News & Events
| Baker Sterchi Cowden & Rice is pleased to announce the promotion of John Patterson to Member effective January 1, 2018. Patterson practices in the areas of product liability, employment, construction/fidelity and surety, financial services litigation, premises liability...
| avid Eisenberg was quoted in a May 18, 2016, Law360 article “Attorneys React To DOL's Final Overtime Exemption Rule” regarding the significance of the U.S. Labor Department’s issuance of the final version of the overtime exemption rule raising the minimum salary threshold to qualify for the Fair Labor Standards Act’s white collar exemption. Eisenberg commented...
| David Eisenberg was quoted in a recent Law360 article regarding the significance of the U.S. Supreme Court’s Mach 22, 2016 ruling in Tyson Foods Inc. v. Bouaphekeo, where the High Court held that averages and other statistical analyses could be used to show similarities between disparate class members. Eisenberg commented...
| Thomas Rice is serving as co-chair of the upcoming program ”Enlightening The EPL/PL World” jointly hosted by ALFA International’s Insurance Law, Labor & Employment, and Professional Liability Practice Groups. A Steering Committee Member of the Insurance Law, Professional Liability and Labor & Employment Practice Groups, Mr. Rice is serving as co-chair on behalf of the Insurance Practice Group...
| Thomas Rice will moderate a panel on cyber liability and data breaches in the workforce and related legal and ethical considerations for in-house counsel, corporate risk management and law firms. Panel members feature representatives from three different insurance companies with cyber liability expertise plus an attorney from ALFA International’s Los Angeles, California member firm...
| Thomas Rice is serving as course book editor for the insurance track of the upcoming program "Enlightening the EPL/PL World" jointly hosted by ALFA International's Insurance Law, Labor & Employment, and Professional Liability Practice Groups.
| David Eisenberg was quoted in a recent Law360 article regarding the significance of the U.S. Supreme Court’s May 18, 2015 ruling in Tibble v. Edison International, where the High Court vacated a Ninth Circuit ruling that plaintiffs’ claims of alleged imprudent 401(k) plan investments were time-barred...
| David Eisenberg’s commentary on the significance of the U.S. Supreme Court’s March 25, 2015 ruling in Young v. United Parcel Services Inc. was included in a Law 360 article entitled Attorneys React to High Court Pregnancy Bias Ruling.
| David Eisenberg's commentary on the significance of the U.S. Supreme Court's June 24 ruling in University of Texas Southwestern Medical Center v. Nassar was included in a Law 360 article (Lawyers React to High Court Ruling on Retaliation Suit) regarding the significance of the ruling, which requires workers bringing Title VII retaliation claims to show their employer would not have taken action against them had they not filed a complaint. . .
| BSCR attorney David Eisenberg is serving as the Course Book Editor for the 2012 ALFA International EPLI Seminar to be held in New York in June. The EPLI seminar is jointly sponsored by the Insurance, Labor & Employment and Professional Liability Practice Groups. . .
| At the 2012 ALFA International Client Seminar, David Eisenberg will appear on a panel that will discuss "Class Actions after Wal-Mart v. Dukes." The seminar, hosted by the Labor & Employment Practice Group, is scheduled for March 8-11, 2012 at the Westin Kierland Resort & Spa in Scottsdale, AZ.
| Thomas Rice is the program co-chair for the June 2012 ALFA seminar to be jointly sponsored by the Insurance, Professional Liability and Labor & Employment practice groups.
| On May 11, David Eisenberg will be one of four attorneys speaking at a full-day seminar on Employment Discrimination Law in Overland Park, Kansas. David's portion of the seminar will cover best practices for avoiding discrimination and retaliation claims. . .
| Tom Rice and David Eisenberg are currently serving as a Regional Editors for the next edition of the ALFA State Employment Compendium. The Compendium will cover laws and significant developments on topics selected by the ALFA Labor & Employment practice group and will be published in advance of the 2012 ALFA International Client Seminar, at which the Labor & Employment group will be featured presenters. . .
