On January 15, 2025, the Supreme Court of the United States issued a unanimous decision in E.M.D. Sales, Inc. v. Carrera, finally clarifying the standard of proof for employers to demonstrate an employee is properly exempt from minimum-wage and overtime-compensation requirements under the Fair Labor Standards Act of 1938 (“FLSA”). Long story short, the Supreme Court has made it crystal clear that FLSA exemptions are subject to the default “preponderance of the evidence” standard, akin to other employment law claims under Title VII. The Court explained that this decision was made, in large part, because: (1) the FLSA does not specify an evidentiary standard (which generally indicates a default preponderance standard); and (2) it does not involve the limited types of claims (e.g., constitutional claims or citizenship removal proceedings) in which the heightened “clear and convincing evidence” standard is warranted. Until the Carrera decision, the Fourth Circuit stood alone as the sole circuit embracing the “clear and convincing” standard of proof for FLSA exemptions. The Carrera decision rectified this discrepancy, making every circuit uniform in this respect. Ultimately, this decision is a win for employers in the Fourth Circuit, because it lowers their evidentiary burden to successfully argue their workers fall within an FLSA exemption. Employers elsewhere should continue doing business as usual. Contact your Polsinelli attorney to inquire whether your workforce is properly classified as exempt under the FLSA or to spot potential areas of risk related to minimum wage or overtime pay issues.

On September 9, 2021, President Biden unveiled a COVID-19 Action Plan that requires, among other things, millions of private-sector employees, health care workers, federal employees, and employees of federal contractors to be vaccinated against COVID-19. The announcement resulted in a political firestorm, leaving many employers wondering how new rules might affect both them and their employees. Announcement. President Biden mandated that employees working (1) within the executive branch of the federal government, (2) for employers with 100 or more employees, (3) at health care facilities that receive funds from the Medicare or Medicaid reimbursement program, and (4) for federal contractors, be vaccinated against COVID-19. Employers with over 100 employees are given the option to ensure their workforce is fully vaccinated or require testing on at least a weekly basis. Employers of over 100. President Biden charged the Occupational Safety and Health Administration (OSHA) with responsibility for issuing an emergency temporary standard related to businesses with 100 or more employees. Specifically what OSHA might order is yet to be seen, but mandatory vaccination or regular testing on at least a weekly basis, plus paid time off to get vaccinated and to recover from any side effects, will be included. Penalties of $14,000 per violation are also anticipated. There will likely be legal challenges regarding OSHA’s authority to issue such standards under current circumstances. To prevail, OSHA must prove that workers are exposed to a grave danger and the standards are necessary to address that danger. Any emergency standard must also be feasible for employers to enforce. Good news for employers seeking consistency may be that any OSHA standard would pre-empt existing rules by state and local governments, except in states with their own OSHA-approved workplace agencies (https://www.osha.gov/stateplans). Those states would have 30 days to adopt a standard that is (1) at least as effective as the OSHA standard, and (2) covers state and local government employees not covered by OSHA. Health care employees. President Biden’s Action Plan provides that the Centers for Medicare & Medicaid Services (CMS) will expand the vaccination requirement it issued for nursing home staff to other health care settings that receive Medicare and Medicaid reimbursement, including but not limited to hospitals, home-health agencies, ambulatory surgical settings, and dialysis centers. Education employees. The Department of Health and Human Services will require vaccinations in Head Start Programs, and schools run by the Department of Defense and Bureau of Indian Education, affecting about 300,000 employees. Federal employees. President Biden’s Action Plan requires all Federal employees to be vaccinated, with exceptions only as required by law (such exceptions include exemptions for employees with religious or medical reasons for avoiding vaccination). Federal employees who do not qualify for such exemptions but nonetheless refuse to be vaccinated will be counseled and disciplined, up to and including potential termination of employment. President Biden also signed an Executive Order directing that the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health extend this standard to employees of contractors that do business with the federal government. We anticipate OSHA to issue the emergency temporary standard and CMS to issue additional guidance related to President Biden’s Action Plan in the coming weeks. We will continue to provide updates as we learn more. If you have questions or would like more detailed information regarding these recent announcements, Polsinelli’s Labor & Employment team is here to assist.

