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What are the requirements relating to advertising open positions?
The Missouri Human Rights Act mirrors Title VII and Equal Employment Opportunity Commission regulations regarding limitations on employment advertisements. It is a violation of the act for any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication, use any form of application for employment, or make any inquiry in connection with prospective employment which expresses, directly or indirectly, any limitation, specification, or discrimination based on:
- national origin;
- age (40 to 69 years old); or
A number of Missouri cities and counties have local ordinances prohibiting employment discrimination on the basis of sexual preference and gender identity, which presumably would expand the list of protected characteristics above for the purposes of job advertisements.
What can employers do with regard to background checks and inquiries?
(a)Criminal records and arrests
The Missouri Commission on Human Rights’ guide to pre-employment inquiries prohibits inquiry into arrest records. Employers should not take adverse employment action based on actual convictions unless substantially related to an applicant’s ability to perform a specific job, although there are exceptions for:
- teachers and other school employees;
- school bus drivers;
- mental health workers;
- healthcare employees; and
- those working with certain at-risk populations.
Employers are prohibited from disqualifying or discharging an applicant or employee solely on the basis of a felony conviction, even in certain regulated areas such as activities for which a license is required (e.g., the liquor business) (R.S.Mo. §561.016).
Healthcare providers and employers must obtain a criminal background check on newly hired employees within two days of the date of hire. They must then determine whether the employee is on the employee disqualification list provided by the State Department of Social Services. They must also exercise due diligence in hiring employees for the healthcare field—meaning that they must make all reasonable inquiries to ensure that potential employees have not committed crimes. Healthcare providers and employers are prohibited from hiring persons who have committed a felony against another person or are on the employee disqualification list. A provider that violates this law may be guilty of a misdemeanor (R.S.Mo. §§660.315, 660.317). State law also prohibits employing persons convicted of certain offenses in a state licensed mental health facility where people are voluntarily or involuntarily detained (R.S.Mo. §630.170).
The Missouri Commission on Human Rights’ regulations prohibit employers from making pre-employment inquiries regarding an applicant’s physical or mental impairments. An employer may ask whether an applicant can perform specific job-related functions.
Pre-employment physical examinations to determine an applicant’s ability to meet minimum physical standards are permissible when:
- the exam is given to all applicants without regard to any impairments;
- the minimum standards relate to the ability to perform essential job functions; and
- the results of the exam are given the same consideration in employment decisions for all applicants regardless of impairment.
The use of genetic information (i.e., DNA and RNA) is generally prohibited in the employment decision-making process. However, if an employee gives written consent to obtain genetic information, an employer may use it if the use is directly related to the employee’s ability to perform assigned job duties. Genetic tests do not include information about:
- family history; or
- the results of routine physical measurements or examinations, including:
- blood or urine analysis;
- cholesterol tests;
- tests for human immunodeficiency virus;
- drug tests; or
- other tests commonly accepted in the medical field (R.S.Mo. §375.1306).
No state statute governs private sector drug and alcohol testing. Employers may implement workplace testing policies to include any form of testing, including pre-employment testing, as long as employees are made aware of the policy in advance, such as by posting or including the notice in an employee handbook or union contract.
Employers should not inquire into an applicant’s credit records unless they are job related. This includes information about credit rating, charge accounts, and bankruptcy. Otherwise, the requirements of the Fair Credit Reporting Act (15 U.S.C. §1681, et seq.) apply.
The Missouri Omnibus Immigration Act requires all employers to participate in the federal Basic Pilot program through which employers can verify that every applicant and employee has the right to work in the United States. Employers that hire illegal aliens have the opportunity to remedy the illegal hiring or face mandatory suspension of the employer’s state and local business license. The Missouri Omnibus Immigration Act also makes it illegal for employers to deduct as a business expense any wages paid to illegal aliens. State agencies are required to audit all contractors to ensure contractor employees are eligible to work in the United States. An agency that finds that a contractor is employing individuals who are not eligible to work in the United States may terminate the contract and suspend or debar the contractor from further business with the State of Missouri.
No law prohibits an employer from inquiring into an applicant’s social media use, requiring passwords, or otherwise reviewing the applicant’s social media sites. Legislation regulating employers in this regard was introduced and passed by the House of Representatives in the 2015 legislative session, but was not voted on by the Senate.
Wage and hour
What are the main sources of wage and hour laws in your state?
The main source of Missouri’s wage and hour laws is the Revised Statutes of Missouri, Title 18, Chapter 20 (Mo. Rev. Stat §§ 290.010-.152, 290.500-.530).
What is the minimum hourly wage?
Currently, the minimum wage is $7.65 per hour. Missouri adjusts its minimum wage yearly to account for fluctuations in the cost of living. Each January, Missouri updates its minimum wage in accordance with the Consumer Price Index (Mo. Rev. Stat. § 290.502). The cities of St. Louis and Kansas City have proposed increases to the minimum wage by city ordinance or public referendum. Various groups oppose these local efforts. A state statute that would prohibit such increases was passed by the 2015 Missouri legislature, but vetoed by the governor. An attempt to override that veto is expected when the legislature reconvenes in September 2015.
