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Key considerations Which issues would you most highlight to someone new to your state? Mississippi recognizes at-will employment. However, some exceptions exist, including a narrow public policy exception carved out by the Mississippi Supreme Court which governs retaliatory discharge in certain instances. While Mississippi has few state labor and employment discrimination laws, there several worth mentioning.
Mississippi has no law regulating smoking in the workplace, but it is unlawful under state law for employers to require as a condition of employment that any employee or applicant abstain from using tobacco products during non-working hours, provided that employees comply with applicable laws or policies regulating smoking on the employer's premises during working hours (Miss. Code Ann. § 71-7-33).
Mississippi also has a state statute directed at accommodations for breastfeeding. The law provides that no employer can prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer (Miss. Code. Ann. § 71-1-55).
Mississippi also has a state statute limiting employers’ ability to prevent employees from storing firearms in their locked automobiles while parked on employer property (Miss. Code Ann. § 45-9-55). The Mississippi Supreme Court has interpreted this provision to permit a suit for wrongful discharge against any employer found to have terminated or disciplined an employee for having a firearm in their locked automobile while it was parked in the employer’s parking lot (see Swindol v. Aurora Flight Sciences Corp., 2016 WL 1165448 (Miss. March 24 2016)).
Mississippi has no laws governing minimum wage or overtime; thus, federal law controls. While there is a law in Mississippi governing frequency of pay, it only covers employers engaged in manufacturing that employ 50 or more employees and public labor or public service corporations (e.g., utilities). This law does not apply to individuals employed in bona fide executive, administrative, or professional capacities (Miss. Code Ann. 71-1-35).
What do you consider unique to those doing business in your state? Mississippi state laws governing labor and employment are rare. Mississippi is a right to work state. Further, union activity in Mississippi is not prevalent and is limited to a few sectors.
Is there any general advice you would give in the labor/employment area? Employers should follow all federal laws and review the few state laws governing labor and employment. Further, employers should ensure that all employment-related decisions are based on a legitimate business reason. Document everything relating to performance, discipline, and termination. Treat employees fairly.
Emerging issues What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy? Emerging trends include efforts to expand the narrow public policy exception to Mississippi’s at-will employment doctrine and to impose liability on employers under an invasion of privacy theory of liability. There is also significant interplay between state firearm legislation and employment issues. Mississippi has bring your gun to work and open carry laws that make the parameters uncertain as regards whether and when public and private sector employers may prohibit firearms on their premises (see Swindol v. Aurora Flight Sciences Corp., 2016 WL 1165448 (Miss. March 24 2016)).
Proposals for reform Are there any noteworthy proposals for reform in your state? As part of the 2013 legislative session, a bill was proposed that would allow two teachers or other employees per public school to carry concealed weapons. The bill did not pass and was not revived in 2014.
In the 2016 legislative session, a bill was proposed that would expand protections and entitlements for breastfeeding mothers in the workplace. The bill did not pass.
Answering a certified question from the Fifth Circuit, the Mississippi Supreme Court held that an employer may be held liable for wrongful discharge if it terminates or disciplines an employee for having a firearm in his locked automobile (seeSwindol v. Aurora Flight Sciences Corp., 2016 WL 1165448 (Miss. March 24 2016)).
State-specific laws What state-specific laws govern the employment relationship? No state-specific laws govern the employment relationship, other than common law at-will employment rules.
Who do these cover, including categories of workers? These cover all workers except workers employed under a contract for a specific period and those exempt from the at-will employment rules.
Misclassification Are there state-specific rules regarding employee/contractor misclassification? Employee/contractor misclassification issues arise only in unemployment compensation and workers’ compensation matters.
Contracts Must an employment contract be in writing? An employment contract need not be in writing.
Are any terms implied into employment contracts? No terms are implied within an employment contract.
Are mandatory arbitration agreements enforceable? Mandatory arbitration agreements are enforceable in Mississippi.
How can employers make changes to existing employment agreements? The parties must mutually agree to any changes made to existing employment agreements.
Advertising What are the requirements relating to advertising open positions? Mississippi has no statutory authority addressing the advertisement of open positions.
Background checks What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests Mississippi does not require all employers to conduct background checks on all prospective employees. Rather, the particular job and industry will dictate whether special circumstances require a reasonable employer to check an applicant’s criminal background. For example, the State Department of Education must obtain current criminal records, background checks, and current child abuse registry checks on all persons applying for a position as a school attendance officer (Miss. Code. Ann. § 37-13-89). Similarly, criminal background checks are also required for persons associated with child residential facilities (see Miss. Code Ann. § 43-15-6). When a background check is used in the context of hiring, applicants who have expunged criminal records cannot be refused employment for denying the existence of a criminal history.
