Tag Archives: Missouri employers

Missouri Employers Now Required To Provide Unpaid Leave To Victims Of Domestic Or Sexual Violence

Contributed by Brian Wacker, September 24, 2021

Words ‘Leave of Absence’ on white paper

As a part of Missouri’s new Victims Economic Safety and Security Act (VESSA), employers in the state with at least 20 employees must now provide unpaid leave to employees who are victims of domestic or sexual violence, or who have family or household members who are victims of the same.  Effective August 28, 2021, all covered employers are required to notify employees of their right to unpaid leave under the law by or before October 27, 2021.  The Missouri Department of Labor has published a poster which, if prominently posted, will meet this requirement. 

The new mandate is designed to provide domestic and sexual abuse victims, and their families, the opportunity to:

  • Seek medical attention for, or recover from, physical, or psychological injuries;
  • Obtain victim services;
  • Obtain counseling;
  • Participate in safety planning;
  • Relocate, temporarily, or permanently;
  • Take actions to increase safety for themselves or family members; and/or
  • Seek legal assistance.

Employees seeking such leave must provide their employer at least 48 hours’ advance written notice, unless doing so is not practicable under the circumstances.  To determine if a requesting employee is eligible for VESSA leave, an employer may require the employee to provide certification that either the employee or his/her family or household member is the domestic or sexual violence victim seeking the type of assistance described above.  This certification can come by way of:

  • Written documentation from a victims services organization, attorney, clergy member, or medical professional;
  • Police or court records; or
  • Other corroborating evidence.

Employees are required to provide such certification within a reasonable period of making the request for leave.  However, when an unscheduled absence occurs, an employer cannot take adverse action against an employee when, upon the employer’s request , the employee does provide this information within a reasonable time.

Again, VESSA only applies to employers with 20 or more employees and then dictates that the amount of leave available to eligible employees is based on the number of the employer’s employees:

  • 0-19 employees: no leave required
  • 20-49 employees: 1 week of unpaid leave required per year
  • 50+ employees: 2 weeks of unpaid leave required per year

If eligible, an employee may take this unpaid leave intermittently or on a reduced work schedule.  Any eligible employee must be returned to the same, or similarly equivalent, position upon return to work.  Finally, if the employee taking leave is covered by an employer’s group health plan, the employee’s (and any covered family or household member’s) coverage must be maintained during the eligible leave.  However, under certain circumstances, the premiums paid by the employer during the leave may be recovered from the employee if  they fail to return to work once the leave period has expired.            

The bottom line is that this is a new unpaid leave mandate for nearly all Missouri employers.  Employers would be well advised to post the VESSA notice as soon as possible and update their employee handbooks to reflect these new requirements.

Missouri Appellate Court Declines To Recognize Cause Of Action For Negligent Recommendation To A Prospective Employer

Contributed by Brian Wacker, June 12, 2019

16306823 – 3d illustration of scales of justice and gavel on orange background

There is no duty of care to “not make a negligent recommendation to a prospective employer” in Missouri. That is the upshot of an April, 2019 ruling out of Missouri’s Southern District Appellate Court, Doe v. Ozark Christian College, which is sure to have Missouri employers and human resource professionals breathing a collective sigh of relief – at least for now.

In Ozark, the defendant is a religious college. The school educates students in ministry and from time to time makes recommendations to prospective employers – i.e., churches – regarding placement of those students in open positions. The college has no affiliation with the churches who hire students the school recommends. The plaintiff in Ozark claimed he was sexually abused by a minister at his church from 2006 to 2010. The minister had been hired by the church upon the college’s positive recommendation of him in 2004. The plaintiff filed suit against the college, alleging that it owed a duty to not make a negligent recommendation to the church about the employee who allegedly abused him years later. Even though no such duty had ever been recognized under Missouri law, the plaintiff invited the court to recognize a new cause of action based on policy arguments and the fact that other states (specifically, California and Texas) had arguably recognized such claims.

Luckily for employers across the state, the Southern District affirmed the lower court’s summary judgment and declined the plaintiff’s invitation to find such a duty exists. 

First, the court rejected the notion that the college somehow assumed a duty under Missouri law in making a “gratuitous provision of an employment recommendation.”  The court noted that the plaintiff did not even make such an allegation; instead, all he had alleged was that after graduation, the college assisted and guided the employee at various churches from 1998 to 2004. This, according to the court, did not support even an inference that the college intended to benefit the employer church when it gave the recommendation. As such, there was no such duty under existing Missouri law.

Second, and perhaps more consequential for Missouri employers, the court rejected the plaintiff’s policy-based arguments to create a new cause of action out of thin air. While the court noted that California and Texas arguably recognize the alleged duty the plaintiff was pushing, a majority of other states, including Kentucky, Indiana, Illinois and New York, have rejected it.  

The court sided with the latter states and declined to recognize this new cause of action.  However, the court appeared to couch its decision, at least in part, in its role as “error-correcting” court, as opposed to the Missouri Supreme Court, which is the “law-declaring” court. The plaintiff apparently read this language as an invitation because on May 2, 2019, he filed an application to transfer the matter to the Supreme Court for further review.

Also, it is important to note that in Ozark, there was no indication that the college had any knowledge or indication that the employee minister may sexually abuse someone when it made the recommendation. (The only allegation was that the employee subsequently abused the student.)  If that had been the case, the court could easily have gone the other way.  States such as Missouri’s neighbor Illinois have recognized a duty in making recommendations, where there is prior knowledge of bad acts or conduct, in this very type of circumstance.  See e.g., Doe v. McLean County Unit District No. 5, 973 N.E.2d 880 (Ill. 2012)

Obviously, how the Supreme Court rules will have a major impact on employers and human resource professionals in Missouri going forward. Potential exposure to liability for the future acts of applicants for whom someone simply responds to a request for recommendation could have a significant, chilling and stifling effect. What former employer would want to go out on a limb to make a recommendation for an applicant if they can be potentially liable based on that applicant’s potential future conduct? What incentive would they have to even respond?

And this is to say nothing of the harmful effect it could have on prospective employers, who would likely be deprived of otherwise helpful information about applicants in the hiring process. If recommendation requests go unanswered, the hiring employer has less useful information about the applicant to make its hiring and personnel decisions.

In short, a recognized cause of action for negligent recommendations could be bad news for Missouri employers and employees alike.

This blog will monitor the Supreme Court’s review and update when a final determination is made.