In the event that the Fair Labor Standards Act provides a higher minimum wage than Missouri state law, covered employers must pay the Fair Labor Standards Act rate. However, the Fair Labor Standards Act will not be used to allow wage payments lower than the Missouri state minimum (Mo. Rev. Stat. § 290.502).
Exceptions to the basic minimum wage requirement exist when:
- an employee receives gratuities in addition to wages, in which case the minimum hourly wage is 50% of the regular requirement (currently $3.25 per hour), plus any amount necessary to bring the total, post-gratuity wage to the minimum hourly rate (currently $7.50 per hour);
- an employee receives goods or services as compensation—incident to employment and without the exercise of discretion—in which case the minimum wage requirement is the amount necessary to cover the difference between the fair market value of the goods or services and the regular minimum wage;
- an employer is engaged in agriculture and meets the specific requirements for exemption under Mo. Rev. Stat. § 290.507, in which case the minimum wage law does not apply;
- an employer engages workers with disabilities pursuant to a regulation from the director of the Department of Labor and Industrial Relations, in which case the minimum wage law does not apply, unless the affected employees maintain a production rate within the parameters required of other employees; or
- an employer engages learners or apprentices pursuant to a regulation from the director of the Department of Labor and Industrial Relations, in which case the rate of pay cannot be lower than $0.90 below the minimum wage (or, in 2014, $6.60 per hour) (Mo. Rev. Stat. §§ 290.500, 290.502, 290.512(1), 290.515, 290,517).
For the purposes of Missouri minimum wage laws, an individual is not an “employee” when that individual:
- works in an executive, administrative, or professional capacity;
- engages with an educational, charitable, religious, or non-profit organization where there is no employment relationship or where the services are voluntary;
- is a foster parent;
- works for a youth camp for fewer than four months per year;
- works for an educational, charitable, or non-profit organization’s conference center;
- is engaged by an educational organization that substitutes work for tuition fees, housing costs, or other academic expenses;
- occasionally works at a private residence for no more than six hours at a time;
- has a disability and works at a certified sheltered workshop;
- babysits on a casual basis;
- works for a railroad employer subject to 49 U.S.C. § 10101;
- casually or intermittently works as a golf caddy or newsboy or newsgirl;
- earns sales commissions and maintains hours and employment locations that are not substantially employer controlled;
- is a “state employee,” as defined in 29 U.S.C. § 203(e)(2)(C)(i)-(ii);
- works for a retail or service business that has an annual gross sales total of less than $500,000;
- is an incarcerated offender; or
- works for a small newspaper, as described in 29 U.S.C. § 2139(a)(8) (Mo. Rev. Stat. § 290.500).
What are the rules applicable to final pay and deductions from wages?
If an employee is discharged, the employer must pay the full wages earned, without deduction, on the day of discharge. No similar provision exists for employees who voluntarily quit (Mo. Rev. Stat. § 290.110).
Corporations doing business in Missouri must provide their employees with a monthly statement showing any deductions (Mo. Rev. Stat. § 290.080).
Missouri regulations provide a non-exhaustive list of goods and services that might be deductible as credit toward minimum wage payment if:
- they are for the employee’s private benefit;
- the employee voluntarily receives them; and
- they do not reduce the employee’s wages below the minimum hourly wage (Mo. Code Regs. § 30-4.050).
Hours and overtime
What are the requirements for meal and rest breaks?
Missouri has no specific requirements for either meal or rest breaks.
What are the maximum hour rules?
Missouri law states that employees may work a maximum of 40 hours per week, after which employers must pay time-and-a-half compensation. Missouri law further specifies that it should be interpreted in line with the Fair Labor Standards Act (Mo. Rev. Stat. § 290.505).
How should overtime be calculated?
Overtime pay must be no less than one-and-a-half times (or 150% of) the employee’s regular hourly pay (Mo. Rev. Stat. § 290.505).
What exemptions are there from overtime?
Instead of the 40 hours per week threshold, amusement or recreation business employers must pay time-and-a-half overtime wages for any hours worked in excess of 52 hours per week (Mo. Rev. Stat. § 290.505(2)).
Missouri overtime requirements do not apply to classes of employees who are exempt from the Fair Labor Standards Act or for whom the act provides a tailored overtime calculation formula (Mo. Rev. Stat. § 290.505(3); 29 U.S.C. §§ 207, 213).
What payroll and payment records must be maintained?
Employers subject to the Missouri Minimum Wage Law must keep a record of each employee’s:
- job description;
- pay rate;
- actual pay amount per pay period; and
- actual hours worked each day and each week.
Employers must also maintain a record of any goods and services that they provide to employees (Mo. Rev. Stat. § 290.520).
Employers must keep these records for a minimum of three years, and must keep them on or about the employment premises or at another suitable location (Mo. Rev. Stat. § 290.520).
Employers must open these records for the director of the Department of Labor and Industrial Relations at times made by appointment. If employers keep these records out of state, they must make them available upon demand (Mo. Rev. Stat. § 290.520).
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