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2005 ANNUAL LAW UPDATE
EMPLOYMENT LAW
 

Prepared by: Kent L. Brown

1. ADA

Henderson v. Ford Motor Co., 403F.3d 1026 (8th Cir. 2005). Plaintiff had previously prevailed against Ford for number of claims and assisted others in doing so. Plaintiff was then injured in car accident and went on medical leave. Her medical leave expired for failure to update medical restrictions. Ford required a satisfactory reason or return to work in 5 days. Plaintiff submitted papers to Ford, but Employer claimed this as a request and required a medical evaluation. Plaintiff failed to do so and was terminated. Plaintiff claimed Ford failed to reasonably accommodate her and Employer argued claim was barred by 300-day statute. Plaintiff claimed time should be tolled and Court disagreed because she should had reason to suspect employer’s discriminatory motives so claims were time barred.

Strate v. Midwest Bancentre, 398 F.3d 1011 (8th Cir. 2005). Strate was a member of upper management and was on maternity leave with her newly born child with Downs Syndrome. Bank restructured its business and eliminated her position. She claims her disabled child was a factor in her termination. Employer claims decision was part of restructuring. Employer granted summary judgment. 8th Circuit held district court erred because the proximity between the birth and elimination of her job, eleven years of exemplary employment and the bank discouraging her from applying for a newly-created management position created a genuine issue of material fact.

Wong v. Regents of University of California, 2005 WL 1331126 (9th Cir. (Cal.)). Student with learning disability not protected by ADA because learning disability did not substantially limit a major life activity. Student successfully completed first two years of medical school with better than “B” average and had passed the national board examination without the benefit of special accommodation.

2. ADEA - SUPREME COURT DECIDES DISPARATE IMPACT CLAIMS ARE AVAILABLE

Smith v. City of Jackson, Mississippi, 125 S.Ct. 1536 (2005). The Court decided a case that asked whether disparate impact claims are cognizable under the ADEA. Four Justices agreed that such claims are available. Justice O’Connor and Justice Thomas disagreed.

Employer revised pay plan, granting raises to police officers and dispatchers. Officers with less than 5 years were given higher raises than those with more. Officers over 40 sued under ADEA, asserting disparate treatment and impact claims. 5th Circuit held impact claims are not recognized under ADEA. Supreme Court held disparate impact claims are recognized under ADEA, but held petitioners’ claim failed on the facts because the scope of disparate impact is narrower under ADEA than Title VII.

Court provided little guidance for future cases on how to interpret the ADEA provision that employers may use “reasonable factors other than age” for making their employment determinations. The Court distinguished this defense from the business necessity defense, suggesting that any real explanation would suffice under the ADEA. In other words, it looks like the Court technically found that disparate impact claims are allowed, but interpreted the standard as quite lenient toward employers as long as their explanation appears reasonable.

The Court makes clear that it applied Ward’s Cove’s standards to ADEA claims. Whether the third part of Ward’s Cove, that allows plaintiffs to prevail if they show there is an equally effective alternative the employer is not using, applies to RFOA cases isn’t entirely clear.

Stidham v. Minnesota Mining and Manufacturing, Inc., 399 F.3d 935 (8th Cir. 2005). Discusses criteria to analyze an ADEA reduction in force case.

3. APPEAL DEADLINE

In the Interest of N.A.B. and N.J.B., M.F.L. and D.C.L. v. N.H., 2005 WL 1388904, (Mo.App. W.D.). Motion for rehearing is deemed denied if not ruled by the court within 45 days. Appeal is due 10 days after automatic denial.

4. AT-WILL TERMINATION PROVISION TRUMPS IMPLIED COVENANT OF GOOD FAITH

Bishop v. Shelter Mutual Insurance Co., 129 S.W.3d 500 (Mo.App. S.D. 2004). Plaintiff had insurance agency contract with principal that was terminable at will. Plaintiff had no cause of action under implied covenant of good faith and fair dealing. Cause of Action lies only if termination violated public policy or statutory provision.

5. COMMISSIONS DUE AFTER TERMINATION

Clemons v. Zimmer Broadcasting Co., 159 S.W.3d 508 (Mo.App. S.D. 2005). Parties had no written contract and evidence did not clearly distinguish Plaintiff as either a manufacturer’s representative or a finder of business. On that record, Trial court correctly held Employer liable for commissions that Plaintiff earned before his termination. Plaintiff had done all that was required to secure payment, except to collect on the bills, which would be a minimal amount of work. Affirmed.

