Missouri: “Show Me” the Comp Files

Missouri is back in the news as the Senate and Governor once again debate whether it is reasonable for an employer to be able to promptly determine if a job applicant has prior open or closed worker’s compensation cases.

There they go again.

On Feb. 13, 2014 the Senate passed Bill 526 (lexis.com) Bill 526 (Lexis Advance) that would require the Division to maintain a data base of claims and allow employers to check whether job applicants have any prior open or closed claims. The claims records can only be retrieved by an employer during a pre-hire period and with written consent.   An employer cannot compel release of the information  as a condition of employment. The Senate passed a similar bill last year, SB 34 (lexis.com) SB 34 (Lexis Advance), which was vetoed by Gov. Nixon and there was insufficient support of only 90 votes in the House to override the veto.  

So what’s the big deal, anyway?

Gov. Nixon’s contends a database would “mislead” employers that it is okay to look as a basis to make a hiring decision.  The access to records already exists; it is just slow.  A slow and inefficient state procedure  protects the privacy of citizens and dissuades employers from even trying.   To protect “privacy”, Missouri currently requires a cumbersome procedure that takes about two weeks and requires an employer to attest that a conditional job offer has already been made, that there is no violation of ADA, and the potential employee knowingly consents in a notarized statement.

Missouri recognizes a cause of action under 287.780 (lexis.com) 287.780 (Lexis Advance) for discriminating against people for exercising comp rights with former employers.  “The statute permits employees in Hayes' position to file suit against an employer alleging that the employer discharged them for previously filing a workers' compensation claim against a former employer.”  Hayes v Show Me Believers, 192 S.W.3d 706 (Mo. 2006) (lexis.com) 192 S.W.3d 706 (Mo. 2006) Lexis Advance) (reversing a summary judgment for the employer).

A web interface is more efficient than the current system in Missouri that still allows employers to access the same records, but involves Luddite procedures of promises that no one is asking for the wrong reason.   If the concern is about privacy, then have employers can check a box on the computer screen attesting whether they are positive up to no good. This isn’t exactly cutting edge technology.

The real fault of SB 526 is not an invasion of privacy but that it does not go far enough to allow greater transparency.  There is no reason the Illinois model could not work in Missouri.

Missouri workers have limited privacy expectations in their civil and criminal records and those records can be accessed by anyone and not just in the pre-hire stage.    Illinois, for example, allows on-line access to both comp dockets with the names of parties involved (not available in Missouri) and a history of employers and employees whether cases are open or closed.  There is no indication that access has deprived Illinois residents of obtaining jobs.   Probably 9 out of 10 employers in Illinois don’t even know the database exists.

Some applicants may have a lot of claims because they have a lot of injuries due to the nature of their prior job and not due to the character of the applicant.  That doesn’t mean the applicant is an insurance risk or not capable of performing the current job.  Job screening doesn’t do anything to stop the catastrophic injury but it may do a lot to flag the frequent filer who wants to pimp the system.  

 Let’s assume for the sake of argument that most employers act in good faith and will hire the best applicant if they have the skills and experience for the job regardless of the claims background.    The real privacy fight may not be over the skilled applicant but to protect the unskilled applicant.  Many employers do not avail themselves of existing resources to screen higher risk applicants such as checking references, drug testing, checking social media footprints, or requiring pre-employment physicals or making basic inquiries to explain conspicuous gaps in employment history.  Anyone who hires unskilled workers in certain industries knows that it is rare to find job applicants that don’t have some skeletons in the closet.    Sometimes a position has to be filled.  Bad hiring procedures sometimes make bad claims.  Some hiring managers fill slots, hold their nose, and hope for the best.  That’s a problem that SB 526 will never fix. 

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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