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Workers' compensation retaliation: exclusive causation no more!
By Molly Batsch on April 25, 2014 at 1:38 PM

WorkersCompIn a decision reversing 30 years of precedent, the Missouri Supreme Court recently abandoned the “exclusive causation” standard previously applied to workers’ compensation retaliation claims in favor of the considerably more lenient “contributing factor” standard. See Templemire v. W & M Welding, Inc., SC93132, 2014 WL 1464574 (Mo. Apr. 15, 2014) (en banc).

What does this decision mean for employers? 

Prior to the decision, plaintiffs claiming workers’ compensation retaliation had to prove that their filing of a workers’ compensation claim (or exercise of another right protected by the Missouri Workers’ Compensation Act) was the “sole” or “exclusive” reason for the alleged adverse employment action. Under this standard, the employer could typically prevail by demonstrating a legitimate, non-discriminatory reason for the adverse action (e.g., that the employee was terminated for excessive absenteeism).

Now, plaintiffs claiming workers’ compensation retaliation need only prove that their exercise of rights was a “contributing factor” in the adverse employment action. In other words, an employee may still proceed or even prevail on a retaliation claim even if the employer demonstrates a legitimate and non-discrimination reason for taking the adverse action. 

For example, in Templemire, the employer presented evidence that it terminated the plaintiff for insubordination approximately 10 months after plaintiff had filed a workers’ compensation claim. The plaintiff then presented evidence that the employer had yelled at him, had referred to other injured employees as “whiners,” and had belittled employees as a result of their injuries. The jury entered a verdict for the employer, finding this evidence was insufficient to demonstrate that plaintiff’s workers’ compensation claim was the exclusive reason for his termination.

After adopting the “contributing factor” standard, however, the Missouri Supreme Court found that plaintiff’s evidence was sufficient to permit a reasonable trier of fact to conclude that the filing of his workers’ compensation claim “contributed” to his discharge in some way. This conclusion was reached notwithstanding the fact that the employer had presented competent evidence that the plaintiff was terminated for a legitimate reason. This Court then remanded the case for a new trial consistent with its decision.

This decision is somewhat perplexing considering the Missouri Supreme Court’s prior observation that a lower standard for workers’ compensation retaliation claims would “encourage marginally competent employees to file the most petty claims in order to enjoy the benefits of heighted job security.” However, it is consistent with the Court’s trend in recent years to significantly lower the standard of proof for discrimination and retaliation claims.

Minimizing risk in the future

One thing is for certain—employers can expect an increasing number of workers’ compensation retaliation claims in the wake of the Templemire decision. The burden of proof is now significantly lower, making summary judgment much more difficult to obtain, and increasing the overall appeal of these claims for plaintiffs’ attorneys.

To minimize the risk of these claims, employers should exercise particular caution in the way they treat and speak to employees who have exercised their workers’ compensation rights or plan to exercise these rights. As the Court hinted in Templemire, under the new standard, even a careless comment about an injured employee or the effect of the injury on the employer may pave the way for a retaliation claim. Training supervisors to avoid any comments or conduct that could be perceived as retaliatory, and exercising extra caution before terminating or otherwise disciplining employees who have exercised or plan to exercise their workers’ compensation rights will significantly reduce the risk of a claim.

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