(b) Medical history Mississippi has no laws prohibiting an employer from requiring an applicant to undergo a pre-employment medical screening.
(c) Drug screening Employers may require job applicants to submit to a drug and alcohol test as a condition of employment and may use an applicant’s refusal to submit to a test or positive test results as a basis for refusing to hire him or her (see Miss. Code Ann. § 71-7-5(b)). However, employers must give job applicants notice of the possibility of drug and alcohol testing and pay for the tests.
(d) Credit checks Mississippi does not prohibit employers from performing a credit check on potential employees. However, if credit checks are used, the employer must disclose and report whether it intends to use the credit reports as part of the hiring process.
(e) Immigration status Employers in Mississippi can only hire employees who are legal citizens of the United States or legal aliens (Miss. Code. Ann. § 71-11-3). Accordingly, Mississippi employers must register with and use the status verification system to verify the federal employment authorization status of all newly hired employees.
(f) Social media Mississippi has no statute addressing the role of social media accounts in hiring.
(g) Other Mississippi has a nepotism policy (see Miss. Code. Ann. § 25-1-53). Under this policy, it is:
“unlawful for any person elected, appointed or selected in any manner whatsoever to any state, county, district or municipal office, or for any board of trustees of any state institution, to appoint or employ, as an officer, clerk, stenographer, deputy or assistant who is to be paid out of the public funds, any person related by blood or marriage within the third degree.”
The prohibition against nepotism in municipalities is limited to appointment to, or employment in, certain positions or jobs, not to contracts with the municipality.
Wage and hour
Pay What are the main sources of wage and hour laws in your state? Mississippi state law addresses only a few limited issues in the area of wage and hour law. The Mississippi Code is silent on most topics in employment law, meaning that federal employment laws primarily govern Mississippi employers and employees. The state agency responsible for employment issues is the Mississippi Department of Employment Security, but its activities are focused primarily on providing a list of job opportunities in Mississippi, handling equal employment opportunities, and administering state unemployment benefits.
What is the minimum hourly wage? Because Mississippi has no minimum wage law, eligible employees must be paid either the current federal law minimum wage or any specific municipal or county minimum wage that has been enacted—whichever is higher.
What are the rules applicable to final pay and deductions from wages? Mississippi has no law governing when employers must pay final wages to employees who have been separated from employment. In addition, Mississippi has no laws governing what deductions an employer may take from an employee’s paycheck.
Hours and overtime What are the requirements for meal and rest breaks? Mississippi has no law requiring employers to provide employees with rest periods, breaks, or meal periods. However, employers in Mississippi may not prevent employees from expressing breast milk during any meal period or other break period provided by their employer (Miss. Code Ann. § 71-1-55).
What are the maximum hour rules? Mississippi has no general maximum hour rules. However, Mississippi law provides that no person over 14 years of age and under 16 years of age can work in a mill, cannery, workshop, factory, or manufacturing establishment for more than eight hours per day, 44 hours per week, or be employed or detained in any such establishment between the hours of 7:00 p.m. and 6:00 a.m. (Miss. Code Ann. § 71-1-21).
Additionally, Mississippi municipalities that have a paid fire department—whose personnel are actively and exclusively engaged in fire duty—cannot require members of the department (excluding the chief officer) to remain on active duty for an entire 24-hour period. The fire department personnel must be divided into two platoons or shifts, one to perform duties in the daytime and the other to perform duties at night. Neither platoon or shift can be required to remain on active duty for more than 14 hours per day, except in cases of urgent and extreme necessity (Miss. Code Ann. § 21-25-7).
How should overtime be calculated? Mississippi has no minimum wage or overtime laws.
What exemptions are there from overtime? Mississippi has no minimum wage or overtime laws.
Record keeping What payroll and payment records must be maintained? Mississippi has no law requiring employers to keep employment-related documents for any specific length of time.
Discrimination, harassment and family leave
What is the state law in relation to: Protected categories
(a) Age? Mississippi has not enacted a comprehensive anti-discrimination statute that covers private employers and employees. However, employers that employ 15 or more employees are governed by Title VII and the Americans with Disabilities Act. Employers with 20 or more employees are governed by the Age Discrimination in Employment Act.
(b) Race? Mississippi has not enacted a comprehensive anti-discrimination statute that covers private employers and employees. However, employers that employ 15 or more employees are governed by Title VII and the Americans with Disabilities Act. Employers with 20 or more employees are governed by the Age Discrimination in Employment Act.
Mississippi law does protects individuals who seek employment in state service from discrimination based on race (Miss. Code Ann. § 25-9-103 et seq. and Miss. Code Ann. § 25-9-149).
(c) Disability? Mississippi has not enacted a comprehensive anti-discrimination statute that covers private employers and employees. However, employers that employ 15 or more employees are governed by Title VII and the Americans with Disabilities Act. Employers with 20 or more employees are governed by the Age Discrimination in Employment Act.
