who is advised to self-quarantine by a healthcare provider, or who has Covid-19 symptoms and is under medical care; and (2) $200 per day and $2,000 in the aggregate for an employee who is caring for a person under quarantine, who is caring for children while schools or child care facilities are closed, or who is determined to be in similar condition.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Kevin A. Sullivan and David A. Castleman.


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Thursday, March 26, 2020

COVID-19 Update: Required Posting and April 1, 2020 Effective Date for FFCRA

The Families First Coronavirus Response Act (“FFCRA”) was passed last week, requiring private employers with 500 or fewer employees to provide two types of paid leave to their employees. Our summary of the FFCRA, including which employees are eligible and when the two leaves apply, was first published on March 19, 2020 and can be found here

The Department of Labor (“DOL”);has now released their “Employee Rights” poster under the FFCRA, which can be found here.  This notice is required for all qualified employers and, by April 1, 2020, must be: (a) posted in a “conspicuous place” on the employer’s premises which is accessible to all employees; (b) emailed or mailed to employees; or, (c) posted on an employee information website. Which of these constitutes adequate notice may depend on whether your employees are working remotely at this time.

The DOL has also announced that it interprets the FFCRA to be effective beginning April 1, 2020. This is different than the date previously provided in the text of the FFCRA.

There will likely be an exception to the FFCRA leaves for employers with less than 50 employees, where providing the leaves would jeopardize the viability of the business as a going concern.  However, the details of that exception, including eligibility and the process to qualify, have not yet been established or announced.  We expect that further information will be available from the DOL within the next week or so and will provide further updates.

The FFCRA has increased and changed many employers’ legal obligations to their employees.  Employers should carefully review their particular situation to determine whether the FFCRA will apply to their business and what impact it will have.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, David A. Castleman, Kevin A. Sullivan, D. Leo Human, and Erin M. Leach.


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Thursday, March 19, 2020

COVID-19 Update: Families First Coronavirus Act - FMLA and Paid Sick Leave Requirements

On March 18, 2020 President Trump signed the Families First Coronavirus Act (“Act”), which expands the Family Medical Leave Act (“FMLA”), provides emergency unemployment insurance, emergency paid sick leave and tax credits to employers for paid FMLA leave and paid sick leave. The legislation is to be effective not more than 15 days after it is signed (which would be April 3).  Set forth below is our preliminary analysis of the paid leave provisions so that you can consider this legislation in your decision making relating to employee leaves due to the coronavirus.

Emergency FMLA Leave. Employers with 500 or fewer employees are required to provide employees, who have been employed for at least 30 calendar days, with up to 12 weeks of job-protected leave (for employers with 25 or more employees) if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (as defined to cover the coronavirus). While the first 10 days of leave under such circumstances is unpaid unless the employee elects the employer’s available paid time off, thereafter a full-time employee must be paid an amount that is not less than two-thirds of an employee’s regular rate of pay with a cap of $200 per day and $10,000 in the aggregate. Adjustments are made for part-time employees based on the employees average number of hours worked during the six months (or two weeks if the employee worked less than six months) prior to taking emergency FMLA leave.

Paid Sick Leave. Employers are required to provide all employees with up to 80 hours of emergency paid sick time at the employee’s regular rate (subject to caps described below) for full-time employees and up to the average number of hours worked during a two week period for part-time employees. An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

This sick leave pay can be substituted for the 10 days of unpaid Emergency FMLA described above. The pay rate for this leave is capped at $511 per day and $5,110 in the aggregate  for employees taking leave generally described in (1)-(3), above and two-thirds of the employee’s pay at a cap of $200 per day and $2,000 in total for leave generally described in (4)-(6), above. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time and the legislation contains anti-retaliation provisions for use of sick pay or complaining about a violation.

General comments. Both of these leave programs currently expire December 31, 2020. The Secretary of Labor shall have the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee and to exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business as a going concern. Although not entirely clear it appears that employers that provide sick leave covering these absences may be able to use that leave to comply. We have not yet fully analyzed the tax credit provisions, but the legislation seems to provide for refundable tax credits equal to the qualified wages paid pursuant to these leave programs and against the employer portion of Social Security taxes.

As always, this is a preliminary analysis for informational purposes only. It does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions or if you would like assistance applying this legislation to a particular situation.

This update was prepared by Charles S. Elbert.


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Thursday, January 23, 2020

MHRA Retaliation Protections are More Limited than the Federal ADA

On January 14, 2020, in a case where our firm represented the employer, the Missouri Supreme Court held that the Missouri Human Rights Act (“MHRA”) does not create a cause of action where an employer allegedly retaliated against an employee for requesting an accommodation for a disability. Lin v. Ellis, SC97641.

 The employee in the case, Lin, requested not to do certain workplace tasks as an accommodation for alleged back pain. In 2012, her employment ended. Plaintiff asserted that her termination was retaliation for her requests for an accommodation for a disability. Defendant asserted that her employment was terminated because of lack of research grant funding for the laboratory research project she had been working on.