On January 19, 2021, the EEOC issued its second Annual Performance Review (or report card), evaluating the agency’s accomplishments in FY20 in comparison to the EEOC’s Strategic Plan for Fiscal Years 2018-2022. The Plan describes three strategic objectives and goals on which the EEOC must focus. The Plan also identifies 12 performance measures for use each year in gauging the EEOC's progress through fiscal year 2022. For 2020, the EEOC found that it fully met 10 of the 12 performance measures, and partially met two performance measures. Thus, in 2020, the EEOC’s grade fell slightly to an A- from the A+ it awarded itself in the first Annual Performance Review released in early 2020 for FY19. Practically, the EEOC’s Annual Performance Review allows employers a very important peek behind the curtain for insights into areas on which the EEOC may focus its enforcement efforts.

Numerous employment lawyers and articles have addressed whether employers should mandate or strongly encourage employees to get vaccinated when the COVID-19 vaccination is available to them. Fewer have provided reminders to employers regarding the steps and precautions necessary following an employee’s vaccination. First, employees should be strongly reminded that they are not fully vaccinated (and maximally protected) until both of two required vaccine doses are administered. As a result, the CDC’s precautions—including mask wearing, social distancing, and hand washing—must continue to be followed even if a dose of the vaccine has been received.  CDC guidance on proper precautions can be found here. Most importantly, even after employees are fully vaccinated with both injections, they must remember the vaccination is not like a Monopoly “get out of jail free” card. No vaccine is foolproof regardless of the illness it is intended to prevent. COVID-19 vaccinations are no different—they are not 100% effective and it is still not known if and to what extent they prevent transmission of the disease. As a result, employees should continue to act and follow all CDC guidelines as if they have not been vaccinated. We advise that employers provide their employees with these important reminders in writing and obtain agreement from their employees that they will continue to follow all precautions until medical experts’ guidance provides otherwise.

States and businesses are on their own based on a CDC official’s statement to the Associated Press that the much-anticipated “Guidance for Implementing the Opening up America Again Framework” (“Guidance”) will “never see the light of day.” The 17-page CDC Guidance report or playbook was expected to be released on Friday, May 1. Reports this morning, however, stated that the Guidance was “shelved.” The document, described in various news stories last week, was “far more detailed” than prior CDC materials related to the reopening of businesses across the nation. News articles also reported that the Guidance had "site-specific decisions related to reopening schools, restaurants, summer camps, churches, day care centers and other institutions." One explanation for shelving the project focused on concerns that the virus is affecting different states and communities in unique ways; there simply is no “one-size-fits-all.” While this sentiment is true in certain respects, there are many common questions businesses / employers must ask themselves, strategically analyze, and plan to handle as they bring employees, customers, and other third parties back into their work spaces. The materials available in a new 40+ page Polsinelli “COVID-19 411, Employer Playbook for Occupational Health and Business Continuity” and at Polsinelli’s COVID-19 Blog: What Your Business Needs To Know will help businesses think through state and local requirements, and health department recommendations. Polsinelli attorneys are also prepared to assist in the development or review of new forms, checklists, signage, policies, and procedures businesses must develop on their own, given this new information. Section 1 of Polsinelli’s “Employer Playbook” provides an easy to use “Opening up America” chart for employers based on guidelines from the United States, along with a summary of orders in various states (effective as of May 1, 2020). Section 2 provides employers guidance as they plan to re-open – analyzing policies and new compliance requirements, continuing to build their pandemic response plan, and preparing to communicate how new requirements, recommendations, policies, and procedures will affect employees and others personally. Section 3 discusses how, as employees return to work, employers should or may develop an illness detection program, including screening employees and others for symptoms, taking temperatures, and even (when appropriate) requiring testing. Section 4 describes how employers can set up and begin their Advance Contact Tracing programs even before anyone reports an infection. Section 5 provides employers with immediate steps to take when someone reports an exposure in the workplace. And, finally, a list of Do’s and Don’ts is available as a general reminder of various actions employers should or should not take. Additional information, including up-to-date interactive maps and financial assistance for businesses, may be found on at the Polsinelli’s COVID-19 Blog: What Your Business Needs to Know. We strongly encourage you to contact your Polsinelli attorney or a member of the Labor & Employment Department for assistance as you plan your successful future. If you would like to receive a copy of the “COVID-19 411, Employer Playbook for Occupational Health and Business Continuity” or speak to a Polsinelli attorney, please email 411_Employer_Playbook@Polsinelli.com.