Mississippi law does protects individuals who seek employment in state service from discrimination based on disability (Miss. Code Ann. § 25-9-103 et seq. and Miss. Code Ann. § 25-9-149).
Mississippi law further provides that no one can be refused employment due to blindness, visual disability, deafness, or other physical disability, unless such disability materially affects the performance of the work required by the job for which such person applies (Miss. Code Ann. 43-6-15). This law applies to state employment, public schools, and any other employment supported in whole or in part by state funds.
(d) Gender? Mississippi has not enacted a comprehensive anti-discrimination statute that covers private employers and employees. However, employers that employ 15 or more employees are governed by Title VII and the Americans with Disabilities Act. Employers with 20 or more employees are governed by the Age Discrimination in Employment Act.
Mississippi law does protect individuals who seek employment in state service from discrimination based on sex (Miss. Code Ann. § 25-9-103 et seq. and Miss. Code Ann. § 25-9-149).
(e) Sexual orientation? Mississippi has no general statute protecting private or public employees from discrimination based on sexual orientation.
(f) Religion? Mississippi has not enacted a comprehensive anti-discrimination statute that covers private employers and employees. However, employers that employ 15 or more employees are governed by Title VII and the Americans with Disabilities Act. Employers with 20 or more employees are governed by the Age Discrimination in Employment Act.
Mississippi law does protect individuals who seek employment in state service from discrimination based on religion (Miss. Code Ann. § 25-9-103 et seq. and Miss. Code Ann. § 25-9-149).
A new Mississippi law, House Bill 1523, has enacted broad protections for state employees who make statements or act – even in the course of their official duties – consistent with certain religious convictions pertaining to marriage, sexual orientation, and sexual morality in general.
(g) Medical? Mississippi has not enacted a comprehensive anti-discrimination statute that covers private employers and employees. However, employers that employ 15 or more employees are governed by Title VII and the Americans with Disabilities Act. Employers with 20 or more employees are governed by the Age Discrimination in Employment Act.
Mississippi law protects individuals who seek employment in state service from discrimination based on race, color, religion, sex, national origin, age, or disability (Miss. Code Ann. § 25-9-103 et seq. and Miss. Code Ann. § 25-9-149).
(h) Other? Mississippi law prevents employers from requiring as a condition of employment that any employee or applicant abstain from smoking or using tobacco products during non-working hours, provided that the individual complies with applicable laws or policies regulating smoking on the employer’s premises during working hours (Miss. Code Ann. § 71-7-33).
Mississippi law prevents employers from discharging or discriminating against employees who serve or served in the U.S. armed forces who were not dishonorably discharged (Miss. Code Ann. § 33-1-15).
Mississippi employers should not deny an applicant employment, or discipline or terminate an employee, for past criminal acts that have been expunged (Miss. Code Ann. § 99-15-57).
Harassment What is the state law in relation to harassment? Mississippi law provides no comprehensive protection to private employees against harassment in the workplace. However, employers with 15 or more employees are subject to the anti-discrimination and anti-harassment provisions found in Title VII.
Despite no statutory source of protection for private employees against harassment under the Mississippi Code, the general rule in Mississippi is that sexual harassment by a supervisor is not considered conduct within the scope of employment (see Jones v. B.L. Development Corp., 940 So.2d 961 (Miss. App. 2006)). However, employees harassed in the workplace are entitled to unemployment compensation if “an ordinary prudent employee would leave the ranks of the employed for the unemployed” because of the degree of harassment (see Mississippi Dept. of Employment Sec. v. Trent L. Howell, PLLC, 46 So.3d 827 (Miss. App. 2010)).
Public employers in Mississippi are precluded from engaging in sexual harassment (Miss Code Ann § 25-9-103, et seq.).
Family and medical leave What is the state law in relation to family and medical leave? Mississippi has no comprehensive law governing family and medical leave. Employers with 50 or more employees within a 75-mile radius are governed by the Family and Medical Leave Act.
Mississippi law addresses personal and major medical leave for public employees (Miss. Code Ann. § 25-3-93(1)(b), et seq.).
Privacy in the workplace
Privacy and monitoring What are employees’ rights with regard to privacy and monitoring? Mississippi has no statute recognizing an employee’s general right to privacy in the workplace, and no general law prohibits electronic monitoring of private employees. However, Mississippi law does expressly prohibit the secret recording of communications when none of the individuals involved are aware of the recording. The statute does not apply to a communication intercepted by an individual who is a party to the communication (Miss. Code Ann. § 41-29-531(e)).
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts? No Mississippi laws protect social media passwords in the employment context or regulate employer monitoring of employee social media accounts.
