United States: 2017 Missouri, Kansas, And Oklahoma Employment Law Update

The 2017 Missouri General Assembly session produced the fewest legislative changes since 2000, with the passage of seventy-five new bills. However, there were some notable changes that took effect this year that will undoubtedly have a resounding impact to employers. Each new law became effective on August 28, 2017.

Senate Bill 43's Sweeping Changes to the Employment and Labor Legal Landscape

Perhaps the most significant change of the legislative session resulted from the passage of Senate Bill 43, which amended or enacted ten statutory provisions that led to sweeping changes to the Missouri Human Rights Act and the employment and labor litigation landscape.

Specifically, SB 43 codifies the Whistleblower's Protection Act; eliminates individual liability for discrimination actions; imposes damages caps based on the employer's size; adopts the "motivating factor" standard of proof for discrimination, retaliation, and whistleblower actions; abrogates former jury instructions applicable to discrimination and retaliation actions in favor of the "motivating factor" standard, and imposes the federal McDonnell Douglas burden shifting framework for summary judgment motions filed in discrimination related cases.

Pursuant to SB 43, newly amended Section 213.111, R.S.Mo. provides a cap on total combined damages for both compensatory and punitive damages. The size of the employer's workforce determines the cap amount, which ranges from $50,000 to $500,000, in addition to back pay. The breakdown includes the following:

  • $50,000 for employers with between 5 and 100 employees;
  • $100,000 for employers with between 101 and 200 employees;
  • $200,000 for employers with between 201 and 500 employees;
  • $500,000 for employers with more than 500 employees.

Moreover, as amended, Section 213.075, R.S.Mo. mandates that an aggrieved claimant must file a complaint of discrimination with the appropriate federal, state, or local commission within 180 days of the alleged discriminatory act. Failure to timely file a complaint deprives the commission of jurisdiction, which acts as a complete bar to recovery and may be asserted at any time by the responding party, regardless of whether the commission issues a right-to-sue letter.

SB 66 also amended Section 287.780, R.S.Mo. to impose the "motivating factor" standard to cases involving workers' compensation discrimination and retaliation.

We anticipate that the retrospective application of the recent changes to the "motivating factor" standard and the cap on total combined damages will result in contested litigation for years to come.

Missouri's "Right-to-Work" Law

With the passage of SB 19, often referred to as Missouri's "right-to-work" law, new legislation prohibits employers from forced participation in labor organizations. Pursuant to Section 290.590, R.S.Mo., no employee "shall be required as a condition or continuation of employment" to become, remain, or refrain from membership in a labor organization. Section 290.590, R.S.Mo. also prohibits employers from mandating that employees pay dues, fees, or other assessments to a labor organization. Violations of Section 290.590, R.S.Mo. result in recovery of damages, including attorneys' fees, and amount to class C misdemeanors.

Prohibition of Local Municipality Changes to Minimum Wage or Employment Benefit Laws

HB 1194 and 1193 prohibit a political subdivision from passing any ordinance, rule, or other regulation that requires an employer to provide a minimum wage or employment benefit that exceeds current state laws, rules, or regulations. As defined by Section 290.528, R.S.Mo., a "political subdivision" includes "any municipality, special district, local government body, county, city, town, or village."

Other Miscellaneous Changes

Pursuant to HB 452, healthcare providers are not liable for the actions or omissions of non-employees, unless the offending persons are employees of "qualifying subsidiaries." The limitations on liability also apply to all claims for contribution from the healthcare providers.

SB 395, proposed by the Missouri Society of Certified Public Accountants, updates Missouri's accountancy laws regarding attestation services to align with thirty-eight other jurisdictions that have enacted such changes. As updated, Section 326.289, R.S.Mo. also permits mobility across state lines without requiring reciprocal licensure for CPA's and CPA firms performing attestation or compilation services.

Kansas

The 2017 legislative session was dominated by discussions of tax policy, a looming budgetary shortfall, and education funding in Kansas, but the Kansas Legislature also passed several laws affecting employers in the state. These laws became effective on July 1, 2017.

Unemployment Insurance Benefits and Separation Pay

HB2329 amends Kansas' unemployment benefits system. Specifically it changes how benefits are paid when an individual receives a post-employment separation payment. As the Kansas Legislative Research Department explains it:

"Under prior law, weekly UI benefits stop until separation pay has been exhausted, usually at the rate of the individual's normal weekly wage. The cessation of benefits previously began a week after separation from employment. Under the bill, the start date of cessation begins a week after separation pay has been paid. Individuals whose benefits stopped for 52 weeks or more due to separation pay are entitled to a new benefit year, which is calculated using the employment base period of the prior claim."

