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Which issues would you most highlight to someone new to your state?
- The Missouri Human Rights Act;
- State policies on mandatory arbitration agreements;
- State policies on changing the terms of existing employment agreements;
- The Missouri Omnibus Immigration Act requirements;
- State policies on final pay;
- Missouri’s “right to work” status; and
- City and county ordinances forbidding discrimination based on sexual preference or gender identity.
What do you consider unique to those doing business in your state?
Missouri has a prevailing wage statutory scheme (R.S.Mo. §290.210, et seq.).
Multi-plaintiff minimum wage and overtime claims are sometimes brought under Missouri law because it applies opt-out class rules, rather than the opt-in collective scheme required by the federal Fair Labor Standards Act.
The Missouri Human Rights Act (R.S.Mo. §213.010, et seq.) has no caps on compensatory and punitive damages for employment discrimination regarding federal anti-discrimination statutes, with the result that most employment discrimination claims are brought in Missouri state court rather than U.S. district court.
Is there any general advice you would give in the labor/employment area?
With certain important exceptions, employment law in Missouri typically tracks federal law and is generally employer friendly.
Missouri is not a right to work state, despite recent legislative attempts to make it so. In addition, Missouri discrimination law is more favorable to employees than federal law, having no caps on compensatory and punitive damages. This means many cases alleging employment discrimination are brought under Missouri rather than federal law and are filed in Missouri state courts. Multi-plaintiff wage and hour claims are often brought under Missouri law and in Missouri state courts because the state applies opt-out class rules, rather than the opt-in scheme required by the Fair Labor Standards Act. The Missouri Human Rights Act prohibits discrimination on the basis of the same characteristics protected by federal law. However, certain Missouri cities and counties have local ordinances that prohibit discrimination on the basis of sexual preference and gender identity. All employers in the state are required to participate in the federal Basic Pilot program to verify that every applicant and employee’s authorization to work in the United States.
Proposals for reform
Are there any noteworthy proposals for reform in your state?
It is anticipated that the Missouri legislature, as presently comprised, will continue its efforts to make Missouri a right to work state, as this is a continued hot topic. The 2014 legislature passed two bills (SB 510 and SB 673) relating to unemployment compensation. The first more broadly defines “misconduct” for which an employee may be disqualified for unemployment compensation. The second bill modifies the duration of benefits. The bills are both considered “pro-business,” and are awaiting action by the governor.
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?
There were several bills introduced in the 2014 Missouri legislature addressing marijuana use. While a bill reducing the criminal penalties for certain possession has become law, attempts to completely decriminalize marijuana possession and use were not successful. Further attempts on the part of marijuana decriminalization groups are promised.
The employment relationship
What state-specific laws govern the employment relationship?
Generally, Missouri laws mirror federal laws regarding the employment relationship. Specifically, Missouri has Title VII, Age Discrimination in Employment Act, and Americans with Disabilities Act equivalents in the Missouri Human Rights Act (R.S.Mo. §213.010, et seq.). However, there are no limits on compensatory and punitive damages under the Missouri Human Rights Act, as there are for most federal employment law claims (R.S.Mo. §213.111). As a result, many employment discrimination claims are brought under Missouri state law rather than federal law.
Who do these cover, including categories of workers?
The Missouri Human Rights Act applies to private sector employers with six or more employees.
Are there state-specific rules regarding employee/contractor misclassification?
There are no penalties for misclassification. However, the Missouri Department of Labor and Industrial Relations is actively pursuing what it calls “1099-fraud” in order to collect additional unemployment compensation contributions from companies that have misclassified employees as contractors. In 2011, the department also entered into a memorandum of understanding with the U.S. Department of Labor - Wage and Hour Division in order to:
- provide clear, accurate, and easy-to-access outreach to employers, employees, and other stakeholders;
- share resources and enhance enforcement by conducting joint investigations; and
- share information regarding employee and contractor misclassification.
Must an employment contract be in writing?
No—oral contracts of employment are enforceable.
Are any terms implied into employment contracts?
Missouri courts generally imply covenants of good faith and fair dealing in all contracts. Because employment in Missouri is generally “at will,” when an employment contract provides no definite period for employment and fails to include provisions related to the reasons for termination, the good faith and fair dealing covenants cannot be implied to supersede the express agreement that the employee can be fired without cause.
Are mandatory arbitration agreements enforceable?
Missouri favors arbitration. Where there is an applicable arbitration agreement and the opposing party refuses to arbitrate, the court will order the parties to arbitrate (R.S.Mo. §435.355.1). In the employment context, as long as the arbitration provision is part of an otherwise valid contract (offer, acceptance, and consideration), and the dispute for which arbitration is sought is within the terms of the contract, Missouri courts will enforce it.
How can employers make changes to existing employment agreements?