A growing number of states, along with Puerto Rico, the Navajo Nation and a significant number of counties and municipalities, have issued mandatory “shelter in place” or “stay at home” orders. To read more about these orders, click here. Many other states, counties, and municipalities have ordered that all nonessential work stop in their areas. Although the shelter in place orders are more restrictive (significantly limiting the movement of residents and the operation of businesses in each affected jurisdiction), the essential work only orders are also incredibly disruptive to employers and employees alike. For more information about shelter in place and other orders, please see our COVID-19 resource library. While there is a distinct chance the federal government will issue similar restrictions for the entire country in the near future, at this time no federal agency has mandated the closure of businesses. There are, however, many federal agencies actively involved in managing the pandemic crisis. Particularly, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency issued guidance to state and local “critical infrastructure” workforce of multiple industries: in other words, the employees whose services are essential for certain businesses that must remain open during the COVID-19 pandemic. This guidance will advise employers along with additional jurisdictions as they develop their “red alert” orders. It will also guide all jurisdictions in interpreting their own orders as they make enforcement decisions or otherwise interpret their orders based on the circumstances as they unfold. Every business needs to prepare for the possible imposition of such orders regardless of the current situation in their state. While the shelter in place orders have some differences, they typically have the following common characteristics: Businesses not deemed “essential” are ordered to cease operations or greatly restrict operations to work that can be completed by employees remotely in their homes. Only essential employees or employees needed for minimum basic operations may leave their homes to support “essential businesses.” Residents must stay in their homes except to engage in “essential activities,” when they are qualifying employees of an essential business, or for outdoor exercise during which social isolation practices must be practiced. Travel is greatly restricted with a handful of exemptions. Both the shelter in place and nonessential business restriction orders have significant implications for all businesses, which is why we have created a devoted team to assist businesses with the following steps: Interpret the specific requirements of each applicable order. Determine if the business qualifies as an essential business. If the business qualifies as an essential business, determine the minimum basic operations of the business and which workers qualify as essential employees. Develop notices to employees regarding the essential status of the business, and written confirmation or certifications for essential employees to present when stopped by or dealing with police or public agencies charged with enforcing the order. Review staffing needs and placement options, including paid and unpaid leaves, furloughs, and layoffs. Develop effective notices to suppliers, vendors, and customers regarding the status of the business under the order. Consider possible support and assistance offered at the state and federal level to support businesses impacted by these orders. Given how quickly this situation is evolving, it is imperative that all businesses develop a clear strategy for dealing with these orders and limitations. Please call your Polsinelli attorney or email COVID19Questions@Polsinelli.com for immediate assistance. *This post was originally published on March 22, 2020

Despite many politicians and employers discussing the option for employees to work at home, there are millions of employees who simply cannot do that. Bartenders, restaurant servers, cashiers, and many others have no one to serve and nothing to ring up when they work at home. Employers of such employees accordingly have a difficult decision to make when business is at an all-time low or they have been shut down. Most cannot afford to pay employees during this time period and hope employees will qualify for unemployment benefits. The question for these employers thus becomes–to fire, or not to fire. This is where a work furlough comes into play. A work furlough is essentially a temporary layoff that qualifies for unemployment benefits. Furloughs rose in popularity some years ago when businesses had to cut costs. Most employers knew employees who worked from paycheck to paycheck would suffer a financial hardship if the employees lost their jobs. Employers did not want to terminate employment. These employers wanted to minimize the negative impact, psychologically and monetarily, a termination brings, and the hard feelings an employee may carry following termination. Employers wanted employees who were already-trained to return to work at the end of a furlough, rather than having to start the hiring process from scratch. Work furloughs generally have a set beginning and end date, similar to the 15-day shut-down ordered in many cities. The employer does not pay the employee during the furlough. Employees, however, generally qualify for unemployment compensation benefits. Employers who want to maintain better relations should tell their employees to apply for unemployment benefits on the first day of the furlough. This ensures the employees will receive the maximum