Last year, with Governor Greitens at the helm, Missouri passed a number of laws that weakened the Missouri Human Rights Act so that it became more difficult for employees prevail on cases against employers for violations of the Missouri Human Rights Act, like discrimination based upon race or gender or retaliation for filing a workers' compensation claim. These laws were favorites of the republican legislature for years, but they had been historically vetoed by Governor Nixon.
Now, in Senate Bill 831, the Missouri Senate is proposing to potentially make suing an employer a little more difficult. The Senate Bill proposes to allow employers to require arbitration in all at-will employment disputes. Under current law, arbitration agreements are generally only allowed when there is an employment contract and even in that case, an arbitration agreement is only enforceable under limited circumstances.
SB 831 would in many cases take public courts entirely out of the process of settling disputes between employers and employees. The proposed legislation provides that in an arbitration agreement between an employer and an at-will employee the arbitrator shall make all initial decisions as to arbitrability, which includes deciding whether the parties have agreed to arbitrate, whether the arbitration agreement is enforceable, and whether specific claims are arbitrable. The arbitrator must be selected by mutual agreement of the parties or using a strike and ranking process when the parties cannot agree. The act establishes certain criteria for when the arbitrator shall determine that the arbitration agreement is valid. On motion by a party showing that the arbitration agreement does not expressly delegate the issue of arbitrability to the court, the court shall stay the action and order the parties to proceed to arbitration.
Arbitration agreements have pros and cons for both parties, but far more cons for employees. Arbitration requires one or more arbitrators, all of whom cost money. Some arbitration agreements require three arbitrators who each charge $5,000 a day. Most agreements would require the parties split the arbitration fees, arguably more difficult for employees.
What makes this bill somewhat hideous in this day and age is that arbitrations are usually secret. They allow men of the Harvey Weinstein variety to keep their actions secret. Also - most arbitrators in the state of Missouri are men.
Finally, depending on the agreement, many arbitration decisions are final. They cannot be appealed. Accordingly, an employee has no recourse if they do not get the outcome he/she believes he/she deserves.
This is an outline of the current law proposed by the legislature. It may run afoul of some federal employment laws. It could also change many times between now and the end of the legislative session. Nonetheless, it is something we should be keeping an eye on as the Republican led Missouri legislature continues to push through its favored legislation.