Missouri employers must give 30 days’ prior written notice of their intention to reduce wages (R.S.Mo. §290.100). Presuming that the employment agreement creates an “at-will” relationship, a Missouri employer may—at its own discretion and without notice or consequence—prospectively:
- change wages (subject to 30 days’ prior written notice);
- terminate benefits;
- reduce paid time off; and
- change other terms or conditions of employment.
These changes cannot be based on an impermissible reason, such as an employee’s race, age, or gender. Employment agreements that are not “at will” will typically control how changes can be made. An employee who resigns because of a change in the term or conditions of employment may be entitled to unemployment compensation benefits.
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).
Discrimination, harassment and family leave
What is the state law in relation to:
Discrimination based on age is prohibited. Employees over 40 years of age but under 70 years of age are protected under this prohibition. Excluding religious and sectarian groups, this prohibition applies to all state employers and private employers with six or more employees. Employers may not discharge, refuse to hire, discriminate with regard to compensation, or otherwise discriminate on the basis of age (Mo. Rev. Stat. § 213.010 et seq.).
Missouri state law provides the same protections from discrimination on the basis of race as Federal Title VII. Missouri law, however, is broader because it applies to employers with six or more employees (Mo. Rev. Stat. § 213.010 et seq.).
Discrimination based on disability is prohibited. Excluding religious and sectarian groups, this prohibition applies to all state employers and private employers with six or more employees. Employers may not discharge, refuse to hire, discriminate with regard to compensation, or otherwise discriminate on the basis of disability. Employers must also provide reasonable accommodations for disabled employees (Mo. Rev. Stat. § 213.010 et seq.).
Missouri state law provides the same protections from discrimination on the basis of gender as Federal Title VII. Missouri law, however, is broader because it applies to employers with six or more employees (Mo. Rev. Stat. § 213.010 et seq.).
(e) Sexual orientation?
Sexual orientation is not a protected class under Missouri state law. Various municipalities, however, have ordinances that protect individuals from discrimination based on sexual orientation (e.g., Saint Louis, Mo., Ordinance 67,119 (June 13, 2006)).
Missouri state law provides the same protections from discrimination on the basis of religion as Federal Title VII. Missouri law, however, is broader because it applies to employers with six or more employees (Mo. Rev. Stat. § 213.010 et seq.).
Medical maternity/pregnancy—employers may not discriminate based on a woman’s pregnancy. This applies to all state employers and private employers with six or more employees. Pregnant women are treated in the same way that employees with temporary disabilities are treated, including with regard to the leave policy. Employees are also protected from discrimination based on pregnancy because it is included under gender discrimination (Mo. Rev. Stat. § 213.055 et seq.).
HIV/AIDS—discrimination based on an employee’s diagnosis with HIV/AIDS is prohibited (Mo. Rev. Stat. § 191.665). HIV/AIDS is classified as a disability and employers must provide reasonable accommodations (Mo. Rev. Stat. § 213.010 et seq.).
Marital status—marital status is not a protected class under Missouri state law. Various municipalities, however, have ordinances that protect individuals from discrimination based on marital status (e.g., Columbia, Mo., Code § 12-32 (2012)).
Tobacco use—employers may not discharge, refuse to hire, or otherwise discriminate on the basis of lawful, off-duty tobacco use, unless it interferes with employee performance or the business of the employer. This does not apply to employers that are religious organizations, church-operated institutions, or not-for-profit organizations whose principal business is healthcare promotion (Mo. Rev. Stat. § 290.145).
Genetic information—discrimination based on an applicant’s or employee’s genetic information or genetic test results is prohibited. Exceptions exist where the genetic information or test is directly related to the performance of the job and in other limited circumstances (Mo. Rev. Stat. § 375.1306).
What is the state law in relation to harassment?
Missouri law provides the same protection from harassment and retaliation as Federal Title VII. Additionally, an employer may not retaliate based on an employee’s assertion of rights under Section 213. This applies to all employers with six or more employees (Mo. Rev. Stat. § 213.070).
Family and medical leave
What is the state law in relation to family and medical leave?
Missouri does not have any state-specific provisions for family or medical leave. Federal law, including the Family and Medical Leave Act, governs such leave.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Missouri generally recognizes a right to privacy under limited circumstances, but there is no specific law on monitoring or recording of employee conversations that are not wire communications (Brown v. Mullarkey, 632 S.W.2d 507 (Mo. App. 1981)). However, interception of a wire communication is prohibited if the interceptor is not a party to the conversation or does not have the consent of a party to the conversation (R.S.Mo. §542.402). Generally, one cannot intentionally intrude—physically or otherwise—on the solitude or seclusion of another, or his or her private affairs or concerns, if the intrusion would be highly offensive to a reasonable person. Nonetheless, surveillance in a public place is lawful, even when embarrassing facts are disclosed (Turner v. General Motors corp., 750 S.W.2d 76 (Mo.App. 1988)).
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Not currently, though bills to protect social media passwords in the employment context were introduced in both houses of the Missouri legislature in 2014, but were not voted on before adjournment.