compensation possible. Even an employee who uses vacation time or personal time may qualify for unemployment benefits. Usually there is a one week waiting period before an employee is eligible to receive any unemployment benefits. Many states have benevolently waived this one week waiting period for job losses suffered due to the pandemic. In these states, employees will receive benefits beginning “day 1.” The employee will receive compensation during the second week and any later weeks during which the employee is not working. Any employee who files after the first week of the furlough must use the second furlough week as the waiting period. The employee, therefore, loses a week of unemployment compensation. Even if the furlough period is only one week in length, employees should file for benefits. This helps the employee if the employer is forced to extend a furlough or put employees on furlough again later that same year. The one-week waiting period only applies to the first week when the employee did not work during the first furlough. The employee does not have to wait yet another week to receive benefits (compensation) during any furloughs that take place within 12 months of the first furlough. While furloughs are an excellent option for employers to consider, any employer considering termination or a furlough must carefully consider all state and local laws; the state emergency declarations and laws issued, given the pandemic; and federal law, including any relief package or whether the number of employees furloughed triggers obligations under WARN.

As you are aware from various updates this past weekend, certain cities have closed their schools (bars and restaurants, etc.), and are encouraging or requiring employees to work from home. People who return from risky travel or learn they may have been exposed are self-quarantining. These are certainly signs that many more employees will be working from home or telecommuting regardless of where they are located. A few tips you may send to employees. We hope they may help you and your employees prepare for and, ultimately, work from home for a period of time. Take home, each day, everything you need for telecommuting in case (1) we move to a “telecommuting” or a “work at home” recommended or required policy, (2) your child’s school is closed, (3) you wake up feeling ill (in any way), (4) a loved one wakes up feeling ill and needs your help or you prefer to self-quarantine, (5) you are in a high-risk health category, or (6) you decide at some point you prefer to telecommute. Consider whether meetings of any size, internal or external, might or should be postponed or handled by telephone or videoconference (rather than in person). Use the terms “working from home,” “telework,” or “telecommuting,” rather than we closed our office. The office may be physically empty or mostly empty, depending on what is needed, but “we closed our office” sounds like we are not working. We want to avoid giving anyone that impression. Treat your day like a normal work day to the greatest extent possible. Get up at your regular time, shower, get dressed for work, set up a desk or office area for yourself if you do not already have such an area. End work when you normally stop. Contrary to popular belief, individuals who telecommute often over-work in the beginning, which leads to burn out. Try to remove or limit distractions, including children, puppies, laundry, etc. Having a specified desk / work area, especially one where you can shut a door, will help set boundaries around working time and “no distractions.” If two parents or adults are working from home, work together to share all responsibilities. Try to schedule your most mentally intensive work during, for example, the early morning before anyone else is awake, during your child’s nap time, when your kids are engaged doing something, etc. Synchronize breaks with your children’s or pets’ schedule. (We all know some of this is not as easy as it sounds, especially when children are involved.) Make sure your working area is safe, clean, comfortable (in an ergonomically correct manner), well ventilated, and well-lit. You should have enough electrical outlets to safely power all equipment needed with all wires and electrical cords secured and out of the way. Prepare in advance for periods during which there may be a lack of focus or motivation. This is natural when the energy around your work is not as high as it might be when numerous others are working around you. Use one of many productivity methods available, including the Pomodoro Technique, or my favorite – Eating Live Frogs: Do the Worst Thing First, to help maintain periods of focus and streamline productivity. Anticipate technical problems, which are a huge hassle in the office but even more frustrating when out of the office. Make sure you have a good WiFi or MiFi connection (or both available). Call the Help Desk as often as needed. Arrange for your equipment to be swapped out if the problem is severe. Beware of feelings of isolation or loneliness. The statistics support that people who telecommute tend to lose their sense of community, belonging, etc. Reach out to co-workers in a meaningful, professional AND social way via phone, FaceTime, Zoom, etc. Send funny stories, jokes. In other words, stay in touch as human beings. Working from home or telecommuting is not an ideal situation. We accordingly hope this is a SHORT experience for each of you and your employees. Please do not hesitate to reach out to your Polsinelli contacts if you have additional questions or issues.

