Sorry For The Delays

We are putting out the October and November at the same time.  We apologize for the delays. A variety of facts delayed the release. We will continue to work our hardest to provide you with quality information.  We appreciate your patience!!

Missouri Supreme Court Issues Landmark Opinion Determining Rights to Bargain Collectively

On October 4, 2022, the Missouri Supreme Court handed down a unanimous 33-page opinion, in American Federation of State and County Employees v. State of Missouri, a landmark case, deciding the validity of S.B 1007, which abolished the Missouri civil service law for state employees and mandated that almost all non-merit state employees be employed at-will. The law was challenged by the unions on the grounds that S.B. 1007 violated the right of public employees of the State to bargain collectively under the Missouri Constitution.

Many local government employees are by statute or charter at-will employees, making them subject to the same reasoning, which the Court applied to state employees in this case. After all, local government employees are granted the right to bargain collectively by the same constitutional provision; therefore, the same legal analysis followed by the Court in this case applies to local government employees who are at-will.

The overarching rule adopted by the Court is:  

“In sum, this Court finds the plain language of SB 1007 mandates all non-merit state employees be employed at-will, and, as a result, the State is not permitted to bargain with Unions over terms and conditions of employment that would be inconsistent with at-will employment. These terms and conditions are inconsistent with at-will employment only if they limit the right to terminate. (My Emphasis)

The Court then examined a number of situations, in the collective bargaining process relating to terms and conditions of employment, where there could be issues, providing valuable insight and strong legal precedent as to how these same identical provisions would apply to local government in similar situations. In other words, they take a lot of the guess work out of situations when you are bargaining with unions at the local level. 

Definition of At-will Employee – First, the Court defines the term at-will. It requires an indefinite term of employment and the ability to terminate employment without cause.

SB 1007 restricts the State from bargaining over terms and conditions of employment for at-will employees by prohibiting bargaining over terms and conditions that provide for a definite duration of employment and the ability to terminate without cause. Notably, it does not prohibit the state from bargaining over terms and conditions of employment that do not conflict with at-will employment.

Before getting to the all-important examples, we need to first review the main conclusions of the Opinion

• Right to bargain collectively – “This Court also finds SB 1007 does not violate the right to bargain collectively as guaranteed by Article I, Section 29 of the Missouri Constitution because the State is still able to bargain with Unions in good faith for various terms and conditions of employment consistent with at-will employment.”
• Impairment of existing contract obligations -The Court found that SB 1007 does not substantially impair obligations in existing contracts in violation of the contract clause in Article I, Section 13 of the Missouri Constitution because the savings clauses in each Collective Bargaining Agreement (CBA) accounted for modification upon relevant changes in state law by provisions that required the CBA to be interpreted accordingly.
• Changes to the State Code of Regulations (SCR) – After the passage of SB 107 the State made a number of changes to the State Code of Regulations (SCR). These changes included grievance procedures, for-cause protections, and seniority protections, many of which the Court found to be unlawful to the extent they prohibit the State from bargaining over terms and conditions of employment that are consistent with at-will employment.

Termination- The principal conclusion of the Court with respect to termination is:

 “…the at-will employment relationship mandated by SB 1007 requires an indefinite term of employment and the ability to terminate employment without cause. SB 1007, therefore, restricts the State from bargaining over terms and conditions of employment that provide for a definite duration of employment or require cause for termination.”

Any term that limits the right to terminate an at-will employee is invalid.

Grievance Procedures – Grievance procedures and other similar terms and conditions of employment are not necessarily inconsistent with at-will employment. Grievance protections are inconsistent with at-will employment only when they limit the right to terminate employment at any time without cause.

For the same reason, seniority and for-cause protections are not necessarily inconsistent with at-will employment.

Examples

Seniority – Regarding seniority protections, if an employer is required to consider seniority as a deciding factor in termination that would be invalid because the employer’s right to discharge an employee at any time without cause would be restricted by that individual’s amount of experience. However, seniority protections that do not restrict the right of the employer to terminate an employee at any time without cause would not interfere with the at-will employment relationship. If an employer is required to consider seniority as a deciding factor in termination that would make it invalid for at-will employees, but that does not limit the right to otherwise bargain over seniority as a term and condition of employment, like layoffs.

For-cause job protections – For-cause job protections may not always interfere with the right to terminate employment without cause. For example, a for-cause protection that limited disciplinary action against an employee to certain conduct would not necessarily interfere with the right to terminate employment without cause and would not be inconsistent with at-will employment, unless the for-cause action limited the right to dismiss the employee. Therefore, a rule allowing action to suspend an employee would be OK. American Federation of State and County Employees v. State of Missouri, (SC99179, 10/4/22)

Comments Howard: The Opinion is well written, easy to read, and loaded with lots of employment law principles, and I mean loaded. Overall, I thought the opinion preserved fairly well rights to bargain collectively under the Missouri Constitution, in light of the draconian action taken by our state legislators to abolish civil service rights of state employees, which existed since 1945, by making most state employees at-will employees. Frankly, this was a feeding frenzy for state legislators.  