6. CONTROL DETERMINES EMPLOYMENT

Skillpath Seminars v. Summers, 2005 WL 756261 (Mo.App. W.D. 2005). Employment contract called Claimant an independent contractor, but Employer decided when, where, how Claimant performed his job. “Self-given labels are not determinative.” State from which Employer controls Plaintiff does not determine where wage credits belong. Claimant entitled to wage credits for work in other states because his base of operations was Missouri.

7. CORPORATIONS - MOTION FOR NEW TRIAL NOT SIGNED BY ATTORNEY IS A NULLITY

Schenberg v. Bitzmart, Inc. and Stealth Medialabs, Inc., 2005 WL 1395062 (Mo.App. E.D.). Corporations can only be represented by attorneys so motion for new trial sign by corporate official is ineffective.

8. DEFAMATION

State ex rel. Thomas Diehl v. Honorable John F. Kintz, 162 S.W.3d 152 (Mo. App. E.D. 2005). Citizen’s distribution of fliers labeling business as “trash terrorists” was not actionable.

9. DEFAMATION - INJURIOUS FALSEHOOD

State of Missouri ex rel. BP Products North America Inc. v. The Honorable John A. Ross, 2005 WL 1274399, (Mo. 2005). Cause of action for injurious falsehood seeks compensation for pecuniary loss as opposed to claim for defamation which seeks damage for loss of reputation. Statute of limitations is two years on defamation and five years on and injurious falsehood claim.

10. DISCRIMINATION JUDGMENT UPHELD IN WORKER’S COMP ALJ CASE BUT REVERSED BY MISSOURI SUPREME COURT

Igoe v. Department of Labor and Industrial Relations of the State of Missouri, 152 S.W.3d 284 (Mo. 2005). After applicant for administrative law judge position and legal advisor position was twice rejected, he filed a complaint alleging claims of discrimination based on age and sex, and retaliation, against the Department of Labor and Industrial Relations and the Division of Workers Compensation. The Circuit Court, City of St. Louis, Patricia L. Cohen, J., entered judgment on jury verdict in favor of applicant, awarded damages, and ordered that applicant be instated to an administrative law judge position. The Department and the Division appealed.

Holding: On transfer from the Court of Appeals, the Supreme Court, Michael A. Wolff, J., held that proper venue was in county in which applications were received and reviewed, interviews occurred and hiring decisions were made, rather than in the city in which some of the vacant positions were located. Reversed and remanded with directions.

11. DISCRIMINATION - RACIAL/ETHNIC

Eliserio v. United Steelworkers of America Local 310, 398 F.3d 1071 (8th Cir. 2005). Eliserio sued the Union for retaliation and hostile work environment under Title VII and Section 1981. District court granted summary judgment for the Union. Appellate court applied a modified McDonnell Douglas analysis to the retaliation claim, as union cannot subject an employee to adverse employment actions and found union’s motivation was not a legal excuse but a pretext. Held union was liable.

EEOC v. Trans States Airlines, Inc., 356 F.Supp.2d 984 (E.D. Mo. 2005). An Indian, Pacific Islander probationary pilot, who was also Muslim, was seen in a bar while in uniform and ecstatic over the September 11 events. TSA’s vice president ordered his termination and no reason was given for the dismissal. He denied being in uniform. EEOC found discrimination, but conciliation failed and he sued under Title VII. Trial court found TSA has fired other probationary pilots based on similar reports. Court also rejected September 11 attacks supported an inference of discrimination. There was insufficient evidence on termination due to race, ethnicity or religion. Summary judgment for TSA.

12. ELEVENTH AMENDMENT IMMUNITY WAIVED BY ACCEPTING FEDERAL FUNDS

Constantine v. Rectors and Visitors of George Mason University, 2005 WL 1384373 (4th Cir. (Va.)). Acceptance of federal funds conditioned upon waiver of immunity constitutes enforceable waiver.

13. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS - STANDARD OF REVIEW

Lagud v. Kansas City Board of Police Commissioners, 136 S.W.3d 786, (Mo. 2004). The prior state of law required that a court apply § 536.140 RSMo. to determine whether there was “sufficient, competent evidence in the record to warrant the making of an award.” Lagud reverses prior case law and required the court to review administrative decisions in the light most favorable to the agency’s decision.