In spite of all the controversy swirling around Judge Brett Kavanaugh’s nomination to take Justice Kennedy's seat, it’s business as usual at the United States Supreme Court as the Justices kicked off a new term on October 1.  Does the ADEA’s 20 employee threshold apply to public employers? The Justices heard argument their first day back in Mount Lemmon Fire District v. Guido, U.S., No. 17-587. The Court will determine whether the Age Discrimination in Employment Act’s (“ADEA”) 20 employee threshold applies to public employers in the same way it does private employers.  In that case, laid-off firefighters brought an ADEA claim against the District, which argued it was not subject to ADEA coverage because it had fewer than 20 employees. The U.S. Ninth Circuit Court of Appeals held otherwise, finding the ADEA protects all public employees regardless of employer size. Court to consider scope of FAA and issues of arbitrability Arbitration agreements make a repeat appearance on the Court’s docket this term. In Lamps Plus Inc. v. Varela, U.S., No. 17-988, the Court will review whether an arbitration agreement stating that "arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings" effectively waived an employee's right to bring a class-action claim. The Ninth Circuit held the arbitration agreement was valid, but further held that language in the agreement should be construed against the drafter based on California law such that the employee could bring class action claims in arbitration. Lamps Plus appealed the Ninth Circuit’s decision, arguing that the agreement’s failure to mention class arbitration should be interpreted under the Federal Arbitration Act (FAA) and the Court’s precedent to require arbitration on an individual basis only. In New Prime Inc. v. Oliveira, U.S., No. 17-340, the Court will assess whether arbitration agreements may be enforced against long-haul truck drivers classified as independent contractors based on an exception to the FAA for "contracts of employment" with workers who engage in interstate commerce, such as long-haul truck drivers. The trucking company asserts that it may enforce the agreements because the drivers are not employees. Further, while some arbitration agreements delegate authority to decide such threshold questions, the Court will consider whether a court may keep and decide issues of arbitrability if they are “clear,” in an effort to preserve party resources. Finally, in Henry Schein Inc. v. Archer and White Sales Inc., U.S. No. 17-1272, the Court will determine whether the FAA permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the claim that the case should be arbitrated is "wholly groundless." If there is one thing employers may already take away from the Court’s new term, it is the repeat lesson that arbitration agreements must be drafted carefully and clearly. Indeed, all arbitration agreements should be thoroughly reviewed by legal counsel. In addition, employers may also consider asking a handful of employees to review draft agreements in advance of dissemination to help ensure their employees will understand the language and process set forth in the agreement.Employers with questions regarding the breadth, scope, or enforceability of their arbitration agreements would do well to consult competent counsel.