| At the November 2010 ALFA Labor & Employment meeting in Dana Point, CA, Thomas Rice spoke on the topic of "Staying Ahead Of The Game: How Employers Can Cope With Changing Laws And Increased Regulatory Scrutiny".
| David Eisenberg served as Co-Chair of ALFA International's program titled "Employer Liability: Stemming the Rising Tide", in New York City, June 16-18. The program was attended by 180 lawyers and insurance professionals, and was co-sponsored by ALFA's Labor & Employment and Insurance Practice Groups. . .
| In August 2018, the Tenth Circuit Court of Appeals decided Dish Network L.L.C. v. Ray, an important ruling in the field of arbitration clauses and their effect on potential class action litigation. The Tenth Circuit specifically addressed the question of who should determine whether an arbitration clause allows classwide arbitration: a court or an arbitrator?
| While we regularly report to our readers on significant case law developments in the labor and employment field, the most dramatic developments in Missouri, over the past year, have played out in the legislative arena.
| In a closely watched and long-awaited ruling, the U.S. Supreme Court on May 21st held that it is lawful for an employer, in an agreement with an employee, to provide that all disputes be resolved through one-on-one arbitration between the company and the employee.
| The Missouri Court of Appeals affirms the trial court's dismissal of a claim for defamation, based on the intra-corporate immunity rule, which protects certain internal communications made to corporate managers.
| A recent ruling by the Court of Appeals for the Eastern District of Missouri illustrates the perils of using disjunctive verdict directing instructions. In Kader v. Bd. of Regents, the court reversed a $2.5 million verdict against Harris-Stowe State University (“HSSU”) and remanded the case for a new trial based upon instructional error in the disjunctive verdict directing instruction.
| The Missouri Supreme Court enforced a forum selection clause in an employment contract, holding that contract disputes between the parties could only be brought in Johnson County, Kansas.
| Despite an uptick in advocacy, support, and inclusion of the LGTBQ community over the past several decades, as of today, discrimination based on sexual orientation remains an invalid claim under the Missouri Human Rights Act (“MHRA”). However, in a recent decision by the Western District of the Missouri Court of Appeals...
| The Missouri Court of Appeals for the Southern District upholds denial of an employer's motion to compel arbitration ruling that at-will employment is insufficient consideration to support an arbitration agreement and denying employer's request to find that, in accordance with federal policy, at-will employment should be sufficient consideration for an arbitration agreement.
| Whistleblower claims do not apply to all statutory violations. A Missouri trial court erred in allowing a whistleblower claim to go to the jury, because the doctor's cited statutes did not reflect a specific and clear public policy supporting the whistleblower's claim. Whether the doctor reasonably believes an act violates public policy is irrelevant to his or her wrongful discharge claim.
| The Eighth Circuit Court of Appeals, in Donaldson v. Nat'l Union Fire Ins. Co. of Pittsburg, recently upheld the denial of benefits under an ERISA-governed insurance policy because the plan administrator's interpretation of the disputed policy language was found to be reasonable.
| In Watson v. Air Methods Corp., No. 15-1900 (8th Cir. en banc, Aug. 31, 2017), the Eighth Circuit Court of Appeals reversed its own precedent and held that a former employee may bring a state law wrongful discharge claim against an "air carrier," notwithstanding the pre-emption provision contained in the Airline Deregulation Act ("ADA").
| The Eighth Circuit Court of Appeals recently held that, because the RRTA authorizes taxes on money and not stock, Union Pacific Railroad Company is now entitled to a refund of approximately $75 million that it paid in taxes from 1997 to 2007 to the IRS.
| The U.S. Supreme Court rejects yet another creative state court end-run on arbitrability.
| The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.
| Earlier this week, Governor Eric Greitens signed Missouri HB 153 into law. HB 153, which supplants Missouri's existing expert witness standard with that set forth in Federal Rules of Evidence 702, 703, 704 and 705, effectively submits expert testimony in most civil and criminal case to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
| Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
| The Missouri Court of Appeals rules that a worker may owe an independent duty of care to a co-worker, which is separate and distinct from her employer's non-delegable duties.