14. PERSONNEL ADVISORY BOARD - EVIDENCE OF BACK PAY UNNECESSARY

Morgan v. City of St. Louis, 154 S.W.3d 6 (Mo.App. E.D. 2004). Employee need not present evidence of back pay or other benefits due until personnel board orders reinstatement. Tested sample is not positive for marijuana under personnel regulation unless lab report quantifies level of metabolite allegedly detected.

15. FELA INSTRUCTIONS LIMITED TO MAI

Clark v. Missouri & Northern Arkansas Railroad Co., 157 S.W.3d 665 (Mo.App. W.D. 2004). Trial court correctly rejected Employee’s proffered FELA instruction in favor of one that conformed with Missouri Approved Instructions “to the letter.” Trial court correctly rejected Employee’s proffered evidence of a federal regulation that had been superceded over a year before Employee’s injury and had nothing to do with the facts of his injury.

16. FELA CLAIM CLAIMANT’S FINANCES NOT RELEVANT

Ramsey v. Burlington Northern and Santa Fe Railway Company, 130 S.W.3d 646 (Mo.App. E.D. 2004), 125 S.ct 108 (U.S. Oct. 4, 2004). In Federal Employer’s Liability Act Claim, Trial Court need not admit evidence of Workers’ disability benefits and taxes that worker would have paid if he had continued working and retired. Evidence supported Employer’s liability because possibility of injury from work place condition was reasonably foreseeable. Remanded for reduction of award by amount of medical expenses that Employer paid under its Health and Welfare plan. Motion of Assoc of RR for leave to file a brief as amicus curiae granted. Petition for Writ of cert to Court of Appeals ED denied.

17. FIDUCIARY DUTY/DUTY OF LOYALTY - BREACH

Scanwell Freight Express STL, Inc. V. Chan, WL 2005 949693 (Mo. 2005). Former employee breached a duty of loyalty to Scanwell, but Supreme Court reversed and remanded because of instructional error jury instructions too broad. Proper jury instructions should have been: 1. Employee must not, while employed, act contrary to the employer’s interest; 2. Employee may agree with others to compete upon termination of employment and engage in planning and preparation to compete while employed; 3. But cannot, while still employed, engage in more than mere planning and preparation.

18. FIRST AMENDMENT

Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005). Employee was terminated because of statements made at board meeting on why taxpayers had not been notified of the tax ramifications of a merger of two school districts. Employer terminated her because her comments reflected poorly on community and placed the bank at risk of losing substantial customers. She sued bank for violating her right to free speech. $1.5 was awarded to Dossett, but trial court granted new trial sua sponte because verdict was excessive and result of passion and prejudice. Bank prevailed. District court did not err. 8th Circuit did find instructional error, because it failed to convey meaning of an official acting under color of law. Court distinguished Pickering v. Bd of Education, noting it dealt with public employee. Precedent made clear that a private actor may be liable for constitutional violations when conspiring with a state actor. In present case, there was evidence of private actor willingly participating with state officials and reached mutual understanding to achieve an illegal objective, as indicated in Dossett’s termination letter. Reversed on that count, but rejected Dossett’s claim for punitive damages.

IBEW, Local #1 v. St. Louis County, 117 F.Supp.2d 922, (E.D. Mo. 2000). Restriction on partisan political activities of county employees do not violate the First Amendment.

Bradford v. Huckabee, 394 F.3d 1012, 1016 (8th Cir. 2005). Resigning because of a policy dispute with superiors is not constructive discharge. The First Amendment and Pickering only protect speech in the person’s capacity as a citizen commenting on matters of public concern, not comments on matters of internal agency management or policy.

Koehn v. Indian Hills Community College, 371 F.3d 394 (8th Cir. 2004). Public employee may be terminated for discussing matters of public concern if he does so as an employee rather than a citizen or a tax payer. Discussions in an office regarding salaries were not protected because neither appropriateness or salaries nor misuse of public funds had been discussed. The public employee was just gossiping and so speech was not protected.

Bracy v. Lawson, 73 Fed.Appx. 889 (8th Cir. 2003). Email which was not purely job related and did not address matters of public concern was not protected speech under the First Amendment.