Property Owner Did Not Make Special Use Of City Right-Of-Way

Facts and Procedure: Brenda Wilkins (Plaintiff) was walking on a public sidewalk adjacent to 7574 Ellis Avenue, in the City of Maplewood (Property). The property was owned by John and Patricia Hendel. The sidewalk was covered by a pool of water obstructing Plaintiff’s passage on the sidewalk. She stepped onto the grass area between the sidewalk and Oakland Avenue, on the west side of the Property to avoid the water. This public right of way was owned by the City of Maplewood (Maplewood). Plaintiff fell into a sewer vent for the Property’s lateral sewer line that was missing its cover and sustained injuries. Plaintiff filed an action alleging negligence and nuisance against the City of Maplewood and the Hendel’s (Defendants). Defendants filed a motion for summary judgment, arguing they were entitled to judgment as a matter of law. The trial court granted summary judgment in favor of Defendants. Plaintiff appealed to the Eastern District.

Analysis : Plaintiff argued that the trial court erred in granting summary judgment in favor of Defendants on her claim of negligence because Defendants made a “special use” of the area and created a nuisance.  

The Court begins it analysis by noting that generally, a municipality has a nondelegable duty to maintain public property and the adjacent landowners do not owe any duty to individuals to maintain or repair the areas unless landowners make some special use of the property to serve their own purposes or the landowner, by some affirmative act, creates a dangerous condition in the publicly owned area.

Special Use – The “special use” exception applies where the abutting property owner (or lessee) uses the public right of way in an alternative manner, such as using it as a driveway or adding an obstruction to the area. In order to create a duty under this exception, there must be evidence that the property was used for something other than its intended use. The abutting property owner will be liable if he or she uses the public right of way for his or her own private benefit or convenience and fails to exercise reasonable care to prevent injury to other individuals lawfully using the area. Based on the undisputed evidence the Court concluded that the Defendant’s only used the vent for plumbing services and that they did not make any use for any alternative purpose; therefore, the trial court did not err in granting the Defendant’s motion for summary judgment on the special use exception.

Nuisance Claim (Count II) – With respect to the nuisance claim, the Court applied the same analysis as it did for the special use claim noting that in the context of injuries to third parties caused by allegedly unreasonable conditions of property, typically negligence and nuisance claims coexist and are relatively inseparable. This is generally because the acts or omissions constituting negligence usually give rise to the claim of nuisance. In this case, Plaintiff in order to prove that the Defendant’s as the owners of adjacent property created a nuisance the Plaintiff must show an affirmative act.  The undisputed facts showed Defendants did not take an affirmative act based on the earlier analysis of the “special use.” The Defendant’s simply used the property for its intended use, the vent; therefore, there was no duty to Plaintiff to maintain or repair the sewer vent. Defendants were entitled to judgment as a matter of law on Plaintiffs claim for nuisance. Wilkins v. City of Maplewood, (ED110387, 10/18/22)

Comment Howard: I have a lot of concern with this opinion. I do not understand why the placement of a sewer vent on the city right-of-way is not a special use, even though the Court distinguishes this case from other cases where a special use was found.  The opinion was confusing because the adjacent property owner was leasing the property (tenant) nevertheless, the opinion refers to this person as the owner of the property, creating confusion in my mind. The Opinion continues to confuse terms by referring to the City of Maplewood and the tenant collectively as defendants. I am generally OK with that but in this case, it seems like the City has different obligations than the tenant under the law. The City has a non-delegable duty to maintain the right-of-way. From the standpoint of local government, I would not want the sewer vent on city property because of the potential liability, despite the ruling in this case.

No Proximate Cause In High-Speed Chase

There was no proximate cause in a high-speed chase because the St. Louis police had broken off the chase before the fleeing suspect crashed into another car.  At the time of the collision the nearest officer was so far from the collision that he did not see it occur.  All he saw was a “plume of smoke” in the distance, “that he suspected to be a vehicle crash caused by the suspect.”  In addition, it took the first officer to reach the scene, approximately 15-20 seconds after the collision occurred to arrive at the scene where the collision occurred.  

The Eastern District held that the trial court did not err in granting the City’s motion for judgment on the pleadings because Plaintiff failed to allege specific facts sufficient to establish that officers conduct was the proximate cause of his injuries as a matter of law. The allegations that the high-speed chase by the police was the cause was “mere conjecture and speculation” and not supported by the facts.  Harris v. City of St. Louis, (ED110325, 10/11/22)

Employee Who Did Not Retain Required Work Permit For Work Eligibility Voluntarily Quit Job

Facts and Procedure: The Bricklayers and Allied Craftworkers Local Union No. 1 of Missouri (the “Union”) and the Mason Contractors Association of St. Louis (the “MCA”) created a summer work program (the “Program”) to develop a pool of workers for possible future union apprentices. The Program ran from June 1 through August 31, 2019.

