Auditor, MATA urge Greitens to veto SB 43 over ‘Whistleblower Protection Act’

JEFFERSON CITY, Mo. – The opposition to Senate Bill 43, a bill relating to workplace discrimination, was fierce during the 2017 legislative session.

Opponents of the bill, including the ACLU, the NAACP, as well as a number of legislators, said that if it were passed into law, it would undermine civil rights protections, allow for retaliation against employees who report violations and make it easier to discriminate against women.

Proponents of the bill called it necessary to protect businesses from frivolous lawsuits, saying it would ensure a business-friendly environment in the state. They believe the legislation will force attorneys to be more selective in the cases they take on, and say that it may cause more cases to wind up in federal court.

But despite the best attempts from some of the opposing lawmakers, the controversial bill managed to pass both the Senate and the House, leading to one final hope for opponents of the bill: a veto from Gov. Eric Greitens. Members of the Democratic caucus even appeared at the governor’s door during the session with written letters, urging him to veto the bill.

They argue that the bill alters the threshold for proving workplace discrimination, and instead requires a person to demonstrate their protected status was “the motivating” factor in their being fired or harmed.

Several others have called on the governor to veto the bill, including Pat Rowe Kerr, a woman who sued Veterans Commission Director Larry Kay and the state, alleging age discrimination in her 2009 firing. Gov. Greitens gave a deposition in her case, and now she has also penned a letter to the governor on the matter.

But now, a fellow statewide officeholder State Auditor Nicole Galloway is also calling on Greitens to shoot down the legislation.

Her main reason for coming out against the bill is to protect one of the key sources to her job as auditor: the whistleblowers.

The auditor’s office has long relied on the information of whistleblowers to help find issues and discrepancies, and Galloway says this new bill’s provision jeopardizes whistleblower protections for state employees.

“This legislation makes it easier for government to operate in the shadows. Employees must be able to raise concerns without fear of losing their jobs. If enacted, the measure would almost certainly create a chilling effect that would undermine the state’s ability to uncover wasteful, improper or illegal uses of taxpayer dollars. Compromising long-standing whistleblower protections increases the threat of retaliation and fosters an environment of intimidation for those who report wrongdoing.”

To emphasize her points, the auditor penned a letter to Greitens, urging him to veto the bill. A copy of that letter is available here.

It’s a sentiment echoed by members of the Missouri Association of Trial Attorneys, as well.

Benjamin F. Westhoff is an attorney for Sedey Harper Westhoff, P.C., and says the “Whistleblower Protection Act” actually severely limits whistleblowers in the state by defining the term employer and placing a cap on the remedies.

Westhoff says that current law allows people to sue for lost wages, back pay, stress, and punitive damages. He says that if SB 43 is signed into law, that changes in massive ways.

“Even if you win, the only thing you can get is your back pay, medical expense reimbursement, and if you can prove the standard for punitive damages, then you get double your back pay as liquidated damages,” he said. “If you’re a low-wage earner, then economically speaking, it doesn’t make sense to bring forward the case.”

The provision takes away the jury’s ability to award punitive damages, which juries often grant in large monetary figures as a way to punish employers who have acted wrongly. But Westhoff says an even bigger problem lies within the bill.

“The problem with this bill: if you work for the state of Missouri and you report any illegal activity, you’re out of luck. You have no recourse under this law if you are fired or punished,” Westhoff said. “If there’s one thing Greitens should be concerned about, it should be about taking the state employees out of whistleblowing. What it seems to me is that it would allow the state to operate in complete darkness.

“I can’t imagine why they state government would want that kind of policy. We want people to speak up and report activity.”

Gov. Greitens has not given any indication on what his action, if any, will be on SB 43, but said at his end of session press conference that he would take the time to check each bill before making a decision.

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