Washington v. Normandy Fire Prot. Dist., 328 F.3d 400 (8th Cir. 2003). Firefighter may be terminated for speaking at a public forum on matters of public concern (race issues) if speech creates disruption in the work place and interferes with the individual performing his job duties.

Coleman v. Board of Education, 324 F.Supp.2d 1048 (E.D. Mo. 2004). In order to establish a prima facie case under the First Amendment, a public employee who claims that an employment decision was made in retaliation for protected speech must show that: (1) she was engaged in constitutionally protected speech; (2) she was subjected to an adverse action or was deprived of some benefit; and (3) the protected speech was a substantial or a motivating factor in the adverse action. When speech impacts only an employee’s specific job or working conditions it will usually not be protected.

19. FMLA

Throneberry v. McGehee Desha County Hospital, 403 F.3d 972 (8th Cir. 2005). Plaintiff was asked to resign after developing mental health problems and later agreed on condition of receiving to severance benefits. Plaintiff had neglected some of her duties, which cost the hospital $40,000 in claims. Plaintiff sued for interference with her FMLA rights and failure to reinstate. Jury found for Plaintiff on interference claim, but not reinstatement. The court relied on Smith v. Diffee (10th Cir 2002), which stated an employer may in some circumstances lawfully interfere with and employee’s rights under FMLA, because an employer cannot be forced to retain an employee on FMLA leave who has no right to reinstatement. Therefore, Plaintiff did not prevail.

McBurney v. Stew Hansen’s Dodge City, Inc., 398 F.3d 998 (8th Cir. 2005). Plaintiff was fired for failing to return to work at end of FMLA leave and sued. Employer was granted Summary Judgment. Plaintiff lacked standing because no proof of actual damages. Plaintiff argued he was entitled to equitable relief because employer failed to reinstate him in same or similar position. Plaintiff waived this argument because raised it first time on appeal. 8th Circuit also rejected the retaliation claim. Court found no evidence of discrimination.

CNW Foods Inc. v. Davidson, 141 S.W.3d 100 (Mo.App. S.D. 2004). Whether employee voluntarily quit or was discharged is a question of fact. Employer did give Employee medical leave to recover from non-work-related injury and return to work under Family and Medical Leave Act. Employee is eligible for employment security benefits.

Callison v. City of Philadelphia, 128 Fed.Appx. 897 (3rd Cir. (Pa.)). Employer had a sick leave call in policy which required the employee to notify the employer upon leaving home and returning home while the employee was out on sick leave. Employee violated this policy. Subsequently, the employee obtained FMLA leave and during the course of this leave failed to comply with the sick leave call in policy. The employee was terminated. The Third Circuit held that nothing in the FMLA preempted the sick leave call in policy and the employer was free to terminate the employee for failing to notify the employer when the employee left and returned to his home while on FMLA leave.

20. HARASSMENT

LeGrand v. Area Resources for Community and Human Services, 394 F.3d 1098 (8th Cir. 2005). Father Nutt, member of ARCHS, made several explicit sexual advances toward employee. Employee notified supervisor who advised to document and seek EAP counseling. Company’s harassment policy advised employee to contact HR if not satisfied, which employee did not do. After 3rd incident, employee filed sexual harassment suit, took medical leave, and position was eliminated while off. ARCHS received Father Nutt’s resignation after EEOC investigation and disciplined supervisors for not following company policy. Employee brought suit in fed court claiming quid pro quo sex harassment and hostile work environment. Trial court rejected both claims. 8th circuit also found conduct not severe or pervasive, just inappropriate because not violent or overtly threatening.

McCurdy v. Arkansas State Police, 375 F.3d 762, (2004). Eighth Circuit held employer was not strictly liable for single incident of supervisor harassment despite being unable to prove second element of Ellerth/Faragher affirmative defense.

Williams and Conner v. Missouri Department of Mental Health, 407 F.3d 972 (8th Cir. 2005). Two employees of the Department of Mental Health sued for a hostile work environment under Title VII claiming their former supervisor asked inappropriate personal questions, exposed himself and offensively touched the employees. The state raised the affirmative defense that the employees’ failure to report the conduct was unreasonable. The Eighth Circuit held that because the Department promptly prevented and corrected the harassing behavior upon learning of it, the employees were not entitled to recovery because they had unreasonably failed to take advantage of preventative and corrective opportunities that were provided by the Department to avoid harm.

