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Aerial view of Kansas City, home of Rasmussen Dickey Moore.

Knowledge The Blog

Recreational marijuana sales have begun in Missouri.

By Justin U. Ijei and Nathan A. Lindsey
 · February 24th, 2023

Recreational marijuana sales have started in Missouri following the passage of Amendment 3, shaking up the landscape for drug enforcement policies in Missouri as some employer actions in relation to employee use of marijuana are now prohibited by law.

Beyond making recreational use legal for those 21 years and older, Amendment 3 included new protections for medical marijuana cardholders prohibiting employers from discriminating or taking adverse action against an employee for off-employment site use of marijuana during non-work hours or testing positive for marijuana. This provision aligns with the protections other states have incorporated for medical marijuana users. For example, in Massachusetts and Connecticut, employers must have reasonable accommodations for medical marijuana patients. See Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Mass. 2017), and see Conn. Gen. Stat. §21a-408p; Del. Code tit. 16, §4905A. 

Despite these protections, Missouri’s Amendment 3 still allows an employer to enforce a drug-free policy if the failure to enforce a policy results in monetary or licensing-related benefits under federal law. In addition, employers can also enforce a drug-free policy if the use of marijuana would impair the employee’s ability to perform job-related responsibilities, impair the safety of others, or conflict with occupational qualifications related to employment.

Notably, there are no further protections for recreational marijuana users without medical cards, meaning employees seeking these protections should ensure they have valid medical cards. Employers may still generally enforce drug-free policies against employees who are not medical card holders. Likewise, there is no change to an employer’s ability to terminate an employee who is under the influence of marijuana while at work. However, given the lack of reliable testing to measure recent marijuana use or impairment, employers should use caution.

Amendment 3 also included language allowing for certain marijuana-related criminal offenses to be expunged. Misdemeanor marijuana offenses are set to automatically be expunged by the courts, while felony convictions of possession of up to three pounds of marijuana are to be expunged within a year. In cases of possession of more than three pounds, the person seeking expungement must personally petition the court, but only after they have completed a sentence, probation, or parole period. There has been some skepticism regarding the ability of courts to meet these deadlines, and a supplemental budget has been requested to pay the state’s court clerks overtime to review.

Missouri employers should evaluate their current drug testing policies and practices to ensure they are in line with the new protections for medical marijuana cardholders adopted after the passage of Amendment 3. Policies related to impairment while at work should also be evaluated and documented if they are not. Rasmussen Dickey Moore’s employment attorneys closely watch new laws that affect Missouri employers. Call on us to ensure your employment policies are compliant with new recreational marijuana laws to make sure that you, your business, and your employees are protected.

Dr. Maya Angelou and Dr. Yusef Salaam, heroes of Black history and present. In the background is a photo of the March on Washington for civil rights in 1963.

By The RDM Team
 · February 14th, 2023

February will always be that sacred time of year when we reflect on and celebrate Black History. Thanks to the contributions and sacrifices of those that came before me, I got to enjoy a childhood that was, for the most part, insulated (no pun intended) from the ghosts of this country’s racist past. I was born in the 90s—over 30 years after Dr. Martin Luther King, Jr.’s iconic March on Washington. I grew up in a military family, no less, so there was no shortage of diversity in the communities we lived in. I certainly wasn’t oblivious to the Civil Rights Movement—and my parents made darn sure I knew about it—but to say that I’d lived it, or even witnessed it with my own eyes, simply wouldn’t be true. Looking back on it, though, I realize that my childhood was a living testament to the dream Dr. King spoke of on the steps of the Lincoln Memorial all those years ago. It’s not something I take for granted, but as I grew into adolescence and adulthood, I had to come to terms with the inevitable conclusion that there is still much to do.

It’s the collective experience and sacrifices of those great individuals that came before us, including Dr. King, Thurgood Marshall, Harriet Tubman, Malcolm X, Rosa Parks, Muhammad Ali, and so many others, that help us make sense of the world we live in today. We all are immeasurably blessed that their legacies are something we have the chance to reflect on with the benefit of hindsight. Even in today’s climate of social unrest, there is much we can learn from the way these Black heroes lived their lives that will enrich and empower us, as we carry on through our own.

