To amend chapter 290, RSMo, by adding eleven new sections relating to rights and remedies with respect to wrongful discharge from employment.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI,

AS FOLLOWS:

Section A. Chapter 290, RSMo, is amended by adding thereto eleven new sections, to be known as sections 290.600, 290.603, 290.606, 290.609, 290.612, 290.615, 290.618, 290.621, 290.624, 290.627 and 290.630, to read as follows:

290.600. 1. Sections 290.600 to 290.630 of this act may be cited as the "Wrongful Discharge From Employment Act".

2. As used in sections 290.600 to 290.630, the following terms shall mean:

(1) "Director", the director of the department of labor and industrial relations or his or her authorized representative;

(2) "Employee", an individual who works for hire, including an individual employed in a supervisory, managerial, or confidential position, but not an independent contractor;

(3) "Employer", a person that has employed five or more employees for each working day in each of twenty or more calendar weeks in the two-year period next preceding a termination or an employee's filing of a complaint pursuant to subsection 3 of section 290.612, excluding a parent, spouse, child, or other member of the employer's immediate family or of the immediate family of an individual having a controlling interest in the employer;

(4) "Fringe benefit", vacation leave, sick leave, medical insurance plan, disability, insurance plan, life insurance plan, pension benefit plan, or other benefit of economic value to the extent the leave, plan, or benefit is paid for by the employer;

(5) "Good cause", either of the following:

(a) A reasonable basis related to an individual employee for termination of the employee's employment in view of relevant factors and circumstances, which may include the employee's duties, responsibilities, conduct on the job or otherwise, job performance, and employment record; or

(b) The exercise of business judgment in good faith by the employer, including setting its economic or institutional goals and determining methods to achieve those goals, organizing or reorganizing operations, discontinuing, consolidating, or divesting operations or positions or parts of operations or positions, determining the size of its work force and the nature of the positions filled by its work force, and determining and changing standards of performance for positions;

(6) "Good faith", honesty in fact;

(7) "Pay", when used as noun, means hourly wages or periodic salary, including tips, regularly paid and nondiscretionary commissions and bonuses, and regularly paid overtime, but not fringe benefits;

(8) "Person", an individual, corporation, business trust, estate, trust, partnership, association, joint venture, or any other legal or commercial entity;

(9) "Termination", any of the following:

(a) A dismissal, including that resulting from the elimination of a position, of an employee by an employer;

(b) A layoff or suspension of an employee by an employer for more than two consecutive months; or

(c) A quitting of employment or a retirement by an employee induced by an act or omission of the employer, after notice to the employer of the act or omission without appropriate relief by the employer, so intolerable that under the circumstances a reasonable individual would quit or retire.

290.603. 1. Sections 290.600 to 290.630 apply only to a termination that occurs after the effective date of such sections.

2. Sections 290.600 to 290.630 do not apply to a termination at the expiration of an express oral or written agreement of employment for a specified duration, which was valid, subsisting, and in effect on the effective date of such sections.

3. Except as provided in subsection 5 of this section, sections 290.600 to 290.630 displace and extinguish all common-law rights and claims of a terminated employee against the employer, its officers, directors, and employees, which are based on the termination or on acts taken or statements made that are reasonably necessary to initiate or effect the termination if the employee's termination requires good cause under subsection 1 of section 290.606, is subject to an agreement for severance pay under subsection 3 of section 290.609, or is permitted by the expiration of an agreement for a specified duration under subsection 4 of section 290.609.

4. An employee whose termination is not subject to subsection 1 of section 290.606 or subsection 4 of section 290.609 and who is not a party to an agreement under subsection 3 of section 290.609 retains all common-law rights and claims.

5. Sections 290.600 to 290.630 do not displace or extinguish rights or claims of a terminated employee against an employer arising under state or federal statutes or administrative rules or regulations having the force of law or local ordinances valid under state law, a collective bargaining agreement between an employer and a labor organization, or an express oral or written agreement relating to employment which does not violate sections 290.600 to 290.630. Those rights and claims may not be asserted under sections 290.600 to 290.630, except as otherwise provided therein. The existence or adjudication of those rights or claims does not limit the employee's rights or claims under sections 290.600 to 290.630, except as stated in subsection 4 of section 290.618.

290.606. 1. Unless otherwise provided in an agreement for severance pay under subsection 5 of section 290.609 or for a specified duration under subsection 4 of section 290.609, an employer may not terminate the employment of an employee without good cause.

2. Subsection 1 of this section applies only to an employee who has been employed by the same employer for a total period of one year or more and has worked for the employer for at least five hundred twenty hours during the twenty-six weeks next preceding the termination. A layoff or other break in service is not counted in determining whether an employee's period of employment totals one year, but the employee is considered to be employed during paid vacations and other authorized leaves. If an employee is rehired after a break in service exceeding one year, not counting absences due to labor disputes or authorized leaves, the employee is considered to be newly hired. The twenty-six-week period for purposes of this subsection does not include any week during which the employee was absent because of layoffs of one year or less, paid vacations, authorized leaves, or labor disputes.

