Blog Archives

  • Missouri’s Right To Work Suspended By The Citizens

    As you are likely aware, Missouri became the 28th “Right to Work” state after Governor Greitens signed Senate Bill 19 into law in February 2017.

    Right-to-work laws prohibit employers from requiring their employees to pay union dues, prohibiting common “fair share” provisions in agreements between labor organizations and employers that require the employer to collect union dues from union and non-union employees alike.

    Missouri’s right-to-work statute contains a grandfather clause exempting any agreement between an employer and a labor organization that is entered into before the statute goes into effect. This enables unions to keep collecting dues from non-union workers until the current agreement containing the fair share provision expires. However, if any such agreement is renewed, extended, amended or modified after the law takes effect, it will no longer be covered by the exemption, and the provision mandating union dues will be void.

    Missouri’s right-to-work statute was set to take effect on August 28, 2017; however, the Missouri Constitution provides for a “citizen’s veto,” requiring that legislation passed by the General Assembly be stayed and referred to the voters if five percent of the voters in six of Missouri’s eight congressional districts sign a petition before the law takes effect.

    Right-to-work opponents submitted more than 300,000 petition signatures on August 18, 2017, and the legislation was officially stayed pending verification of the petition signatures by the Secretary of State. Verification is expected to be completed in the coming weeks. If at least 100,000 of the submitted signatures can be verified, Missouri’s right-to-work statute will not take effect, if at all, until after the 2018 referendum. Right-to-work legislation was defeated when it last appeared on Missouri ballots in 1978.

    In the meantime, if desired, employers and labor organizations may continue to enter into agreements containing “fair share” provisions, and these agreements will be covered by the grandfather provision until they expire or are modified.

    For more information, please contact Allison M. Scime at, or at 314-436-8342, or contact your Lashly & Baer attorney.

  • O’Brien Speaks on Retirement Plan Compliance

    Attorney, Rhonda A. O’Brien spoke to a group at the Retirement Plan Advisors’, 2016 Defined Contribution Retirement Plan Committee Seminar. Her session “Keeping Plan Documents Up to Date – Restatements and IRS Required Amendments” addressed the importance of plan compliance and making sure that your plan documents met current IRS requirements.  Please contact Rhonda or your Lashly & Baer, P.C. attorney for more information.


  • Lashly & Baer, P.C. Attorney Rhonda O’Brien Takes Part In Affordable Care Act Education

    This Fall, Rhonda A. O’Brien will host a webinar on the Affordable Care Act in conjunction with the Missouri Hospital Association – Center for Education. She will discuss the importance of ongoing employer compliance. The ACA imposes, upon covered employers, health care coverage rules for full-time and part-time employees.  The law is in effect now! The ACA required employer reporting and various legal documentation requirements that require ongoing data collection, analysis and monitoring.  Strategic decisions and compliance will be easier for the employer whose staff is very familiar with the requirements. The webinar will cover the following subjects:

    • Summarize the employer “play or pay” mandate
    • Review of the requirements to offer affordable and minimum value health coverage to full-time employees and their dependents
    • Address employee eligibility hot spots
    • Review of the penalties that may be imposed upon employers under the ACA
    • Review Health Coverage information reporting – including IRS Forms 1094-C and 1095-C.
    • Discussion of the documentation requirements including the SBC, employee notices and wrap documents
    • Address the importance of establishing and maintaining ongoing compliance systems and monitoring these systems.
  • EMPLOYER ALERT: New Form I-9 Must be Used By May 7th

    As of May 7, 2013, all employers in the United States will be required to use the new Form I-9 to comply with employment eligibility verification requirements under the Immigration Reform and Control Act of 1986.   The new form adds additional data fields that must be filled out. You may access the new form by clicking on the following hyperlink Employment Eligibility Verification Form I-9.  Please note, failure to use the new I-9 form may result in penalties.

    If you have any questions regarding the completion, retention and/or responding to inquiries from any Federal agency regarding Form I-9, please contact Jim Hetlage at 314-621-2939.

  • EMPLOYERS BEWARE— EEOC targeting lesbian, gay, bisexual, and transgender individuals discrimination and pregnancy accommodations.


    In its Strategic Enforcement Plan, the U.S. Equal Employment Opportunity (EEOC) has elevated to the status of “national priorities” issues concerning the Americans with Disabilities Act Amendments Act (ADAAA); application of Title VII antidiscrimination provisions to lesbian, gay, bisexual, and transgender individuals (LGBT), and workplace accommodations for pregnancy.  The new initiatives further illustrate the Obama Administration’s unprecedented interpretation of federal employment laws, in that, LGBT are not a protected class under Title VII, as written; and accommodations are not required under the Pregnancy Discrimination Act.

  • Attorneys’ Fees Counted as Damages For Purposes of Punitive Damages Cap

    The Missouri Supreme Court again analyzed portions of the State of Missouri’s 2005 Tort Reform Bill in a recent employment discrimination decision.  In that decision, the Missouri Supreme Court found that attorneys’ fees should be included in the determination of the “net amount of judgment” that is used to calculate the maximum amount of punitive damages pursuant to Section 510.265, RSMo. 