I know I am far from the only person who has struggled with frustrations when they see the systems in this country were set up in a way that benefits some to the detriment of others. And I don’t mean “see” like you read it in a book or online. I mean taking a drive down Troost Avenue in Kansas City, Missouri, in 2023 and seeing, with your own eyes, the ever-present effects of redlining practices that took place decades ago. I mean learning about (and visiting) Tulsa, Oklahoma. I know that I (and many others) have spent nights agonizing over America’s insatiable appetite for unrestrained cruelty, particularly where Black lives and blue lives are concerned. The likes of Keenan Anderson, George Floyd, Breonna Taylor, Tamir Rice, Philando Castile, Stephon Clark, Alton Sterling, Eric Garner, Trayvon Martin, and many others each serve as painful reminders that as far as we’ve come, there is still some way to go.

For many, accepting this reality means you’ve inevitably dealt with those same feelings of frustration, and at its worst, resentment. But what do you do with those negative emotions? I encourage anyone that has felt (or is feeling) this way to take this month to reflect on the lessons we can learn in Black history. To put this in perspective, I will share a discussion I was lucky to have with Dr. Yusef Salaam—one of the “Exonerated (Central Park) Five” during a visit he took to KU in February 2020, during my last year of law school. There, I asked him how on Earth he emerged on the other side of a wrongful conviction, losing years of his life in prison, and being vilified in a page one newspaper article by (at the time) the sitting President of the United States—who to this day has never issued any kind of apology. How did he suffer through all of that without being vengeful towards the inequitable systems in this county that allowed that to happen? His response to me was a quote he learned from Dr. Maya Angelou:

“You should be angry. You must not be bitter. Bitterness is like a cancer. It eats upon the host. It doesn’t do anything to the object of its displeasure. So use that anger. You write it. You paint it. You dance it. You march it. You vote for it. You do everything about it. You talk it. Never stop talking it.” 

And that’s exactly what Dr. Salaam did. He read, and he wrote, and he never stopped talking about it.  That is how he overcame his struggle and went on to inspire a generation—myself included. And therein lies the beauty of Black history. Behind every great man or woman in history was someone that inspired them to act in kind. In this sense, Black history is not something distant or perpetually suspended within the ambit of the Civil Rights Movement. It’s always being made. From Dr. Angelou to Dr. Salaam, and from Dr. Salaam to myself—it’s Black people inspiring those that follow after that constitutes Black history. It’s something that should always be celebrated, shared, and in times of strife, should be looked to for wisdom and clarity. I thank Dr. Angelou because her words gave grace and clarity to frustrations I’d carried in my heart for years. I also thank Dr. Salaam for being the vessel through which her words could flow in ways that not only inspired and changed the course of his life but also touched on mine.

I am certain there is something for all of us to learn this month that will revitalize our collective spirit and inspire us as we carry on through this year. We only have so much time on this earth, and the clock is ticking inexorably toward our journey’s end. To that end, I would encourage anyone to be proactive and seek out ways we can learn from and emulate our predecessors. It is incumbent on all of us to ensure that their legacy lives on. Whether that be reading about these Black revolutionaries online, conversing with a colleague, or simply watching a Netflix documentary—what can you learn from those that came before, and how can you ensure those lessons are passed on to those that follow after? 

This article was originally published in the February 2023 issue of DRI’s The Voice. Dillon is a member of DRI’s Diversity and Inclusion Committee.

The Federal Trade Commission Building in Washington DC. The FTC has proposed a new rule barring many non-compete agreements.

By The RDM Team
 · January 17th, 2023

The current landscape regarding the enforcement of non-compete agreements is about to get flipped on its head in the United States. Following President Biden’s July 2021 executive order encouraging the Federal Trade Commission to employ its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” on January 5, 2023, the FTC—in a profound exercise of its regulatory power—issued a notice of proposed rulemaking that would have a sweeping effect on the enforcement of non-compete agreements.

