Missouri lawmakers made significant changes to workers compensation laws this year.  The biggest change involves retaliation against injured workers. Now, lawmakers made it easier for Missouri employers to retaliate against injured workers who bring work comp claims.

Beginning August 28, 2017, the standard for retaliation claims changes from “contributing factor” to “motivating factor.”  Crucially, this single word makes a huge difference to an injured worker fired for exerting his rights.

The Contributing Factor Standard.

Missouri law forbids employers from firing injured workers that file workers compensation claims.  Importantly, Missouri Statute  §287.780 allows injured workers to assert their rights without the fear of retaliation.  Work Comp lawyers routinely would fight in Court over how this law applied.  However, in Templemire v. W&M Welding, Inc., the Missouri Supreme Court firmly established that an employee only had to show that the workers’ compensation claim was a “contributing factor” in their employer’s decision to fire or demote them. This decision overturned the old “exclusive cause” test, making it much harder for retaliation against injured workers.

Basically, injured workers enjoyed greater protection.  They only had to prove that their work comp claim played a small part in getting fired to stop the retaliation.  Now, under Governor Eric Greitens, that protection has changed.

The Motivating Factor Standard

The Missouri Senate decided that the Templemire decision and the contributing factor standard did not give employers enough control over their employees.  In Senate Bill 113 and Senate Bill 66, Missouri lawmakers amended the wording of  §287.780,  changing the word “contributing” to “motivating.”  This seems like a very small difference, but the impact will be huge.  Let’s look at an example:

A worker breaks his hand at work and files a workers compensation claim.  Rather than pay TTD and have the injured worker recover at home, the employer finds a different position for the employee in the office sorting paperwork.  Between the doctor’s appointments, catching the bus (because he can’t drive with one hand), and only having one hand to file paperwork, the injured worker is not very productive. Under the contributing factor standard the employer cannot fire the injured worker. Also the employer cannot lower his wages or dock pay for lower performance.

Under the new motivating factor standard, the employer could terminate the injured worker.  If questioned, the employer did not fire the worker because of the work comp claim.  Instead, the employer was “motivated” by the lowered performance, late and missing attendance, and the financial impact on the company.  The “motivation” allows the employer to conveniently ignore that all of the issues were a direct result of the workplace injury.   Missouri work comp lawyers across the State agree this is wrong and will make a huge impact on retaliation claims.

Notably, no one has tested whether the new law is Constitutional or challenged it at all.

When Does The New Standard Affect Retaliation Against Injured Workers?

August 28, 2017.

Missouri Law §1.130 states that all new laws take effect on August 28th of the year they were passed, unless the law specifically states a different start date.

What Standard Applies If I Was Hurt Before August 28, 2017?

Lawyers across Missouri are debating how the motivating factor change applies to pending cases.  Generally, a new law cannot be applied retroactively – i.e. to claims that are already pending. Missouri law also does not allow lawmakers to change the substantive rights of citizens in ongoing proceedings. See Statutes §1.170 – 180.  That means the big question is : when did the retaliation occur?

The workers compensation lawyers at the BiState Law Center conferred with lawyers across the State of Missouri and believe we have the answer.

• If you were hurt before August 28, 2017, either standard may apply.
• However, if the retaliation started before August 28, 2017, we will use the “contributing factor standard.”
• If the retaliation occurred after August 28, 2017, we will use the “motivating factor standard.”
• If you were hurt after August 28, 2017, we will always use the new “motivating factor standard.”

How Does The New Law Impact My Rights?

Under the new motivating factor standard, your employer has more flexibility to terminate you, demote you, or lower your wages after you file a workers compensation claim.  Basically, it is now easier for retaliation against injured workers in Missouri.

Injured Missouri workers are still entitled to the 3 Big Benefits of work comp: 1.) medial; 2.) paid recovery time; and 3.) a lump sum settlement.  However, using those benefits now comes with a greater risk of retaliation.

I have More Questions About Retaliation Against Injured Workers.

If you have questions about your Missouri Workers Compensation Claim, please call the work comp lawyers at the BiState Law Center.  We work every day to assert the rights of injured workers across Missouri.  We fight to protect those rights, and we’re happy to answer any question you have.

Call us at (888) 519-2215, chat with us online, or send us an e-mail. Hurt at Work? We Can Help.