| Most organizations collect and store personal or sensitive information about their clients and employees. Protecting sensitive or private information should be a priority for all organizations, regardless of their size. Threats to information security arise from...
| A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert’s analysis or conclusions.
| Employees acting negligently within the scope of employment are not granted immunity under the Worker's Compensation Act; they remain liable if plaintiff establishes that a co-employee breached a personal duty of care.
| Three years ago, the Missouri Supreme Court handed down a decision concerning when and how an employer had to challenge an employee's alleged untimely filing of a complaint under the Missouri Human Rights Act. Ever since, that decision has created consternation and confusion for practitioners, who hoped that this issue might be clarified in a Court of Appeals, Western District case.
| The Missouri Supreme Court reverses and remands an employment discrimination and retaliation case, in favor of employer-defendant, due to prejudice resulting from an improper submission of a jury instruction.
| On May 23, 2016, the U.S. Supreme Court decided the case of Green v. Brennan in order to resolve a split among the Circuits on whether, in an action for constructive discharge, the 45-day limitation period for the employee to initiate contact with the EEOC begins to run after the employer's last discriminatory act, or at the time of the employee's resignation.
| A recent order of the U.S. District Court for the District of Kansas may be beneficial to defense practitioners fighting the so-called "reptile theory" of plaintiff's litigation, frequently aimed at trucking companies, which attempts to put the company on trial rather than litigating the circumstances of a particular accident. A targeted motion to dismiss and strike, focused upon the broad, boilerplate complaints that allege hiring, training, qualification, and supervision practices by the company and alleged violations of the FMCSA and FMSCR, may help to limit the scope of discovery and evidence sought in furtherance of the "reptile theory."
| On May 18th, the U.S. Department of Labor issued its final overtime exemption rule, raising the minimum salary threshold to qualify for the Fair Labor Standards Act's white collar exemption to $47,476 per year. The regulation takes effect on December 1st. Between now and then, employers have an important decision to make for their white collar employees whose earnings are near the new threshold.
| On April 11th, Missouri Governor Jay Nixon signed an executive order requiring that state departments, agencies, and boards and commissions under the executive branch remove questions about criminal history from the initial job applications of prospective employees.
| We are often asked by clients if there is anything they can do to keep Plaintiff's counsel from speaking with managers who are no longer with the company. A recently published Missouri Informal Advisory Opinion on Legal Ethics (Opinion 2013-01) addresses this subject.
| While a Kansas court may grant relief from a final judgment based on excusable neglect, it is an abuse of discretion to grant that relief when the party seeking that relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim.
| The Missouri Court of Appeals for the Western District, applying a modified economic realities test, held that AutoZone, Inc., the parent corporation of AutoZoners, LLC, was not Plaintiff's employer for purposes of the Missouri Human Rights Act. However, the Court found that Plaintiff made a submissible case for sexual harassment, which lead to its decision to uphold the jury's rulings in favor of Plaintiff for her hostile work environment claim, the trial court's decision in refusing to reduce the award of compensatory damages and the jury's award of punitive damages against AutoZoners, LLC. The case was ultimately remanded on the issue of attorneys' fees.
| On November 17, 2015, the Missouri Court of Appeals for the Western District ruled for the first time that a misdemeanor first offense for driving while intoxicated did not qualify as a crime of moral turpitude.
| In the case of Sharpe Holdings, Inc., et. al. v. U.S. Department of Health and Human Services, the U.S. Circuit Court of Appeals for the Eighth Circuit upheld a preliminary injunction issued by the U.S. District Court for the Eastern District of Missouri, which enjoined the government from...
| On October 14, 2010, 61 year old Steven Cox was fired from the Kansas City Chiefs. He was replaced with a 37 year old. Litigation ensued and presumably concluded, with a decision in the Chiefs’ favor. The Missouri Supreme Court, however, threw a penalty flag, and granted a new trial in the case. Read more to find out why.