The Proposed Rule 

The new rule will not only bar employers from entering into non-compete agreements with their workers. It will additionally require employers to rescind pre-existing non-compete clauses no later than 180 days after the final rule is published. Additionally, employers will be required to provide notice to their employees that, as of the compliance date, any non-compete clauses are no longer in effect and may not be enforced against the worker.

To properly comply with the rule, an employer’s communication to its workers would need to be “individualized” and “on paper or in a digital format such as, for example, an email or text message.” Notice would need to be delivered within 45 days of rescinding the non-compete clause. The notice requirement would apply to current and former workers, to the extent that “the worker’s contact information [is] readily available.” The proposed rule includes a very limited exception which is applicable only to “a person who is selling a business entity or otherwise disposing of all of the person’s ownership interest in the business entity, or by a person who is selling all or substantially all of a business entity’s operating assets, when the person restricted by the non-compete clause is a substantial owner of, or substantial member or substantial partner in, the business entity at the time the person enters into the non-compete clause.” 

Preemptive Effect on States’ Non-Compete Laws

Until now, the enforceability of non-competition clauses was a matter of state law, and states’ positions regarding the proper scope of noncompetition restrictions have varied. If implemented, however, this new rule will supersede all state laws, regulations, orders, or interpretations to the extent that they are inconsistent with the FTC’s rule. It’s worth noting that only California, North Dakota, and Oklahoma outright ban the enforcement of non-compete agreements—so the FTC’s rule would effectively create a nationwide policy that goes further than state law in the remaining 47 states.

The tremendous significance of this new rule cannot be overlooked. Most U.S. companies will be forced to completely change how they operate in retaining talent and safeguarding company secrets. Thus, it should come as no surprise that the rule, if adopted in its current form, will face prompt legal challenges.

In publishing the Notice of Proposed Rulemaking—which is the first step in the FTC’s rulemaking process—FTC Commissioners voted 3-1, along partisan lines, with Commissioner Christine Wilson being the lone dissenter. In her dissenting statement, Commissioner Wilson notes that the proposed rule “…represents a radical departure from hundreds of years of legal precedent that employs a fact-specific inquiry into whether a non-compete clause is unreasonable in duration and scope, given the business justification for the restriction.” She further expects that the “…Commission’s competition rulemaking authority itself certainly will be challenged,” including under the “major questions doctrine” addressed in West Virginia v. EPA, as the “Commission lacks clear Congressional authorization to undertake this initiative.”

The public will have 60 days to submit comments on the proposed rule, which was based on a preliminary finding that non-compete clauses constitute an unfair method of competition and, therefore, a violation of Section 5 of the Federal Trade Commission Act. The FTC noted that it is specifically seeking comments on: 

  1. Whether franchisees should be covered by the rule; 
  2. Whether senior executives should be exempted from the rule or subject to a rebuttable presumption rather than a ban; and 
  3. Whether low- and high-wage workers should be treated differently under the rule.

The comment period closes after March 10, 2023. The rule would subsequently take effect 180 days after the final version is published, but its imposition could be delayed as it is almost certain to face a significant wave of litigation challenging the constitutionality of the rule.

Although the rulemaking process is still in the early stages, this is the strongest indication of legislative and executive intent to void existing non-compete agreements and ban the use of such agreements going forward. As the tides drastically change for American businesses, employers should be proactive before this comment period is over and speak to an attorney regarding how their policies on non-compete agreements will be affected going forward. RDM’s Employment and Labor Law Team is ready to help you understand your options and ensure compliance with potential new regulations. Contact RDM today.

Further Reading on the FTC’s Non-Compete Rule

Dillion Williams previously provided an overview of restrictive covenants, including non-compete and non-solicitation agreements, in “The Shifting Landscape of Non-Compete and Non-Solicitation Agreements.” The article appeared in the January 2023 issue of DRI’s The Brief Case and was co-authored by Kennard Davis, associate attorney at Baker Donelson’s New Orleans office. Dillon and Kennard serve together on DRI’s Diversity and Inclusion Committee.