Employers must be aware of and comply with a host of state and federal laws related to employee pay.  Below, we detail five common mistakes that employers make, and how to avoid them. 1. “Exempt” Employees Misclassified. Employees must meet both a salary basis and duties test to be properly classified as “exempt” from Fair Labor Standards Act (“FLSA”) overtime pay requirements. The U.S. Department of Labor (“DOL”) proposed to more than double the salary required to qualify as “exempt” in 2016.  A decision blocking the DOL’s new rule from going into effect is currently on appeal.  The DOL recently advised that, while it is reconsidering the threshold salary level for “exempt” employees, it continues to assert its right to set a minimum level.  Employers should be prepared for the DOL’s right to regulate pay to be upheld, and must also remember the “duties” test is alive and well.  Wages, penalties, and attorneys’ fees associated with misclassification are typically significant. With an estimated 8 million employees incorrectly classified as “exempt,” neither the DOL nor private attorneys have slowed their attacks.  Employers should audit (pay attention to) the duties their exempt employees actually perform, as well as all descriptions of the employees’ duties to ensure employees are properly classified.   2. Independent Contractors Misclassified.  Employers may only classify a given worker as an “independent contractor” if the relationship between the employer and the worker in question satisfies certain tests, such as the Internal Revenue Service’s (“IRS”) “Right to Control” test, among others. The IRS, the DOL, the National Labor Relations Board, state governments, and plaintiff attorneys are highly likely to continue their high priority challenges on the misclassification of W-2 employees as independent contractors. Wages, fines, penalties, back taxes, benefit payments, and attorneys’ fees add up quickly, and more often than not, reach the six figure range.  Employers should audit (pay attention to) all independent contractor relationships in light of their employee benefit plans and all applicable laws to ensure workers are properly classified.   3. Rounding Policies. Many employers round their employees’ clock in and out times to the nearest five, ten, or fifteen minute interval, and pay employees based on the rounded time.  Rounding policies, in and of themselves, are not unlawful.  Employee attorneys continue to file suit against employers who round clock in and out times.  These attorneys point to restrictive clock in and out policies, tardiness policies, unpaid pre- or post-shift meetings, disciplinary policies, and unpaid pre- or post-shift work in an effort to prove the employer’s practice of rounding time did not equally benefit the employer and employee over time, as required by law. Employers that round time need to pay attention to their policies, create clear communications in relation to work and personal time, and ensure whether rounding benefits the employer and employee equally over time. 4. Timekeeping Auto-deductions. Employers are not required to pay employees for non-working time. Accordingly, some employers automatically deduct time when they know an employee is not working. Employee meals continue to be the most frequent period of time subject to auto-deduction.  Employees challenge such deductions when meal periods are skipped or interrupted with no change to the auto-deduction (and, accordingly, no change to the employee’s pay).  Some employers auto-deduct other periods of time at the beginning or end of a shift as well.  It is critical that employers pay attention to the language in their auto-deduct policies and provide employees with a clear and simple mechanism to override any improper deductions. 5.  Required Notices. Congress and the DOL require that employers provide employees with certain notices regarding certain aspects of their pay. Such required notices range from posters (e.g., WH 1088, “EMPLOYEE RIGHTS UNDER THE FAIR LABOR STANDARDS ACT”), to tip credit notices and other designations when employers pay their tipped employees a cash wage that is lower than the minimum wage.  Many states also have similar, specific notice or written agreement requirements. For example, specific, written agreements are required when California employees are paid commissions.  In some circumstances, employees who are properly paid, regardless of whether a notice is given, may bring claims for damages or penalties.  Employers should pay attention to (audit) the notices, forms, and designations required for each type of payment used with employees, including the date of the most recent notice, its contents, and whether new notices need to be issued and new pay designations need to be added.