| Recently, the Missouri Court of Appeals, Western District, upheld a $2 million punitive damages award against an employer in a disability discrimination case brought under the Missouri Human Rights Act...
| In Bowers v. Asbury St. Louis Lex, LLC d/b/a Plaza Lexus, et al., the Missouri Court of Appeals for the Eastern District, in a race discrimination lawsuit, issued its latest ruling on employer-employee arbitration agreements.
| On March 9, the U.S. Supreme Court granted certiorari at the request of the University of Notre Dame on another matter arising from the Affordable Care Act, and remanded the case to the U.S. Court of Appeals for the Seventh Circuit, with instructions to reconsider its ruling in light of the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby.
| The Eighth Circuit recently analyzed the application of the “outside sales” and “administrative” exemptions under the Fair Labor Standards Act in the context of promotional workers. Also, the Court was asked to decide, for the first time, what constitutes a valid waiver of an employee’s rights under the FLSA.
| Eighth Circuit affirms summary judgment for Employer on a retaliation claim, absent evidence of pretext.
| It is time for Missouri employers to re-evaluate their employment agreements to see if the arbitration clauses, or the agreements as a whole, are still enforceable. Notwithstanding the U.S. Supreme Court's repeated endorsement of the enforceability of arbitration agreements, the Missouri Court of Appeals for the Eastern District has elevated to a whole new level the Missouri courts' hostility toward arbitration clauses in employment agreements, in the case of Jimenez v. Cintas Corporation.
| In an action that has drawn significant national media attention, Kansas Governor Sam Brownback issued an Executive Order rescinding an Executive Order signed eight years earlier by then Governor Sebelius, which had prohibited discrimination against state employees based on sexual orientation or gender identity.
| A former federal air marshal's communication of TSA decision to terminate missions, despite a hijacking threat, was protected under the whistleblower statute because it was not a "specifically prohibited disclosure."
| Eighth Circuit Upholds Summary Judgment on ADEA Claim.
| This is the first ban-the-box ordinance in Missouri that applies to private employers.
| Eighth Circuit reverses summary judgment against terminated employee, where employer had asked its insurer for premium deductions because its "oldest, sickest" employers were no longer with the company.
| St. Louis life science company's non-compete clause is ruled overbroad in scope, and information for which protection was sought was not truly "trade secret".
| Recently enacted Kansas law changes the rules for business owners who wish to restrict firearms on their premises.
| U.S. District Court refuses the EEOC's attempt to block the implementation of Honeywell's employee wellness program, which provides incentives for its employees to take advantage of health screenings.
| The Kansas Supreme Court, in Craig v. FedEx Ground Package System, clarifies the standard for determining whether workers are employees or independent contractors
| The Missouri Supreme Court recently sustained the trial court’sdenial of an employer’s motion to compel arbitration in the case of Carla Baker v. Bristol Care, Inc. d/b/a Bristol Manor, et al., No. SC93451.
| Individuals and businesses relying upon contractors to provide labor services may be exposing themselves to liability if these contractors fail to pay their employees in accordance with the Missouri Minimum Wage Law.
| The EEOC expands "reasonable accommodation" rights of pregnant employees.
| The FMLA offers significant protections to eligible employees. However, FMLA rights do not shelter an employee who refuses to comply with her employer's reasonable requests for information, and that refusal may even be grounds for termination. In some circumstances, even if the requests are somewhat related to the FMLA leave, the employer may be protected from an FMLA interference claim.
| In Templemire v. W&M Welding, Inc., the Missouri Supreme Court threw out its long-held interpretation of section 287.780, RSMo requiring a plaintiff in a worker's compensation retaliatory discharge claim to prove their filing a claim under Chapter 287 was the exclusive cause for the discharge. The Court now holds…
| NLRB General Counsel fires a shot across the bow of McDonald's and other national franchisors.
| The Tenth Circuit addresses the duration of sick leave, as a "reasonable accommodation" for an employee with a disability.