Bring your own device
What is the latest position in relation to bring your own device?
Missouri has taken no specific position in regard to this issue. However, similar to the federal Consumer Fraud and Abuse Act, and like all other states, Missouri does have computer trespass laws that employers should keep in mind when seeking to access an employee’s personal device used for employment purposes. Violations of these laws can result in criminal penalties.(R.S.Mo. §§569.095, 569.097 and 569.099).
To what extent can employers regulate off-duty conduct?
With a few exceptions, such as religious institutions, employers may not discriminate against applicants or employees for the lawful use of alcohol or tobacco products off the employer’s premises during non-working hours (R.S.Mo. §290.145). However, employers may offer health insurance benefits at a reduced rate to employees who do not use tobacco products (R.S.Mo. §285.125).
Are there state rules protecting gun rights in the employment context?
No. In fact, concealed carry handgun permit holders are forbidden by state law from carrying firearms onto any private property that prohibits firearms.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Unless otherwise agreed by the employer and employee, the employer owns all IP rights. Missouri has no invention ownership statute.
What types of restrictive covenants are recognized and enforceable?
An enforceable non-compete must be, or be a part of, an otherwise valid and enforceable contract. Missouri courts are generally supportive of non-compete agreements, as long as they concern a protectable interest of the employer (e.g., customer contacts, accounts and goodwill, and trade secrets or other commercially sensitive, confidential information pertaining to the employer’s business practices). They must also be reasonable in time and geographic restrictions. Each case is determined on its own facts.
Post-termination covenants not to solicit, recruit, hire, or otherwise interfere with the employment of one or more employees are presumed reasonable if intended to protect the following employer interests:
- confidential or trade secret business information; and
- customer supplier relationships, goodwill, or loyalty (R.S.Mo. §431.202).
The statute does not apply to non-compete agreements.
While the enforceability of such restrictive covenants depends on the facts and circumstances, the statute provides a presumption of reasonableness if the restriction does not exceed one year after employment ends.
Post-termination restrictive covenants that are not aimed at protecting employer interests are nonetheless presumed reasonable as long as they do not seek to restrict secretarial or clerical employees and, for other employees, the restrictions last for no more than one year after termination.
Are there any special rules on non-competes for particular classes of employee?
No. However, the presumption of reasonableness when post-termination restrictive covenants do not exceed one year does not apply to secretarial or clerical employees.
Right to work
Is the state a “right to work” state?
No. Legislative efforts in 2014 to make Missouri a “right to work” state failed.
Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?
In 2013, union members accounted for 8.6% of wage and salary workers in Missouri, compared to the U.S. average of 11.3%. Union members and workers reporting no union affiliation, but who are covered by a union or employee association contract, represent 10.4% of the workforce. Union membership in Missouri has been declining from its 1989 peak of 15.5%, although it remains significantly higher than the statewide average in the St. Louis and Kansas City metropolitan areas.
What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?
No state laws or local ordinances exist that govern layoffs or plant closures. The Worker Adjustment and Retraining Notification Act controls layoffs and plant closures where applicable.
Discipline and termination
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
No, not for private sector employers.
At-will or notice
At-will status and/or notice period?
Employment is generally at the will of either the employee or employer, and can be terminated at any time by either party with or without cause. Exceptions to this rule do exist.
What restrictions apply to the above?
The exceptions to employment at will are as follows:
- termination that contravenes a public policy that is clearly stated in the state constitution, statute, or a regulation. This includes:
- refusing to commit a crime or act contrary to public policy;
- reporting wrongdoing or a violation of law or public policy by an employer or fellow employee;
- engaging in activities encouraged by public policy;
- asserting rights under workers’ compensation law;
- reporting wrongdoing to supervisors or authorities (whistleblowing); and
- performing an act supported by public policy or refusing to perform an illegal act.
- where there is a contract of employment for a specific period or that otherwise limits the right to terminate employment at will; and
- where a statute provides an employee with a remedy for wrongful termination, such as:
- workers’ compensation;
- jury service;
- reporting safety violations; and
Employees may not be terminated for lawful use of alcohol or tobacco products off the employer’s premises while off duty, unless the use interferes with the employee’s performance or the employer’s business (R.S.Mo. §290.145).
The Missouri Human Rights Act prohibits terminations on the basis of race, color, religion, national origin, sex, ancestry, disability, or age (R.S.Mo. §213.055). A number of Missouri cities and counties have local ordinances prohibiting employment discrimination, including termination on the basis of sexual preference or gender identity.
Are there state-specific rules on when final paychecks are due after termination?
Employees discharged by an employer doing business in Missouri are to be paid all unpaid wages on the date of discharge. An employer that does not pay the employee his or her unpaid wages within seven days of a written request is subject to a penalty in the amount of an additional day’s wages for up to 60 days. Unused vacation is not wages owed and payable, unless the employer has agreed to do so through an employment contract or by policy or practice (R.S.Mo. §290.110).