The Missouri Supreme Court did not address this factual dispute, but decided the case on a question of law: does the MHRA provide a cause of action for retaliation for requesting accommodation for a disability? The Court held it does not, based on the Court’s reading of the MHRA statute, which states that retaliation is prohibited where an employee has opposed a practice prohibited by the MHRA or where an employee has participated in an investigation pursuant to the MHRA. These two categories, “opposition” and “participation,” are the “protected activities” that can form the basis for a retaliation claim. But in Lin, the plaintiff did not engage in either of those activities. She merely requested an accommodation, which constitutes neither “opposition” to a practice nor “participation” in any investigation or proceeding. Therefore, the Court held, plaintiff failed to state a claim and the trial court should have entered judgment as a matter of law in favor of defendant.

Notably, this holding differs from court decisions under the American with Disabilities Act (“ADA”) holding that the ADA does cover a request for accommodation as a protected activity for retaliation purposes. The Missouri Supreme Court reviewed these cases and concluded that the reasoning is not applicable under the MHRA, given the particular language of the Missouri statute and the interpretive rules that the Court must follow in applying the statute.

For employers, the immediate impact of this decision may be limited. Employees are still protected from retaliation under federal law (assuming it applies to the employer), and therefore employer practices probably should not change. Over the longer term, however, this decision is likely to benefit employers because it may cause employees to consider filing some disability or retaliation cases in federal court — a forum many employers prefer for the defense of such claims. Moreover, the case is a significant development in MHRA case law because it shows the willingness of Missouri courts to draw a distinction between federal and state law even when it favors defendants.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and D. Leo Human.


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Monday, January 6, 2020

Missouri Supreme Court Limits Application of MHRA to Injuries in State

In two December 24, 2019 decisions, the Missouri Supreme Court clarified and limited the application of the Missouri Human Rights Act (“MHRA”) to employers that are located in Missouri but have out of state employees.

The two cases, Tuttle v. Dobbs Tire & Auto Centers, Inc., SC97721, and State ex rel. Anheuser-Busch, LLC v. Moriarty, SC97845, both involved employers with headquarters located in Missouri. In the Tuttle case, the employee was manager of a Dobbs Tire store located in Illinois, and in the Anheuser-Busch case the employee was a sales director for a territory including several states other than Missouri, and lived and received his paycheck in Iowa. In both cases, the employee alleged he had been subject to age discrimination and other unlawful conduct in violation of the MHRA.

Both employers moved to dismiss the employees’ claims because the employees in question were not located in Missouri and thus, the employers argued, were not protected by the MHRA. The trial courts split on the issue — in the Tuttle case the employee’s claim was dismissed, but in the Anheuser-Busch it was allowed to proceed. The Missouri Supreme Court resolved this disagreement by siding with the employers, holding that although the allegedly discriminatory decision in each case was made in Missouri, the resulting injury (which was allegedly suffered outside of Missouri) controlled in determining whether the MHRA would apply.

Both cases had strong dissents, which focused on the same decision versus injury analysis as the majority’s opinions, but would have reached the opposite conclusion. Notably, Judge Breckenridge, sided with the employer in the Tuttle case, but the employee in the Anheuser-Busch decision. The reasons for Judge Breckenridge’s decision are not stated in the opinions, but the most likely explanation is that she drew a distinction between the facts of the Anheuser-Busch case, in which the employee worked with office support staff in Missouri and attended regular monthly meetings in Missouri, and Tuttle, which contained no specific allegations that the employee’s work was in any way connected to Missouri.

For employers based in Missouri these cases clarify that, in general, an out of state employee may be protected by federal law and the law of the state in which the employee is located (where the injury occurred), but will likely not be protected under the MHRA even if the employment decision is made in Missouri.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and D. Leo Human.


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Friday, September 27, 2019

Department of Labor's Final FLSA Rule re: White-Collar Overtime Exemptions

On September 24, 2019, the United States Department of Labor released its final revised overtime rule under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”). 

Prior to the rule, the longstanding overtime exemption requirements were: (1) employee is paid on a salary basis rather than an hourly wage basis; (2) employee is paid at a salary level of at least $23,660 annually (or $455 per workweek); and (3) employee’s duties meet the elements of a professional, administrative, executive, or outside sales (collectively referred to as “white-collar”) exemption.  Requirements (1) and (3) remain unchanged by the new rule.  However the rule significantly modifies requirement (2) by raising the threshold salary level to $35,568 annually (or $684 per workweek).  Consequently, “white-collar” employees with a salary less than that amount will no longer be exempt, and therefore will need to record their time and be paid overtime for working more than 40 hours in a workweek.  This changed salary level has the potential to affect the wages of over 1.3 million U.S. workers. 

The rule goes into effect January 1, 2020, and applies to all employers covered by the FLSA.  In addition, the final rule modifies the threshold for “highly compensated” employees, who will now have to be paid an annual salary of $107,432 (previously $100,000) in order to meet that exemption. 

As a result of this final rule, employers should undertake a comprehensive and careful audit of their current wage and salary structure to ensure that they make appropriate adjustments for salaried employees classified as exempt currently earning between $23,660 and $35,568.  Based on each employer’s needs and staffing practices, there are several potential ways in which compliance with the new rule can be achieved, including: raising salaries, decreasing salaries to account for anticipated overtime, reclassifying employees, limiting or requiring pre-approval for overtime hours, redistributing workloads, using more part-time employees, using outside vendors to perform certain functions, and restructuring salaries to include bonuses/incentive pay. Employers may also want to reconsider and update all of their exempt/nonexempt classifications, particularly with regard to jobs that have changed since the last update of the rule in 2004. 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  

This update was prepared by Charles S. Elbert and Erin M. Leach.


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