The Missouri Capitol in Jefferson City. The state legislature passed statutes reforming punitive damage awards in 2020.

By The RDM Team
 · December 13th, 2022

The Missouri legislature passed Mo. Rev. Stat. § 510.261 in 2020. The statute aimed to limit the frequency and sum of punitive awards. In advance of this aim, Mo. Rev. Stat. § 510.261.5 states that “[n]o initial pleading in a civil action shall contain a punitive damage award.” The section goes on to establish that the trial court must serve as a gatekeeper, granting plaintiffs leave of court to plead punitive damages only after a plaintiff shows “a reasonable basis for recovery of punitive damages” through “affidavits, exhibits, or discovery materials.”

The statute has now been in effect for a little over two years and has faced multiple challenges alleging the statute violates the Missouri State Constitution. Despite strong challenges from plaintiffs, the statute has been enforced in state courts throughout Missouri.

Defense counsel across the state have moved to strike punitive damage claims from initial pleadings filed after the statute’s activation date. Plaintiffs’ counsel have responded by asserting that the statute violates Article V of the Missouri Constitution, which states that “[t]he supreme court may establish rules relating to practice, procedure and pleading for all courts,” because the new statute conflicts with a procedural rule rightfully promulgated by the Missouri Supreme Court. This argument relies on the Missouri Court of Appeals ruling in State v. Emerson, which held that “if there is a conflict between [the Supreme] Court’s rules and a statute, the rule always prevails if it addresses practice, procedure or pleadings.” 573 S.W.3d 93, 102 (Mo. App. W.D. 2019). Plaintiffs have also claimed that the statute conflicts with the Missouri Rules of Civil Procedure and that the evidentiary standard and leave of court requirements violate the right to a jury trial found in Mo. Const. Art. 1 § 22(a).

Successes for Defendants…

Defendants have, to this point, been successful in enforcing the statute. At least three separate circuit courts have rejected plaintiffs’ arguments claiming the statute violates the Missouri Constitution and granted motions to strike punitive damage claims. There is not yet a written opinion explaining any court’s precise reasoning for upholding the statute, but defendants have advanced multiple persuasive arguments to rebut challenges.

First, defendants argue that the statute does not conflict with the Missouri Rules of Civil Procedure because the rules do not require punitive damages to be included in the initial pleading and the statute still allows punitive damages to be pleaded later. Defendants have also argued that the statute does not violate Mo. Const. Art. 5 because the statute only defines the right to punitive damages and therefore is substantive rather than procedural. Other defendants have argued that plaintiffs do not have a vested constitutional right in punitive damages, and the statute is merely procedural when guarding against claims that the statute interferes with Mo. Const. Art. 1 § 22(a)’s right to a jury.

…and Successes for Plaintiffs

While the statute continues to enjoy veiled but consistent enforcement in state court, plaintiffs have been successful in defeating defendants’ motions to strike in federal diversity actions. District Courts in both of Missouri’s federal districts have held that the statute is inapplicable in federal diversity cases because the Federal Rules of Civil Procedure “answer the same question.” See generally Davis v. ALS Express Trucking, Inc., 2022 U.S. Dist. LEXIS 140486. Plaintiffs’ counsel looking to avoid the new pleading requirements may start looking toward federal courts so long as parties are diverse. Plaintiffs have also been successful in limiting the statute’s application to only those cases filed after the statute’s trigger date of August 20, 2020. See generally Largent v. Pelikan, 628 S.W.3d 162 (Mo. App. E.D. 2021).

Looking Forward at Punitive Damages in Missouri

For the time being, it appears that Mo. Rev. Stat. 510.261.5 has survived initial constitutional tests. But plaintiffs’ counsel will certainly continue to bring forth challenges. The defense attorneys at Rasmussen Dickey Moore are prepared to employ all tools available to protect your business from punitive damages claims. Contact RDM today to discuss your case.

A biometric scan. Illinois' Biometric Information Privacy Act (BIPA) may allow for many claims against employers using biometric data.