21. HOSPITAL - EMPLOYMENT RELATED NEGLIGENCE CLAIM NEEDS NO HEALTH CARE AFFIDAVIT AND NOT BOUND BY MEDICAL MALPRACTICE STATUTE OF LIMITATIONS

Meekins v. St. John’s Regional Health Center, Inc., 149 S.W.3d 525 (Mo.App. S.D. 2004). Employee brought petition alleging that faulty drug test was the basis for her dismissal. Appellate court affirms trial court’s dismissal of declaratory judgment count because Employee had a remedy at law and parties’ interests in drug test was not adverse. Appellate court reverses trial court’s dismissal of negligence count based on characterization as medical malpractice because drug test was not part of any physician/patient relationship and medical malpractice time limit does not apply.

22. HOSPITAL - REASONABLE BELIEFS SUPPORTED SUSPENSION OF PRIVILEGES

Joshi, M.D. v. St. Luke’s Episcopal-Presbyterian Hospital, 142 S.W.3d 862 (Mo.App. E.D. 2004). Constitutional evidentiary issues waived by failure to raise them at trial. Professional review action is presumed under Health Care Quality Improvement Act standards “unless... rebutted by a preponderance of the evidence.” Record showed that numerous complaints merited procedure, professional review body made reasonable effort to find facts, and only Ps resignation prevented hearing. Denying the Ds motion for attorney’s fees was not abuse of discretion.

23. NON-COMPETE AGREEMENTS

Systematic Business Services v. Bratten, 2005 WL 221541 (Mo.App. W.D. 2005). Restriction on practicing business with limitation on time or place was unreasonable and Appellate Court reverses Trial Court’s enforcement of it. Restriction on soliciting Employers’ customers for two years without limitation on geography was not unreasonable and Appellate Court affirms Trial Court’s enforcement of it. Transfer of Employee from subsidiary’s office to parent company’s office, and change of duties, did not constitute breach of contract, so as to defeat non-compete covenant, because parent and Subsidiary were not joint employers.

Roeder, M.D. v. Ferrell-Duncan Clinic, Inc., 155 S.W.3d 76 (Mo.App. S.D. 2004). Trial court did not err in refusing to enforce covenant not to compete because it correctly found that employer had materially breached contract attempting to assign personal service contact to third party without Employee’s consent. “One of the fundamental purposes of this state’s public policy prohibiting assignment of personal services contracts is to protect an employee’s right to choose the person or entity for whom such services will be performed.” Record supported trial court’s findings that Employee did not waive breach.

Victoria’s Secret Stores, Inc. v. Weikel, 157 S.W.3d 256 (Mo.App. E.D. 2004). Trial court correctly held that Employee’s work for another retailer did not violate covenant not to compete. Retailer did not compete with Employer in any “meaningful or material” way because they served different markets. Employee’s familiarity with Employer’s confidential information was of no interest to retailer. Exclusion of cumulative and repetitive testimony was not prejudicial.

24. JONES ACT CLAIM - NO PHYSICAL IMPACT REQUIRED

Duncan v. American Commercial Barge Line, LLC, 2004 WL 1661117 (Mo.App. E.D. 2004). FELA/Jones Act action was not barred because “cause of action for an occupational disease accrues when the Plaintiff knows or should have known, in the exercise of reasonable diligence, the critical facts of his injury and its cause.” Acts allow recovery for injuries suffered without physical impact. Foreseeability is not a necessary element to every recovery under the Acts. Pain and suffering from heart disease before fatal heart attack were compensable.

Shelby v. Hayward Baker, Inc., 128 S.W.3d 164 (Mo.App. S.D. 2004). When worker arrived at job site, no one else was there, so he left a note, which Supervisor took as resignation. Worker cannot avoid the disqualification for employment security benefits because his assumption was wrong, and that error is not attributable to either his work or his employer. Worker was obliged to discuss his concerns about whether there was any work for him to do that day with his employer before leaving the job-site and going home.” Denial of benefits affirmed.