Department of Revenue Employees

SB96 deals exclusively with employees of the Kansas Department of Revenue. It allows the Secretary of Revenue to require employees and contractors to undergo fingerprinting and criminal background checks if the employee or contractor has access to federal tax information received from the IRS. The Department of Revenue is authorized to use the fingerprints or background information only to verify a person's identity or to assess the person's fitness for employment.

Home Health Agencies

SB154 addresses home health agencies. Generally, it requires all agencies providing home health, supportive care, or attendant care services to be licensed. The bill also removed a requirement that complaints against a home health agency be in writing. Complaints may now be submitted by phone.

Concealed Carry Exemptions

HB2278 deals with the concealed carry of firearms. Since 2015, residents of Kansas have been allowed to legally carry a concealed firearm without a permit. Generally, residents are allowed to carry firearms in public buildings. Public buildings such as public universities are required to allow concealed carry—even by employees—unless the building has armed guards and metal detectors at each entrance. HB2278 exempts state and municipally owned medical facilities, adult care homes, community mental health facilities, and indigent healthcare clinics from the requirement to allow concealed carry. In other words, these types of medical facilities do not need to install metal detectors or hire security guards in order to prohibit concealed firearms on their premises.

Anti-Israel Boycott

HB 2409 prohibits the state from contracting with companies or individuals that are engaged in any sort of anti-Israel boycott. Going forward, the state must obtain written certification from contractors that they are not engaged in such a boycott.

Oklahoma

No major employment or labor-related legislation passed during the first session of Oklahoma's 56th Legislature in 2017. However, the Oklahoma Supreme Court continued to strike down portions of the Administrative Workers' Compensation Act ("AWCA"), which was passed in 2013 as part of an effort to overhaul the state's workers' compensation laws.

In Gibby v. Hobby Lobby Stores, Inc., the Supreme Court struck down a portion of the AWCA that terminated benefits for an injured Oklahoma employee who missed two or more scheduled appointments for treatment of the injury without notice and absent extraordinary circumstances. The AWCA also specifically provided that an inability to get transportation to the appointment was not a valid excuse for missing an appointment.

The Oklahoma Supreme Court found that the provision resulted in the forfeiture of a vested right and violated the adequate remedy provision of Article II, Section 6 of the Oklahoma Constitution. Gibby marks the 44th provision of the AWCA to be found unconstitutional or invalid since the law was enacted in 2013.

Updates to the Employment Security Act

HB 1110 amended the Employment Security Act of 1980, which provides for unemployment benefits in the state, updating the language of the Act and available unemployment benefits. The bill also codified 40 Okla. St. Ann. §§ 3-109.3 and 6-201 – 6-205, creating a technology fund from a 5% tax on employers' unemployment taxes. The fund is administered by the Oklahoma Employment Security Commission ("OESC") for the purposes of modernizing business processes and technology of the OESC. The bill went into effect July 1, 2017.

Private Employment Agencies

HB 1233 amended 40 Okla. St. Ann. § 2011, authorizing courts of competent jurisdiction, instead of the Commissioner of Labor, to issue orders when an employer is not fulfilling contracts made through an employment agency: it also modified allowable fees and clarified enforcement of the rules and regulations. The law went into effect November 1, 2017.

Appropriation to the Employment Security Administration Fund

SB 117 appropriated $6,000,000 to the OESC to pay the administrative expenses incurred carrying out the employment service program and unemployment insurance program. The law went into effect November 1, 2017.

Unemployment Benefits for Educational Service Contractors

HB 1621 codified 40 Okla. St. Ann. § 2-209.1. Under the Employment Security Act of 1980 the bill provides for unemployment benefits for employees of an educational service contractor, which provides workers to educational institutions in Oklahoma.

Overtime Pay for State Employees

HB 1868 stalled in a conference committee in the Senate during the first session of the 56th Legislature. The bill would provide overtime pay to state employees earning less than $30,000 annually for all hours worked over 40 hours a week. The conference committee issued a report recommending amendments to the bill at the end of the first session of the 56th Legislature and will likely be voted on in the second session in 2018.

Failure to Pass Workers' Compensation Legislation

The 56th Legislature introduced numerous bills relating to Oklahoma's workers' compensation laws, but none of the bills were signed into law. SB 737 and HB 1462, 1572, 2242 all died in conference.

SB 737 and HB 1462 proposed sweeping workers' compensation changes, including adding and removing definitions; capping exemplary or punitive damage awards for employers that retaliate against employees who file a workers' compensation claim; codifying the burden of proof for employees bring a workers' compensation retaliation claim; amending which injuries are compensable; and amending the powers of the Oklahoma Workers' Compensation Commission.

HB 1572 proposed amending the workers' compensation Self-Insured Guaranty Fund. HB 2242 provided for an affidavit of exempt status for employers not subject to the requirements to provide workers' compensation payment through insurance or other methods.

For more information about Lewis Brisbois' Employment & Labor Practice, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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