Employment and Labor Law

We act on both sides of the employment relationship: for employees who have been treated unlawfully, and for employers seeking to conduct themselves so that the question never arises. Acting on both sides is instructive. It is difficult to advise an employer well without having seen how these claims are actually brought.

Employment at will, and its limits

Missouri is an at will employment state. An employer may ordinarily end an employment relationship at any time, with or without notice, and without giving a reason. Employees frequently assume that an unfair dismissal is for that reason unlawful. It generally is not.

The limits on that rule are what matter. An employer may not dismiss an employee because of a protected characteristic. It may not dismiss in retaliation for conduct the law protects, such as making a complaint of discrimination, reporting a suspected violation of law, filing a workers compensation claim, or taking leave to which the employee is entitled. It may not dismiss in breach of a contract where one exists, whether written or arising from an employee handbook.

The practical question in most matters is therefore not whether the treatment was unfair but whether it fell within one of those exceptions. That question is answered by evidence: how comparable employees were treated, what reasons were given at the time and whether they have since changed, and what the contemporaneous documents record.

Discrimination, harassment and retaliation

Claims of discrimination and harassment may arise under federal law and under the Missouri Human Rights Act, and the two schemes differ in the employers they cover, the standards they apply, the remedies available and the deadlines for bringing a claim.

The deadlines are strict and they are shorter than most people expect. A claim ordinarily requires a charge to be filed with an administrative agency before proceedings may be brought at all, and failing to file within the period forfeits the claim irrespective of its merits. This is the most common way in which a good claim is lost. If you believe you have been treated unlawfully, take advice promptly rather than waiting to see whether matters improve.

Retaliation claims deserve particular mention because they are frequently stronger than the underlying complaint. An employee whose discrimination complaint fails may still succeed on a retaliation claim if the employer's response to the complaint was adverse, and that sequence is easier to prove because the timing is documented.

Wages, hours and classification

Wage and hour claims turn on classification. Whether an employee is exempt from overtime depends on their actual duties rather than their job title or the fact that they are paid a salary. Misclassification is widespread, and it is frequently inadvertent rather than deliberate.

The same applies to the distinction between an employee and an independent contractor. A worker treated as a contractor who in substance functions as an employee may be entitled to overtime, to benefits and to protections that were not provided, and the employer may face liability for unpaid tax as well.

We bring and defend claims for unpaid overtime, unpaid final wages, unlawful deductions and off the clock work, and we advise employers on classification before a claim discloses that it was wrong.

Restrictive covenants and severance

Missouri courts will enforce a non competition covenant that protects a legitimate interest, such as trade secrets or customer relationships, and that is reasonable in duration, geography and scope of activity. A covenant drafted more broadly than the interest it protects risks being unenforceable, which serves neither party.

Employees presented with such an agreement should take advice before signing, and again before leaving to join a competitor. Employers should have their covenants reviewed, because one drafted to the widest terms imaginable is frequently worth less in practice than a narrower one that a court will uphold.

On severance, an employee offered an agreement is being asked to release claims in exchange for payment, and the value of that release depends on what claims exist. Do not sign before finding out. The terms are more often negotiable than employees assume, particularly where the employer wishes to secure a release quickly.

Advice to employers

Most employment claims are avoidable, and they are avoided at the level of ordinary management practice rather than by litigation strategy. Consistent documentation of performance concerns as they occur. Handbooks that are current and actually followed. Job descriptions reflecting the work performed. Investigation of complaints promptly and by someone competent to conduct it. Classification reviewed rather than assumed.

We advise employers on those matters, prepare and review the documents they depend upon, and defend claims where they are brought. The recurring lesson from the claims side is that employers rarely lose because they lacked a good reason. They lose because the reason was not documented at the time, and the account offered afterwards was inconsistent with the record.