| The U.S. Supreme Court handed down its Hobby Lobby decision on June 30 and it is already having a ripple effect. On July 3rd, the Court issued an injunction on a case pending in the lower Federal Courts simplifying the paperwork needed to claim a religious exemption under the Hobby Lobby decision. The female members of the Court issued a dissent to the order.
| Closely-held or family owned companies whose owners have strong religious beliefs may be able to exclude certain contraception-related benefits from their employee health benefit programs. The federal government has available "less restrictive" means of assuring that employees get access to such care at no additional cost, than an outright mandate that all employers provide those benefits.
| Experts are not required to rule out all possible causes when performing the differential etiology analysis if the experts have properly ruled in the alleged cause.
| Employers need well-drafted contractual agreements to compel arbitration with their employees for sexual harassment and discrimination claims. In Baier v. Darden Restaurants, et al., 420 S.W.3d 733 (Mo. App. W.D. 2014), a Missouri appellate court held that an arbitration agreement was not enforceable when an employee signed a document stating that all employment disputes would be arbitrated, but the employer did not sign.
| A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.
| A man who sued his former employer, alleging he was discharged in retaliation for filing a workers' compensation claim, appealed on the basis that the trial court used a jury instruction with the wrong standard. In a 5-2 decision written by Judge George W. Draper III, the Missouri Supreme Court rejected the 'exclusive causation' standard and replaced it with the "contributing factor" standard. On remand and in future cases, the jury must determine whether the plaintiff's filing of a workers' compensation claim was a "contributing factor" to his or her discharge.
| Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).
| When a motor vehicle collision involves a commercial vehicle, plaintiffs often sue the commercial driver's employer through respondeat superior, whereby employers are strictly liable for the negligence of their employers.
| The plaintiff has the burden of proving standing, which is a jurisdictional issue that can be raised at any time.
| The Supreme Court resolves a split in authority, and opts for a broader reading of who may bring a whistleblower claim under SOX.
| In Kansas, the parties bind themselves to an enforceable settlement, even though the parties contemplate subsequent execution of a formal instrument. However, when the parties specifically condition a contract on it being reduced to writing and signed, there is no enforceable contract until such act is accomplished.
| Plaintiff furnished sufficient evidence to show that the employer's claim that he was fired for safety violations was a pretext for discrimination
| Some major changes are coming soon to Missouri's Workers' Compensation Law. Earlier this year, the Missouri General Assembly passed what began as a legislative effort to address issues in the coverage of occupational diseases created by the switch in 2005 to strict construction of the Law. In the end, this effort resulted in…
| The high court is expected to resolve a circuit split on whether the owners of privately held secular companies, who oppose offering contraception-related benefits on religious grounds, may challenge these mandatory coverage requirements under the Religious Freedom Restoration Act
| Employers must carefully monitor injured workers' potential claims against third parties who caused workplace injuries, and proactively manage the litigation process.
| Companies who employ drivers may be exposed to greater liability in Missouri courts. In McHaffie v. Bunch, 891 S.W.2d 822, 824 (Mo. banc 1995), the Missouri Supreme Court held that once an employer has admitted to respondeat superior liability for an employee driver's negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability, such as negligence in employee hiring, retention, or training.
| The Missouri Supreme Court has repeatedly interpreted the Missouri Human Rights Act in a manner that makes it easier for plaintiffs to pursue claims, and harder for employers to defend them, than under similar federal anti-discrimination statutes. (See our March 20, 2013 report titled Burden of Proof in Retaliation Cases.) Here, once again, the Missouri Supreme Court diverges both from federal precedent and prior Missouri precedent, making it more difficult for employers to dismiss untimely discrimination complaints that are filed under the MHRA.
| Missouri adheres to the rule prevailing in most jurisdictions that in the absence of a contract between an employer and employee for a definite term or a contrary statutory provision, an employee can be terminated at any time with or without cause or for any reason, provided the termination does not run afoul of a federal or state anti-discrimination statute. Amaan v. City of Eureka, 615 S.W.2d 414 (Mo. 1981).