On May 8, 2017, the Missouri House gave final approval to a much anticipated, heavily debated, and still highly controversial bill that will significantly modify the law applicable to “unlawful employment practices” in the state. Governor Eric Greitens has until July 14, 2017, to sign or veto the bill. So long as he does not veto, the bill will become law on August 28, 2017. Among other things, if the bill becomes law, employers may expect: More stringent proof in discrimination cases:The amendments require employees who allege employment discrimination (or retaliation) under the Missouri Human Rights Act (MHRA) to prove unlawful discrimination or retaliation was “the motivating factor” in a complained-about adverse employment action. To qualify as “the motivating factor,” unlawful discrimination or retaliation must have “actually played a role” in and “had a determinative influence” on the adverse action. This change is a significant departure from the current requirement that plaintiffs need merely prove unlawful discrimination or retaliation “contributed” to an employer’s decision. No individual liability: Individual supervisors and other employees will no longer be personally at risk for liability in a discrimination or retaliation case under the new law. A "Business Judgment Rule” jury instruction:Jurors sometimes want to substitute their judgment for an employer’s. The new law’s requirement that courts give jurors a “business judgment rule” instruction counters this tendency, mandating that jurors not return a verdict in favor of an employee simply because the jurors disagree with an employer’s judgment in making an employment decision or believe the employer’s decision was harsh or unreasonable. Reduced damage awards:The MHRA currently allows juries to award a plaintiff uncapped emotional distress damages and up to “five times the net judgment” in punitive damages. While a jury might award a moderate amount in damages to a plaintiff-employee, Missouri courts interpreted “net judgment” to include the frequently higher amount courts awarded in attorneys’ fees. The new law continues to allow employees to recover back pay, plus interest on back pay, but limits the calculation for future pecuniary losses, emotional distress, and punitive damages to: $50,000 for employers with 6 to 100 employees; $100,000 for employers with 101 to 200 employees; $200,000 for employers with 201 to 500 employees; or $500,000 for employers with 501 or more employees. Codified whistleblower protections for employees:Codifying, in part, existing common law exceptions to the employment-at-will doctrine, the amendments create a “Whistleblower’s Protection Act,” which makes it unlawful for employers to fire certain employees who, for example, report their employer’s unlawful acts or serious misconduct or refuse to carry out illegal employer directives. The Act allows successful plaintiffs to recover only limited actual damages, plus an additional liquidated damages award equal to actual damages provided the plaintiff proves an employer’s conduct was outrageous. Finally, the bill specifically identifies the MHRA, Missouri Workers’ Compensation Law, and new Whistleblower’s Protection Act as the exclusive remedies for all claims of unlawful employment practices in Missouri, effectively stopping Missouri courts from creating new employment-related causes of action.

Some very loud whistles have been blowing across corporate America since 2011 – whistles valued at $107 million, in fact. The United States Securities and Exchange Commission announced on August 30, 2016, that since its whistleblower program began in 2011, they have awarded more than $107 million total to 33 individuals who voluntarily provided the SEC with original and useful information that led to a successful enforcement action. Whistleblower awards can range from 10 percent to 30 percent of the money collected when the SEC’s monetary sanctions in a matter exceed $1 million.     The SEC encourages employees to report suspected wrongdoing, because they, according to Acting Chief Jane Norberg, “are in unique positions behind-the-scenes to unravel complex or deeply buried wrongdoing.” And, last year alone, employees responded by providing nearly 4,000 tips to the agency. With this kind of incentive from the SEC and other government agencies, as well as a growing number of successes in whistleblower lawsuits, it is more important than ever for companies to get advice on a regular basis from a multi-faceted team, including corporate, employment, and white collar crime attorneys. Moreover, companies must be strategic and proactive in their approach to implementing an effective whistleblower protection and anti-retaliation system.     Key elements of an effective whistleblower protection and anti-retaliation system include: Clear and visible leadership commitment and accountability. This is truly the most important piece of the puzzle. Without sincere support from the top, no internal whistleblower program can succeed. The creation of a true “speak-up” organizational culture focused on prevention, including encouraging employees to raise all suspicions and issues quickly and insuring the fair resolution of such issues. Independent, protected resolution systems for employees and third-parties who believe they are experiencing retaliation as a result of raising concerns.   Specific training to educate all employees about their rights and available protections (including both internal and external programs). Specific training for managers who may receive complaints or information from employees, requiring the manager to be considerate of the employee making the report, to be diligent, and, most importantly, to act on the information with no corporate tolerance of the “just telling me as a friend, not as a manager” excuse. Internal monitoring and measurement of corporate compliance efforts and the effectiveness of the speak-up and non-retaliation culture, without contributing to the suppression of employee reporting. Independent auditing to determine if the whistleblower protection and anti-retaliation system is actually working.