25. PREVAILING WAGE CALCULATION EXCLUDES AMOUNTS PAID TO ILLEGALS

HTH Companies, Inc. v. Labor and Industrial Relations Commission, 154 S.W.3d 358 (Mo.App. E.D. 2004). Doctrine of abatement focuses not on whether multiple courts receive appeals of same order, but whether appeals seek same relief. Labor and Industrial Relations Commission properly omitted from prevailing wage calculation apprentices, because they are not workmen within statutory definition, and illegal aliens, because they are ineligible for work. Such decision was not an unpublished rule.

26. PREVAILING WAGE - OCCUPATIONAL TITLE RULE GOVERNS

Purler-Cannon-Schulte, Inc. v. City of St. Charles, 146 S.W.3d 31 (Mo.App. E.D. 2004). Department of Labor and Industrial Relations required payment of pipefitter wages as prevailing wage under Occupational Title Rule. Rule does not violate prevailing Wage act because it is based on actual wages paid in the marketplace. Rule drafting error does not defeat drafter’s plain intent. Indirect increase in expenses of local government is not a new or increased service or activity under Hancock Amendment.

27. PUBLIC DUTY DOCTRINE

State ex rel. Howenstine v. The Honorable Ellen S. Roper, 155 S.W.3d 747.

Green v. Missouri Department of Transportation, 151 S.W.3d 877 (Mo.App. S.D. 2004).

28. WRONGFUL DISCHARGE/RETALIATION

Bishop v. Heartland Chevrolet, Inc., 152 S.W.3d 893 (Mo.App. W.D. 2005). Bishop was fired while on workers’ compensation. Bishop received judgment in his favor and settled with Heartland before Employer’s time to appeal expired. Heartland’s attorney held onto the check until a lien was resolved, attorney was fired, and Heartland refused to tender the check. Bishop filed action to enforce settlement agreement. Court ordered check be delivered. Heartland appealed because no settlement had been agreed upon. Court dismissed the appeal and ordered tender of check, but rejected Bishop’s motion for sanctions.

29. WHISTLE-BLOWER MADE SUBMISSIBLE CASE

Dunn v. Enterprise Rent-A-Car Co., 2005 WL 831599 (Mo.App. E.D. 2005). To make a case for wrongful termination under the public policy exceptions to employment at will, Plaintiff need not show that Employer actually got around to violating the law, but must be able to cite the law that the Employer’s conduct would violate.

LABOR AND INDUSTRIAL RELATIONS CASES

30. NO APPEAL FROM FAVORABLE AWARD

Robinson v. Mitch Murch’s Maint. Co., 143 S.W.3d 720 (Mo.App. E.D. 2004). Appellate court has no jurisdiction to hear an appeal from a Claimant whose claim for employment security the Labor and Industrial Relations Commission has affirmed. Dismissed.

31. NO LATE APPEAL FROM LABOR AND INDUSTRIAL RELATIONS COMMISSION DECISION

Manka v. Shop N Save Warehouse Foods, 157 S.W.3d 386 (Mo.App. W.D. 2005). Claimant’s untimely appeal to Labor and Industrial Relations Commission vests no jurisdiction in Commission, nor in Appellate Court. “Our only recourse is to dismiss her appeal.”

Anderson v. Pro-Mold, Inc., 155 S.W.3d 808 (Mo.App. E.D. 2005). Statutes allow no provision for late filing of appeal from decision of Labor and Industrial Relations Commission denying unemployment benefits.

Williams v. Mitch Murch’s Maint. Management Co., 153 S.W.3d 875 (Mo.App. E.D. 2005). Appellate court dismisses appeal sua sponte filed out of time from Labor and Industrial Relations Commission.

Zehnle v. Gadzooks, Inc., 149 S.W.3d 911(Mo.App. E.D. 2004). Appellant did not receive Appeals Tribunal’s decision timely because she changed addresses twice since starting her employment security action. Consequent late filing of appeal to Labor and Industrial Relations Commission deprived Commission or jurisdiction to her appeal. Dismissed.

Tate v. Board of Education of St. Louis City, 144 S.W.3d 349 (Mo.App. E.D. 2004). Neither Labor and Industrial Relations Commissions nor Appellate Court has jurisdiction to hear an appeal from an Appeals tribunal if it is filed out of time, even by one day.

Coleman v. Missouri Professional Staffing Service Home Health, Inc., 144 S.W.3d 862 (Mo.App. E.D. 2004). Appellate court has no jurisdiction to hear an appeal from labor and Industrial Relations Commission if it is filed out of time, even by one day.

