The case of a union worker whose former employer accepted his union referral notice but didn’t re-hire him will hear from the high court whether his prior workers’ compensation claim rights still apply to him.
“This is an unusual situation because most of the time, when someone has severed from employment for reasons such as this, they don’t want to come back and work there ever again,” Judge Mary R. Russell said during Oct. 26 oral arguments.
Kenneth Kinney of Ralston Kinney in Kansas City represents John Lisle, a journeyman electrician who is part of the International Brotherhood of Electrical Workers. Kinney agreed with Russell if not for the union presence framing the interaction.
“Perhaps it’s not unusual for a union setting, where construction workers get a job,” Kinney said. “The job will end, and then there’s going to be job postings again.”
Lisle was working on Meyer Electric Company’s Chillicothe Elementary School construction project in 2017 and alleges that a day after he filed an injury report a year later, his work ended in 2018.
Lisle filed a workers’ compensation claim in Cole County less than two weeks later, alleging the company wrongfully discharged him for exercising his rights. While the lawsuit was pending, Meyer Electric posted a new journeyman electrician job for a Carrollton High School project. Lisle applied and received a union referral.
According to Lisle’s brief, a union business agent called the foreman listed on the job posting with Lisle present, and the foreman “said he would ‘love’ to have Lisle come back to work because he was a ‘good worker.’”
The foreman revoked that acceptance 14 minutes later via text, claiming a supervisor told him not to hire Lisle. The foreman later testified that “he’s never experienced an employee not being allowed to work after receiving a Referral.”
The job Lisle applied for remained vacant until the following year. Meyer Electric instead gave the job to a different union worker who quit his job without notifying his prior employer, for which he had worked four years, though he had never spoken with Meyer Electric to confirm his employment.
As a result, Lisle filed a new petition alleging that the company could not refuse to re-hire him because of an ongoing claim. Meyer Electric moved for summary judgment because Lisle was not an employee at the time, and Lisle appealed.
Kinney said that the language of Chapter 287 has “absurdities” where only a former employee could make a claim like this, and yet the statute’s present-tense definitions of “employee” and “employer” suggest that a former employee cannot bring that claim to court.
Meyer Electric, represented in oral arguments by David R. Wallis of Rogers Ehrhardt Attorneys at Law in Columbia, claims the statute governing workers’ compensation claimant rights does not protect former employees.
Judge Paul C. Wilson, speaking to Meyer’s counsel, noted the similarities in the parties’ arguments.
“You understand that that sounds very much like his argument, that neither of you are willing to live entirely with the plain language of the statute?” Wilson said.
“It’s that distinct, discrete relationship between that employee and that employer which controls everything in Chapter 287,” he said.
Wallis ended with a note that issues in the statute may be best resolved in the legislature, not in the courts.
Upon rebuttal, Kinney said the lack of clear language including a former employer is part of the issue.
“Our argument has been the whole time that if employer means that in the second sentence, if we read this statute as a whole, there is no reason for it to mean something completely different one sentence before.”
Judge Zel Fischer asked Kinney if another employer could be held similarly liable if the primary employer shared information on an employee with a reputation for filing workers’ compensation claims. Kinney said it could be possible with enough evidence that the worker would have otherwise been hired.
“If former employees aren’t protected, Meyer Electric could put in their handbook, ‘You have the right to file a work comp claim and we won’t fire you, but if your job ends, you will never work here again,’” Kinney said. “That goes against the plain language of any attempt of this particular statute.”
The case is Lisle v. Meyer Electric Company, SC99670.
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