    Section 510.265 limits the amount of punitive damages in most civil cases to the greater of $500,000 or 5 times the net amount of the judgment awarded to the plaintiff against the defendant.  The Missouri Supreme Court ruled that in determining the net amount of the judgment against the defendant, attorneys’ fees should be included.  In other words, actual damages plus any awarded attorneys fees are added together and any appropriate reductions then applied.  This amount is then multiplied by 5 in order to determine the total amount of punitive damages awardable. 

    While punitive damages may not play a significant role in the majority of cases, including attorneys’ fees in the net amount of judgment certainly has the potential to significantly raise the floor on the amount of punitive damages awardable in such cases. 

     Hervey v. Missouri Department of Corrections

  • EMPLOYERS BEWARE: The Federal Government Wants to “Friend” Your Employees

    The federal government is looking for ways to communicate with your employees. Why, to gain access to disgruntled employees to start regulatory investigations and audits?

    Many federal agency investigations and audits begin with a single disgruntled worker (or union) filing a complaint to the government, often after being terminated. Without the inside mole, i.e., the informant, it is difficult for a government agency to uncover employment law violations. To this end, federal agencies are expanding their outreach to employees, placing businesses at risk for more government investigations and audits.

    The United States Department of Labor (“DOL”) just published an “Employee Guide” on the Family and Medical Leave Act. In addition to explaining the requirements of the law, it instructs employees on how to file a complaint with the agency. The DOL hosted a webinar explaining the Guide and encouraged participants to publicize the Guide through social media outlets. Likewise, The National Labor Relations Board (“NLRB”) is also adapting its methods to get its message to employees. Despite numerous legal challenges, the NLRB created an interactive webpage describing workers’ rights to engage in “protected concerted activity.”

    The NLRB and DOL both have Facebook pages with thousands of “likes.” The Commissioner of the EEOC, has a Twitter account with more than 1,600 followers; the NLRB has more than 3,700. The DOL has more than 43,400 followers. These numbers prove the agencies are succeeding in getting the attention of U.S. workers.

    Employers should not underestimate the savvy of the government in reaching their employees all in covert effort to initiate audits and investigations; and the end game, of course, is more financial penalties paid to Uncle Sam. Now is the time to look at your policies and practices, before your employees send the government in to do it for you!

  • EMPLOYERS BEWARE: Federal Government Eroding State-Law Employment At-Will Doctrine

    The NLRB General Counsel has attacked employers’ use of at-will employment acknowledgments.  The federal government has taken the position that the mere signing of an at-will acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not.  Accordingly to the federal government, such standard at-will acknowledgements premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship; and, therefore, clearly chill employees who were interested in exercising their Section 7 rights.  

    Employers should consult with their labor counsel to review and revise their current at-will acknowledgments to address this recent and unprecedented attack on at-will employment.

  • EEOC Rules That Gender-Identity Discrimination Is Covered by Title VII

    According to an opinion issued on April 20, 2012, by the Equal Employment Opportunity Commission (EEOC) an employer who discriminates against an employee or applicant on the basis of the person’s gender identity, i.e., transgender, is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964.

    The EEOC decision will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country.  Numerous cases are pending with federal courts on whether gender-identity discrimination falls within the protections of Title VII.

  • NLRB “Poster Rule” Put On Hold – Again

    The National Labor Relations Board (NLRB) issued a rule requiring most private sector employers to display a poster giving employees notice of their rights under the National Labor Relations Act. The controversial rule’s effective date was to be April 30, 2012. Its status has been uncertain as the legality of the rule was challenged in federal court proceedings. Recently, the U.S. Court of Appeals for the District of Columbia Circuit enjoined enforcement of the NLRB’s “poster rule.” The court’s action came only a few days after a federal court in South Carolina struck down the rule. A federal district court in the District of Columbia had held earlier that the NLRB had the authority to issue the rule but had struck down key enforcement provisions. The rule was scheduled to take effect April 30.

  • DOL Issues: New FMLA Forms

    The Department of Labor finally revised six important Medical Certification Forms used by most employers. The old forms expired on December 31, 2011, leaving a very confusing situation for employers who wondered if it was still acceptable to use an expired form for its FMLA administration. The new forms can be found on the DOL’s website and are: Notice of Eligibility and Rights and Responsibilities, Designation Notice, Certification of Health Care Provider for Employee’s Serious Health Condition, Certification of Health Care Provider for Family Member’s Serious Health Condition, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave. The expiration date on the new forms is February 28, 2015.

  • Can family histories put your company into the dark ages?

    From our work with clients, most companies aren’t paying enough attention to a recent law regarding genetic information discrimination.  In some cases, what a company might think of as ‘standard operating procedure’ could in fact be a violation of an individual’s rights to privacy and be subject to a detrimental lawsuit. 

    Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information.  So what counts as “genetic information?”  As it turns out, quite a lot.  Information about genetic tests of both the employee/applicant and his/her family members, family medical histories, a request for or receipt of genetic services, or participation in clinical research that includes genetic services, are all covered under the definition of genetic information.

    Because the law took effect less than two years ago many companies are still unaware of it or its potential risk exposure to legal action.  It becomes imperative to educate your human resource departments on the nature of the law and ensure that any pre-screening or hiring activities are reviewed for compliance.  Unawareness of the law isn’t a defense, so make sure you have the facts.

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