Employer hired Walker, and the Union issued him a temporary work permit. Walker began working for Employer on June 10, 2019, and his last day of employment was August 30, 2019. Walker knew his temporary permit expired on August 31 and that a temporary work permit was required for continued employment under the CBA. Employer would have violated the CBA by employing Walker without a permit. When the Program ended, Walker was not actively looking for work because he was enrolled in a trade school, the Missouri Welding Institute.

Walker filed a claim for unemployment benefits with the Division of Employment Security (“Division”). Employer objected to Walker’s claim and stated that Walker voluntarily left his job with Employer so that he could return to school. The Commission found that Walker was not disqualified from receiving unemployment benefits because his “separation was not for misconduct connected with work.” Additionally, it found Walker separated from Employer for “reasons attributable to a lack of work because the [Program] ended,” and was eligible for unemployment benefits. Employer appealed to the Eastern District.

Analysis: The Eastern District ties up the question: Was Walker involuntarily discharged or voluntarily quit his position by failing to obtain or retain the work permit that he knew was required for continued employment with Employer?

The Court noted that Missouri case law holds that, “A claimant leaves work voluntarily when he leaves of his own volition, and that “voluntary” should be given its plain and ordinary dictionary meaning, which is: “proceeding from the will: produced in or by an act of choice.” The Court then concluded that the decision of the Commission was not supported by the facts because Walker knew that his employment was temporary and that he was ineligible to work after his temporary permit expired on August 31. The record showed that Walker knew a permit was required to continue working for Employer beyond the temporary employment and did not produce any evidence that he either tried to acquire a work permit upon the expiration of the Program or requested any assistance of Employer to obtain the required permit; therefore, the decision of the Commission is reversed. Walker v. Division of Employment Security, (ED110346, 10/18/22)

In The Pipeline Case

Scotusblog is an amazing place for information about ongoing issues.  One article that drew my attention was an article about two cases the Supreme Court is reviewing which involve Section 230 of the Communication Decency Act.  With Elon Musk taking over Twitter the issue of free speech vs hate speech and or permitting the publishing of false information is a hot issue.  Can we expect a consensus regarding the curtailing of Section 230 from the Supreme Court?  This is just the beginning of what could be a big issue over the next few years.  What will happen with state laws that curtail what can be removed and what will happen when other state’s require the removal of information that is deemed misinformation.  Read the article, check out the cases, get ready for a brave new world.  Elon Musk, internet freedom, and how the Supreme Court might force big tech into a catch-22

Qualified Immunity Not Granted For Deliberate Indifference To Medical Need

This was a great case covered by IMLA which has some important issues to consider when training police officers.  In Tarashuk v. Givens, the estate of Paul Tarashuk initiated an action against Givens, Harmon, and various other South Carolina state officials.  Paul Tarashuk (“Decedent”), was struck and killed by a vehicle while he was a pedestrian on Interstate 95 (“I-95”) in South Carolina after being taken into custody and released by a deputy.

Prior to Tarashuk’s death, Givens, an Emergency Medical Technician (“EMT”), and Harmon, a paramedic, were called to evaluate Decedent’s mental health status.  The estate alleged, Givens and the other parties violated Decedent’s Fourteenth Amendment substantive due process right to be free from deliberate indifference to his serious medical needs by failing to ensure Tarashuk was transported to a hospital or jail where he could receive adequate medical attention. The district court determined that, while Tarashuk’s right to freedom from deliberate indifference to his serious medical needs was clearly established at the time of the alleged violation, a genuine dispute of material fact barred a ruling on qualified immunity at the summary judgment stage.  Givens and the Appellants appealed the decision that Tarashuk’s  constitutional rights were “clearly established” when the alleged violation occurred. 

The facts in this case are tragic.  Tarashuk suffered from schizophrenia and while suffering from a schizophrenic episode disrobed completely and ran down a highway to an interchange, where, while naked, jumped aboard a tractor trailer. The driver of the truck, not noticing the stowaway, drove off only a mile or so later learning of Tarashuk on the truck. Tarashuk alerted the driver by banging on the windows and jumping on the catwalk between tractor and trailer and pulling out the brake hoses and jumping on the roof of the truck. The driver calls the police and pulled over. The police arrive to find a completely incoherent naked man on top of the truck and asking for medical assistance. EMS arrived and attempted to interview the man, but without little success and despite putting ammonia up his nose to get him to respond. Ultimately, a deputy advised that he would take Tarashuk for a ride and release him once he determined where to do so and that Tarashuk would not be under arrest and not delivered to a hospital. The deputy dropped Tarashuk at a service station still not knowing anything about his identity and shortly thereafter, Tarashuk’ body was discovered along the highway after having been run over. The 4th Circuit held that there was no Qualified immunity as the duty to provide for the detainee.  Tarashuk v. Givens (4th US, 21-1930, 11/8/22).