By RoseAnn Sorce
 · November 2nd, 2022

Earlier this year, RDM member Nate Lindsey wrote about the ins and outs of the Illinois Biometric Information Privacy Act (BIPA). Enacted in 2008, BIPA allows individuals to make a claim against private entities that collect biometric data without first creating a publicly available policy on the data’s retention and destruction, obtaining the individual’s consent, and using reasonable care to protect the information gathered.

Since that article, Illinois courts have rendered multiple plaintiff-friendly decisions interpreting BIPA, increasing the risk for employers using their employees’ biometric data. Most recently, the first class action lawsuit brought under BIPA—Rogers v. BNSF Ry. Co.— was tried and ended in a jury verdict for the plaintiff class, which is expected to open the door for a flood of BIPA claims.

BIPA Creates Complications for Employers

BIPA is a plaintiff-friendly statute, evidenced by both its construction by the legislature and the courts’ interpretations of the Act. As one of just a few laws that afford a private right of action, any individual, whether an employee, customer, or visitor, can bring a claim against a private entity that collects or uses biometric data. Additionally, BIPA does not currently provide a statute of limitations, though the Illinois Supreme Court is set to address this issue in Tims v. Black Horse Carriers.

Most significantly, employees can bring civil claims against their employers who violate BIPA, as the Illinois Supreme Court held in McDonald v. Symphony Bronzeville Park, LLC, that such claims are not barred by the Worker’s Compensation exclusivity provisions. Further, the aggrieved individual is not required to show actual injury to recover statutory damages. In Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court held that any technical violation of BIPA is a “real and significant injury.”

Combined, these decisions made it easier for employees to bring civil claims against their employers, while simultaneously removing an important defense for employers, setting the stage for Rogers v. BNSF Ry. Co.

Rogers v. BNSF Ry. Co

In Rogers v. BNSF Ry. Co., Richard Rogers brought a BIPA claim against his former employer, BNSF Railway, alleging that the company failed to obtain his and other employees’ consent prior to collecting and storing their fingerprints. However, BNSF itself did not collect or store its employees’ biometric data; rather, it contracted this task out to a third party, Remprex, LLC.

BNSF argued that BIPA legislation did not authorize vicarious liability and filed a motion in limine contending that any argument that it could be held responsible for Remprex’s alleged failure to adhere to BIPA should be excluded. The Northern District of Illinois disagreed, finding that BIPA does not preclude vicarious liability under the common law doctrine of respondeat superior. The case advanced to trial and, after just an hour of jury deliberations, ended with a $228 million dollar verdict in favor of the plaintiff class.

The jury found that BNSF violated BIPA 45,600 times—one time per class member. However, a question remains: is each and every fingerprint scan a violation, or just the initial scan?

For businesses like BNSF that require employees to scan their fingerprints to enter facilities or clock in and out, this may mean multiple violations per employee per day, turning a million-dollar claim into a billion-dollar claim. The issue of when a claim accrues is set to be addressed by the Illinois Supreme court in Cothron v. White Castle System, Inc.

Implications for Illinois Businesses

As Rogers was the first case involving BIPA claims to go to trial and end in a plaintiff verdict, employers should expect to see an increase in BIPA claims brought by employees.

With this looming increase in lawsuits and potentially billions of dollars at stake, some insurers are attempting to avoid coverage by invoking certain exclusions in general liability policies, namely the Employment-Related Practices Exclusion, the Distribution of Material in Violation of Statutes Exclusion, and the Access or Disclosure of Confidential or Personal Information Exclusion. Decisions interpreting the applicability of these exclusions are inconsistent, and there has yet to be guidance from the Seventh Circuit Court of Appeals. Some insurers are also looking to add BIPA-specific exclusions to their policies.

In an uncertain and rapidly changing landscape, the best way to avoid liability and coverage issues is compliance. Entities that collect or use biometric data should ensure that their policies and procedures are up to date. The attorneys at Rasmussen Dickey Moore can help create and implement a policy on your company’s collection, use, and destruction of biometric data to keep your business compliant with evolving laws and out of the courtroom.