No Discrimination? No problem! Non-Discrimination Employment-Based Torts in Missouri

by Luke Baumstark

It is well known that most states recognize “at will employment.” This means that, unless an employee has a contract to work for a specific period of time, he/she generally cannot sue a former employer for wrongful termination. There are exceptions to this, including, but not limited to, claims of discrimination based on age, race, gender, and medical leave issues. Some of these exceptions are limited even further, however, allowing only certain people in these “protected classes” to sue. For example, the federal Age Discrimination in Employment Act only allows people over the age of 40 to recover. See 29 U.S.C.A. § 631(a). So, what does this mean for people who do not have time-specific contracts, or who cannot claim discrimination based on age, race, or gender? Does “at will” employment give employers carte blanche to treat employees however they want to? Can employers renege on promises with impunity?

Thankfully, the answer to the latter two questions is “no.” Despite the sometimes-narrow view of what can constitute workplace discrimination, employees have several options when considering if and how to make claims against their employers for matters other than wrongful termination.

Although employees cannot claim breach of contract for being fired in “at will” employment states, they may be able to do so in other contexts. For example, an employee may be able to recover for breach of contract regarding an employer’s failure to compensate him/her the way it promised to. See generally Beck v. Modern Life Insurance Co., 589 S.W.2d 98 (Mo.App. S.D. 1979). Depending upon the circumstances, employees may also seek to recover for compensation issues through claims of fraudulent misrepresentation and/or negligent misrepresentation. This can present itself where employees rely on a promise from an employer (regarding wages, benefits, or other matters) which the employer later reneges on. If an employer intentionally lied, employees may be able to recover for fraudulent misrepresentation. See O’Neal v. Stifel, Nicolaus & Co., 996 S.W.2d 700 (Mo.App. E.D. 1999). See also Brown v. Hannibal Anesthesia Serv., Inc., 972 S.W.2d 646, 648 (Mo.App. E.D. 1998). If an employer simply miscommunicated, it may still be vulnerable to a claim of negligent misrepresentation. See Jennings v. SSM Health Care St. Louis, 355 S.W. 3d 526, 538 (Mo. Ct. App. 2011).

In either case, employees can recover expenditures made in reliance on the promise. See Rogers v. Hickerson, 716 S.W. 2d 439, 446 (Mo. Ct. App. 1986). (“The plaintiff may recover for any injury which is the direct and natural consequence of plaintiff’s acting on the faith of defendant’s false representations.”) If the employee passed on another job in reliance on the employer’s false promise, this may mean he/she can recover based on the difference between what the other job would have paid and what the employer actually did. Further, in fraudulent misrepresentation cases where the employer’s “bait and switch” was intentional, punitive damages can come into play. See generally Werremeyer v. K.C. Auto Salvage Co., 134 S.W.3d 633 (Mo. 2004).

In situations involving an employer preventing its employees from servicing their clients, employees may even be able to recover for tortious interference with a business interest. See W. Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 19 (Mo. 2012) (stating elements of tortious interference). Although this typically happens after the employment has ended, it can occur while it is ongoing as well.

In sum, although “at-will” employment may limit the ways that workers can recover for wrongful termination, it does not render employers immune from suit for their actions while the employment relationship still exists. Regarding matters of compensation, at least, employers remain bound by their promises, like anyone else. If you feel that you have been misled by a present or past employer about pay or benefits, or that your employer simply has not followed through on promised payments, it may be worthwhile to discuss your situation with an experienced litigator who is prepared to fight to get you the compensation you were promised.