Haislar v. Haislar Construction Co., 142 S.W.3d 210 (Mo.App. E.D. 2004). Appellant produced no timely, signed application to Labor & Industrial Relations Commission. Appeal dismissed.

Mack v. Social Security Administration, 141 S.W.3d 85 (Mo.App. E.D. 2004). Labor and Industrial Relations Commission has no jurisdiction to hear an untimely appeal from Appeals tribunal. Appellate court has no jurisdiction if Commission had no jurisdiction.

Rankin v. Pulaski Bank, 136 S.W.3d 849 (Mo.App. E.D. 2004). Untimely appeal to Labor and Industrial Relations Commission deprives Commission and Appellate Court jurisdiction. “Even if a claimant misunderstands the advice provided by the unemployment office, or even if the advice is erroneous, the unemployment statutes do not provide any mechanism for filing a late application for review with the Commission.” Dismissed.

Scherr v. General Nutrition Center, 125 S.W.3d 35 (Mo.App. E.D. 2004). Appeals tribunal denied employment security benefits to Claimant. “Claimant’s failure to file his application for review in a timely fashion with the Labor and Industrial Relations Commission divested both the Commission and this Court’s jurisdiction.

32. DENIAL OF UNEMPLOYMENT BENEFITS FOR MISCONDUCT REVERSED

Hoover v. Community Blood Center, 153 S.W.3d 9 (Mo.App. W.D. 2005). Worker’s errors on the job showed poor judgment, but no improper motive or willful violation of employer’s rules that justifies denial of unemployment benefits as misconduct. “There is a ‘vast distinction’ between the violation of a rule of an employer that would justify the discharge of the employee and a violation of such rule that would warrant a determination of misconduct connected with the employee’s employment, so as to disqualify him or her for unemployment compensation benefits.”

33. UNEMPLOYMENT - EMPLOYEE CAN ALSO BE CONTRACTOR

National Heritage Enterprises, Inc. v. Division of Employment Security, 2005 WL 1330723 (Mo.App. W.D.). An employee can also be an independent contractor if he performs work for the same employer if the employer does not exercise control over the manner in which the additional work is performed.

34. EMPLOYEE DID NOT VOLUNTARILY LEAVE WORK

Taylor v. Division of Employment Security, 153 S.W.3d 878 (Mo.App. S.D. 2005). Employee wanted a transfer, but Employer forced her to resign instead. “There was not evidence that Employee ‘planned to move’ without acquiring a position with Employer in a different location, nor that she ‘intended to move’ without such a position.” Disqualification reversed.

35. PART-TIME STUDENT INELIGIBLE FOR EMPLOYMENT SECURITY BENEFITS

Wester v. Missouri Department of Labor and Industrial Relations, 134 S.W.3d 757 (Mo.App. S.D. 2004). Student’s restriction of work hours–those that did not conflict with her class schedule–made her not “available for work,” because education, not labor, was her primary purpose.

36. NO GOOD CAUSE FOR LEAVING WORK

Winco Manufacturing, Inc. v. Salvatore Capone, 133 S.W.3d 555 (Mo.App. E.D. 2004). Employee refused to take drug test and left work, which constitutes voluntarily terminating his own employment without good cause.

Partee v. Winco Manufacturing, Inc., 141 S.W.3d 34 (Mo.App. E.D. 2004). Even if Supervisor used “distasteful, abhorrent comments” alleged by Employee, his voluntary termination was not based on adequate cause because he did not pursue his requested remedy of transfer in good faith.

37. FINDING OF NO MISCONDUCT UPHELD

Rapid Roberts Inc. v. Potter, 125 S.W.3d 395 (Mo.App. S.D. 2004). Substantial and competent evidence supported finding that Employee engaged in no misconduct connected with work. Labor and Industrial Relations Commission’s award of employment security benefits affirmed.

Ward v. Acoustiseal, Inc., 129 S.W.3d 392 (Mo.App. W.D. 2004). Employment security benefits were unavailable to employee who was absent because she was in jail on warrant for failure to appear in court as scheduled. By not appearing at a court proceeding, which resulted in the issuance of an arrest warrant, her subsequent arrest, incarceration, and absence from work, Employee voluntarily resigned from her employment. Denial of benefits affirmed.