| The EEOC recently filed a lawsuit against The Founders Pavilion, Inc., alleging that the company violated the Genetic Information Discrimination Act (GINA). In the suit, the EEOC charges that a New York nursing and rehabilitation center violated federal law when it asked for applicants' family medical history as part of a post-offer, pre-employment medical exam.
| The rigorous standards for class certification enunciated in recent U.S. Supreme Court decisions are being applied in the federal Circuit courts. Wal-Mart v. Dukes and Comcast require strong proof of "commonality" and other FRCP Rule 23 elements, at the class certification stage, even if this overlaps with the merits of the case.
| Two important decisions that can limit the scope of employer liability in Title VII cases; less clear how helpful these decisions will be in cases brought under the Missouri Human Rights Act.
| When the reason for termination falls within the "public policy" exception to the employment-at-will doctrine, parties cannot contractually shorten the two-year Kansas statute of limitations for commencing a retaliatory discharge action
| In the future, courts may be obliged to give broader deference to EEOC, NLRB, and U.S. Department of Labor interpretations of the agencies' own authority. The recent U.S. Supreme Court decision in City of Arlington v. FCC, - U.S. - , No. 11-1545 (U.S. May 20, 2013) involved the validity of a Federal Communications Commission ruling on the regulation of wireless towers and antennas. . .
| When a plaintiff, in his summary judgment opposition papers, attempts to first introduce information that should have been part of his Rule 26 disclosures (or supplements to them), defendant should move to strike.
| The Kansas Supreme Court has recently clarified the legal standard for determining if an employee injury at a company-sponsored social event arose "out of and in the course of employment", thus making the employee eligible to receive Workers Compensation benefits.
| In Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013), the Eighth Circuit recently held that an arbitration agreement that included a class action waiver provision was enforceable under the Fair Labor Standards Act. In so ruling, the Eighth Circuit squarely rejected the NLRB's holding in D.R. Horton that such waivers are unenforceable because they violate employee rights under Section 7 of the NLRA.
| In a recent opinion, the Missouri Court of Appeals for the Western District held a workers' compensation claimant had sufficiently proven her husband sustained an occupational disease arising out of and in the course of his employment with Capital Region Medical Center with evidence that his hepatitis C was "probably" caused by his employment. This, despite the fact that claimant presented no evidence that anyone with hepatitis C was ever present in the workplace.
| Employers around the country are eagerly waiting for the U.S. Supreme Court to rule on the appropriate standard of proof for Title VII retaliation claims, in University of Texas Southwestern Medical Center v. Nassar . What does this mean for Missouri employers? Less than you might think.
| In the wake of the Chiefs' recent courtroom setback in which their arbitration agreement with employees was held unenforceable (see post Kansas City Chiefs Start the Season 0-2), the Chiefs recently went to trial in an age discrimination case filed by a 61-year old maintenance manager with 12 years of service. . .
| On February 26, 2013, the Missouri Court of Appeals, Western District ruled on the cases of two former Kansas City Chiefs employees who had been terminated, and had filed complaints of age discrimination. In one case, the day after she was hired, the employee (a Community Relations Director) was directed to sign an agreement requiring that any dispute. . .
| This decision underlines the importance of observing the contractual nature of an agreement to arbitrate. It is also another case which warns of the dangers of an employer: a) relying on the mention of, or reference to, outside or ancillary agreements as a substitute for explicitly being bound by specific terms of the agreement at issue; and, b) not signing the agreement.
| In this case, a corporate successor, Central Trust sued the former employee of its acquired company, Springfield Trust after the employee started a business which directly competed with his former employer and Central Trust.
| Those of us who practice employment law find ourselves, with increasing frequency, dealing with the preparation and negotiation of employee non-compete agreements, and the handling of disputes concerning such agreements. A "non-compete agreement" is any restrictive covenant entered into between employer and employee that restricts post-employment activities of the employee. . .