Bring your own device What is the latest position in relation to bring your own device? Mississippi law makes no mention of bring your own device policies, but employers throughout the state are increasingly adopting bring your own device programs and policies to reduce IT costs. To reduce exposure to invasion of privacy claims, employers that adopt these programs and policies should ensure that their employees are fully aware of the privacy trade-offs associated with using personal devices for work-related communications.
Off-duty To what extent can employers regulate off-duty conduct? With the exception of Section 71-7-33 of the Mississippi Code—which states that an employer may not require an employee to abstain from smoking or using tobacco products during non-working hours as a condition of employment—no Mississippi law prohibits employers from regulating an employee’s private off-duty conduct. That said, an employer could be tasked with defending a common law invasion of privacy claim should its employment practice unnecessarily interfere with an employee’s personal affairs.
Gun rights Are there state rules protecting gun rights in the employment context? In Mississippi, an individual may carry a firearm (openly or concealed) onto private property unless the property owner specifically prohibits it. However, except in limited instances, a public or private employer may not establish, maintain, or enforce any policy or rule that prohibits a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area (Miss. Code Ann. § 45-9-55(1)). A private employer may prohibit an employee from transporting or storing a firearm in a vehicle in a parking lot, parking garage, or other parking area that the employer provides for employees and to which access is restricted or limited through the use of a gate, security station, or other means of restricting or limiting general public access onto the property (Miss. Code Ann. § 45-9-55(2)). The Mississippi Supreme Court has held that Section 45-9-55 can be the basis of a wrongful discharge action (see Swindol v. Aurora Flight Sciences Corp., 2016 WL 1165448 (Miss. March 24 2016)).
Trade secrets and restrictive covenants
Intellectual Property Who owns IP rights created by employees during the course of their employment? Mississippi follows federal law regarding IP rights created by employees (see Harrell v. St. John, 792 F.Supp.2d 933 (S.D. Miss. 2011)). In the absence of an express written instrument to the contrary, work made for hire by an employee is owned by the employer (U.S.C.A. § 201(b)).
Restrictive covenants What types of restrictive covenants are recognized and enforceable? Mississippi has no statutory requirements for non-compete agreements or non-solicitation agreements between an employer and employee. Contracts which contain non-compete agreements are disfavored by the courts as restrictions of trade and personal liberty, but will be enforced if the terms are reasonable.
The determination of reasonableness depends on the competing needs of the parties and the public, including:
- the employer's need to protect legitimate business interests;
- the employee's need to make a living; and
- the public's need to secure the employee's presence in the labor pool and guard against monopolies (Business Communications, Inc. v. Banks, 91 So.3d 1, (Miss. App. 2011)).
The validity and enforceability of such agreements are largely predicated on the duration of the restriction and its geographic scope. One to two-year restrictions are generally upheld as reasonable.
The burden of proving the reasonableness of these terms is on the employer. In certain circumstances—where it is found that the employee’s termination was arbitrary, capricious, or in bad faith—equity can be extended and the court may refuse to enforce the agreement (see Redd Pest Control Co., Inc. v. Foster, 761 So.2d 967 (Miss. App. 2000)).
Non-compete Are there any special rules on non-competes for particular classes of employee? Mississippi has no statutory rules regarding non-competes for particular classes of employees, but the level of the position, as well as job duties and access to confidential and proprietary information, are factors that the courts will look at when weighing the employer’s need to protect legitimate business interests against the employee’s need to make a living.
Right to work Is the state a “right to work” state? Yes. Mississippi is a right to work state.
Unions and layoffs Is the state (or a particular area) known to be heavily unionized? No part of the state is heavily unionized. However, the area south of Interstate 10 and the Jackson area are the most heavily unionized.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs? No particular rules relate to lay-offs or mass firings, other than federal Worker Adjustment and Retraining Notification Act requirements.
Discipline and termination
State procedures Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures? No state-specific laws on discipline and grievance procedures exist. However, there may be very particular circumstances in which there are procedures to be followed. In such cases, a Mississippi lawyer should be consulted.
At-will or notice At-will status and/or notice period? Mississippi is an at-will employment state. The general rule of at-will employment is that a contract for employment for an indefinite period may be terminated at the will of either party for any reason or no reason at all.
What restrictions apply to the above? Two narrow exceptions exist to the employment at-will doctrine. Where an employee is terminated because he or she has refused to participate in an illegal activity or has reported an employer’s illegal activity to the employer or anyone else, a suit for wrongful discharge may be maintained despite the at-will status of the employee. Arguably, there exists a third exception for cases involving firearms locked in employees’ automobiles on company property (see Swindol v. Aurora Flight Sciences Corp., 2016 WL 1165448 (Miss. March 24 2016)).
Final paychecks Are there state-specific rules on when final paychecks are due after termination? No—Mississippi has no state-specific rules on when final paychecks are due after termination.