290.609. 1. A right of an employee under sections 290.600 to 290.630 may not be waived by agreement except as provided in this section.

2. By express written agreement, an employer and an employee may provide that the employee's failure to meet specified business related standards of performance or the employee's commission or omission of specified business related acts will constitute good cause for termination in proceedings under sections 290.600 to 290.630. Those standards or prohibitions are effective only if they have been consistently enforced and they have not been applied to a particular employee in a disparate manner without justification. If the agreement authorizes changes by the employer in the standards or prohibitions, the changes must be clearly communicated to the employee.

3. By express written agreement, an employer and an employee may mutually waive the requirement of good cause for termination, if the employer agrees that upon the termination of the employee for any reason other than willful misconduct of the employee, the employer will provide severance pay in an amount equal to at least one month's pay for each period of employment totaling one year, up to a maximum total payment equal to thirty months' pay at the employee's rate of pay in effect immediately before the termination. The employer shall make the payment in a lump sum or in a series of monthly installments, none of which may be less than one month's pay plus interest on the principal balance. The lump sum payment must be made or payment of the monthly installments must begin within thirty days after the employee's termination. An agreement under this subsection constitutes a waiver by the employer and the employee of the right to civil trial, including jury trial, concerning disputes over the nature of the termination and the employee's entitlement to severance pay, and constitutes a stipulation by the parties that those disputes will be subject to the procedures and remedies of sections 290.600 to 290.630.

4. The requirement of good cause for termination does not apply to the termination of an employee at the expiration of an express oral or written agreement of employment for a specified duration related to the completion of a specified task, project, undertaking, or assignment. If the employment continues after the expiration of the agreement, section 290.606 applies to its termination unless the parties enter into a new express oral or written agreement under this subsection. The period of employment under an agreement described in this subsection counts toward the minimum periods of employment required by subsection 2 of section 290.606.

5. An employer may provide substantive and procedural rights in addition to those provided by sections 290.600 to 290.630, either to one or more specific employees by express oral or written agreement, or to employees generally by a written personnel policy or statement, and may provide that those rights are enforceable under the procedures of sections 290.600 to 290.630.

6. An employing person and an employee not otherwise subject to sections 290.600 to 290.630 may become subject to said provisions to the extent provided by express written agreement, in which case the employing person is deemed to be an employer.

7. An agreement between an employer and an employee subject to sections 290.600 to 290.630 imposes a duty of good faith in its formation, performance, and enforcement.

8. By express written agreement, an employer and an employee may settle at any time a claim arising under sections 290.600 to 290.630.

9. By express written agreement before or after a dispute or claim arises under sections 290.600 to 290.630, an employer and an employee may agree to private arbitration or other alternative dispute resolution procedure for resolving the dispute or claim.

10. By express written agreement after a dispute or claim arises under sections 290.600 to 290.630, an employer and an employee may agree to judicial resolution of the dispute or claim.

11. The substantive provisions of sections 290.600 to 290.630 apply under an agreement authorized by subsections 9 and 10 of this section.

290.612. 1. An employee whose employment is terminated may file a complaint and demand for arbitration under sections 290.600 to 290.630 with the director not later than one hundred eighty days after the effective date of the termination, the date of the breach of an agreement for severance pay under subsection 3 of section 290.609, or the date the employee learns or should have learned of the facts forming the basis of the claim, whichever is latest. The time for filing is suspended while the employee is pursuing the employer's internal remedies and has not been notified in writing by the employer that the internal procedures have been concluded. Resort to an employer's internal procedures is not a condition for filing a complaint under sections 290.600 to 290.630.

2. Except when an employee quits, an employer, within ten business days after a termination, shall mail or deliver to the terminated employee a written statement of the reasons for the termination and a copy of sections 290.600 to 290.630 or a summary approved by the director.

3. An employer may file a complaint and demand for arbitration under sections 290.600 to 290.630 with the director to determine whether there is good cause for the termination of a named employee. At least fifteen business days before filing, the employer shall mail or deliver to the employee a written statement of the employer's intention to file and the factors alleged to constitute good cause for a termination.

4. The director shall promptly mail or deliver to the respondent a copy of the complaint and demand for arbitration. Within twenty-one days after receipt of a complaint, the respondent must file an answer with the director and mail a copy of the answer to the complainant. The answer of a respondent employer must include a copy of the statement of the reasons for the termination furnished the employee.

5. When a complaint is filed, a complainant employee or employer shall pay a filing fee to the director in the amount of fifty dollars. The director may waive or defer payment of the filing fee upon a showing of the complainant employee's indigency.

290.615. 1. Except as otherwise provided in sections 290.600 to 290.630, the Uniform Arbitration Act, sections 435.350 to 435.470, RSMo, applies to proceedings under sections 290.600 to 290.630 as if the parties had agreed to arbitrate under that statute. The director shall adopt procedural rules to regulate arbitration under sections 290.600 to 290.630. The Administrative Procedure Act, sections 536.010 to 536.150, RSMo, and other statutes of Missouri applicable to the procedures of state agencies do not apply to arbitration under sections 290.600 to 290.630.

