Sunday, April 15, 2012

Missouri Whistleblowing - Is Eight Trials in Eight Years Really a Flood of Litigation?

Whistleblowers are good for business, although many businesses do not seem to recognize this fact.  Whistleblowing is good not only for public safety, but also for businesses.  If there had been someone to blow the whistle on Bernie Madoff, think of the people and businesses that would be solvent, with their savings intact.  But, whistleblowing is hard and takes a lot of courage.  It takes a great deal of fortitude to report management wrongdoing for the betterment of society. People generally depend on their pay for food and shelter, and few people are willing to jeopardize their survival for the good of others.  

In fact, the Missouri Legislature, at he behest of the Chamber of Commerce and some individual businesses (primary among them is Enterprise Leasing Co. headquartered in St. Louis) are attempting to prevent courageous citizens from coming forward to report wrongdoing at the peril of society and businesses.  You see, some eight years ago, a man sued Enterprise because he had whistleblown about corporate business keeping and he was terminated from his employment. He sued and the jury gave the man a substantial verdict, which was upheld by the Court of Appeals. Ever since that verdict, Missouri businesses have lobbied the legislature to prevent people from whistleblowing.  The new bill makes it harder for concerned employees to come forward, it restricts to whom they should report illegal or suspected illegal activity, it prohibits lawsuits against government and employers operating with fewer employees.  The bill heavily restricts the award of punitive damages, although several years ago the Legislature passed laws require 1/2 of punitive damage awards to go to the State.  This law is purportedly to stem the tidal wave of whistleblower cases brought throughout this great state. 

The National Employers Lawyers in Missouri decided to look into this alleged wave of whistleblower litigation to see how many whistleblower cases have been tried in Missouri since the Enterprise case eight years ago.  And  in those eight years, across the entire great state of Missouri with millions of workers, there have been a total of eight trials with verdicts where a former employer claims he or she was fired for whistleblowing. Eight cases.  Two of the eight juries returned verdicts for the employer and the plaintiff got nothing. 

In at least one of the cases, one that I tried, the case involved an executive director of a professional organization who stole from the company and brought in pornography.  Under the proposed bill, that case could not have been brought because even though the employer was a professional association for physicians with insurance coverage, the company did not have enough employees under the proposed legislation.

Whistleblowers are rare because most people do not have the courage to criticize their bosses, no matter how much damage is done to the business or to the public. I read recently that Enterprise rental cars had been renting out cars subject to recalls.  Because of that, two women who rented a car from Enterprise were killed by the defect for which the cars had been recalled.  I suppose the families of those women are probably making wrongful death claims against Enterprise.  Wouldn't society and Enterprise have been better served if an employee had the courage to speak up and complain against this policy?  Two women would be alive, Enterprise would be free of the claims and bad publicity,and the world would have been better served.

We have so few employees willing to come forward and help the businesses they work for by pointing out bad conduct.  Do we really want it to be harder?  Shouldn't we promote whistleblowing?  Isn't that just the right thing to do?

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