2. The director shall adopt rules specifying the qualifications, method of selection, and appointment of arbitrators. An arbitrator serving under sections 290.600 to 290.630 exercises the authority of the state.

3. Subject to rules adopted by the director, all forms of discovery are available in the discretion of the arbitrator, who shall ensure there is no undue delay, expense, or inconvenience. Upon request, the employer shall provide the complainant or respondent employee a complete copy of the employee's personnel file.

4. A party may be represented in arbitration by an attorney or other person authorized under the laws of Missouri to represent an individual in arbitration.

5. A complainant employee has the burden of proving that a termination was without good cause or that an employer breached an agreement for severance pay under subsection 3 of section 290.609. A complainant employer has the burden of proving that there is good cause for a termination. In all arbitrations, the employer shall present its case first unless the employee alleges that a quitting or retirement was a termination.

6. If an employee establishes that a termination was motivated in part by impermissible grounds, the employer, to avoid liability, must establish by a preponderance of the evidence that it would have terminated the employment even in the absence of the impermissible grounds.

290.618. 1. Within thirty days after the close of an arbitration hearing or at a later time agreeable to the parties, the arbitrator shall mail or deliver to the parties a written award sustaining or dismissing the complaint, in whole or in part, and specifying appropriate remedies, if any.

2. An arbitrator may make one or more of the following awards for a termination in violation of sections 290.600 to 290.630:

(1) Reinstatement to the position of employment the employee held when employment was terminated or, if that is impractical, to a comparable position;

(2) Full or partial backpay and reimbursement for lost fringe benefits, with interest, reduced by interim earnings from employment elsewhere, benefits received, and amounts that could have been received with reasonable diligence;

(3) If reinstatement is not awarded, a lump sum severance payment at the employee's rate of pay in effect before the termination, for a period not exceeding thirty-six months after the date of the award, together with the value of fringe benefits lost during that period, reduced by likely earnings and benefits from employment elsewhere, and taking into account such equitable considerations as the employee's length of service with the employer and the reasons for the termination; and

(4) Reasonable attorney's fees and costs.

3. An arbitrator may make either or both of the following awards for a violation of an agreement for severance pay under subsection 3 of section 290.609:

(1) Enforcement of the severance pay and other applicable provisions of the agreement, with interest; and

(2) Reasonable attorney's fees and costs.

4. An arbitrator may not make an award except as provided in subsections 2 and 3 of this section. The arbitrator may not award damages for pain and suffering, emotional distress, defamation, fraud, or other injury under the common law; punitive damages; compensatory damages; or any other monetary award. In making a monetary award under this section, the arbitrator shall reduce the award by the amount of any monetary award to the employee in another forum for the same conduct of the employer. In making an award, the arbitrator is subject to the rules of issue, fact, and judgment preclusion applicable in courts of record in Missouri.

5. If an arbitrator dismisses an employee's complaint and finds it frivolous, unreasonable, or without foundation, the arbitrator may award reasonable attorney's fees and costs to the prevailing employer.

6. An arbitrator may sustain an employer's complaint and make an award declaring that there is good cause for the termination of a named employee. If the arbitrator dismisses the employer's complaint, the arbitrator may award reasonable attorney's fees and costs to the prevailing employee.

290.621. 1. Either party to an arbitration may seek vacation, modification, or enforcement of the arbitrator's award in the circuit court for the county or city in which the termination occurred or in which the employee resides.

2. An application for vacation or modification must be filed within ninety days after issuance of the arbitrator's award. An application for enforcement may be filed at any time after issuance of the arbitrator's award.

3. The court may vacate or modify an arbitrator's award only if the court finds that:

(1) The award was procured by corruption, fraud, or other improper means;

(2) There was evident partiality by the arbitrator or misconduct prejudicing the rights of a party;

(3) The arbitrator exceeded the powers of an arbitrator;

(4) The arbitrator committed a prejudicial error of law; or

(5) Another ground exists for vacating the award under the Uniform Arbitration Act, sections 435.350 to 435.470, RSMo.

290.624. An employer shall post a copy of sections 290.600 to 290.630 or a summary approved by the director in a prominent place in the work area. An employer who violates this section is subject to a civil penalty not exceeding four hundred dollars. The attorney general may bring a civil action, on behalf of the state of Missouri, to impose and collect any civil penalty arising under this section.

290.627. An employer or other employing person may not directly or indirectly take adverse action in retaliation against an individual for filing a complaint, giving testimony, or otherwise lawfully participating in proceedings under sections 290.600 to 290.630, whether or not the individual is an employee having rights thereunder. An employer or other employing person who violates this section is liable to the individual subjected to the adverse action in retaliation for damage caused by the action, punitive damages when appropriate, and reasonable attorney's fees. A separate civil action may be brought to enforce this liability. The employer is also subject to applicable procedures and remedies provided by sections 290.600 to 290.630.

290.630. If any provision of sections 290.600 to 290.630 or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of sections 290.600 to 290.630 which can be given effect without the invalid provision or application, and to this end the provisions thereof are severable.