The Missouri General Assembly passed multiple bills this legislative session which will have an impact on employers. The majority of changes made by the Missouri General Assembly this year apply to public rather than private employers. The largest impact on employment law this year is attributed to the Missouri Supreme Court enacting changes to jury instructions in cases under the Missouri Human Rights Act.
The Supreme Court Revises Employment Law Jury Instructions
In 2017, the Missouri General Assembly passed two laws that altered the employment law landscape. There was some uncertainty as to whether these laws would apply retroactively and prospectively. The Missouri Supreme Court answered that question this year by promulgating new jury instructions. Through these revised instructions, the Missouri Supreme Court indicates the new law only applies prospectively.
To accomplish their intention that the bills apply prospectively, the Court delineated the standards that are to apply to claims arising before August 27, 2018 and claims arising after August 27, 2018. For the claims arising before August 27, 2018, the courts will instruct the jury to use a contributing factor standard. In contrast, for claims arising after August 27, 2018, an employee will need to satisfy the more burdensome motivating factor standard to prevail in the litigation.
Modifications to Public Employees Collective Bargaining Rights
Through HB 1413, the General Assembly modified the rights of public employees to collectively bargain. The most important change coming from this law is the change to withholding of labor organization dues. While a public entity may still withhold dues from a public employee's paycheck for paying labor organization dues, that public entity must obtain the employee's consent prior to withholding the dues. Similar consent is required for the labor organization to use the dues for political purposes. The consent may be in written or electronic form and must be obtained each year.
The act also sets out a procedure for certifying, decertifying, and recertifying public labor organizations.
Modification of State Personnel Law
SB 1007 contains multiple revisions and repeals to provisions relating to the State Personnel Law, otherwise known as the state merit system. Under the act, all state employees that are not subject to the merit system will be considered at-will employees.
The act also limits the application of the merit system to charitable or penal institutions and employees in agencies required to maintain a merit system passed on federal law or regulations. Overall, the modifications and repeals severely limit the merit system, and the act increases the number of public employees considered at-will employees.
Professional Employer Organization Act
HB 1719 created the Professional Employer Organization Act. This act requires registration and regulation of Professional Employer Organizations. Generally, a Professional Employer Organization is a third-party that employers contract with to co-employee workers and provide professional employment services to the employer.
The act permits future regulation of previously unregulated professions and modifies or establishes regulation requirement for multiple professions. The professions specifically affected by the act are dietitians, interior designers, electrical contractors, land surveyors, cosmetologists and barbers, professional counselors, pharmaceutical entities, psychologists, nurses, and mental health professionals.
The act also established a Psychology Interjurisdictional Compact. The compact impacts the practice of telepsychology. In certain circumstances, psychologists licensed in Missouri can now practice telepsychology in other states that have agreed to the compact. Further, the law permits psychologists licensed in Missouri to temporarily work in other compact states when certain qualifications are met.
Changing the Process for Criminal Background Checks
HB 1350 alters the process for obtaining a criminal background check in some circumstances. Further, the act modifies provisions relating to criminal culpability for in-home service provides. Criminal culpability attaches if an employer hires a person to provide in-home services who has pled guilty or nolo contendere to certain offenses; is on the Department of Health and Senior Services' employee disqualification list or the Department of Mental Health's employee disqualification registry; or has a finding on the child abuse and neglect registry.
Finally, the act provides for changes concerning criminal background checks in relation to child care service providers.
On August 7, 2018, the Missouri voters, through a veto referendum, rejected legislation that would have allowed for employers to condition employment upon payment of dues to a labor union. On November 6, 2018, Missouri voters passed a referendum increasing the state minimum wage and a constitutional amendment permitting the use of medical marijuana.
Concerning the availability of medical marijuana, Missouri voters passed a constitutional amendment permitting persons to possess and use marijuana with permission from their medical provider. While this change does not directly affect employment law, the use of medical marijuana will have an impact on workers' compensation litigation. Legislative changes and litigation are expected if the voters approve the use of medical marijuana.
Voters overwhelmingly passed Proposition B which eventually increases Missouri's minimum wage to $12 per hour. Proposition B provides for a gradual increase in the minimum wage from 2019 through 2023. On January 1, 2019, the minimum wage will increase from $7.85 per hour to $8.60 per hour. Each subsequent year the minimum wage will increase by 85 cents. The relevant minimum wages for each year will be:
- $8.60 beginning in 2019
- $9.45 beginning in 2020
- $10.30 beginning in 2021
- $11.15 beginning in 2022
- $12.00 beginning in 2023
Other Miscellaneous Changes
SB 660 contains a provision that exempts the first Sunday of November from the hours a state employee may work in a 24-hour period in certain secured mental health facilities.
SB 981 allows political subdivisions that are qualified to self-insure to elect either the average rate classification method or the filed rate method. They may change their election one time without consent of the Director of the Division of Workers' Compensation.
HB 1729 modifies provisions relating to the prevailing wage that must be paid to employees working for a public body on public works.
SB 573 permits any private employer to grant preference in hiring and promotion to veterans, the spouse of a disable veteran who has a service-connected disability, or to the surviving spouse of a deceased veteran.
HB 1558 creates the crime of nonconsensual dissemination of private sexual images and threatening the nonconsensual dissemination of private sexual images. In addition to the criminal penalties created by the law, the victim may bring a civil action against the perpetrator. The availability of a civil action against the perpetrator may become relevant in situations covered by the new law where an employee also alleges sexual harassment against an employer for creating a hostile work environment based upon the actions of the perpetrator. The exact impact of this law on employers is currently unclear.
The General Assembly introduced but did not pass SB 753 in 2018. This bill would have barred discrimination based on sexual orientation and gender identity. Failing to pass this bill indicates that the General Assembly agrees with court decisions finding there are no protections from discrimination based upon sexual orientation or gender identity in the Missouri Human Rights Act. See e.g., Pittman v. Cook Paper Recycling Corp., 478 S.W.3d 479, 483 (Mo. Ct. App. 2015); R.M.A. v. Blue Springs R-IV Sch. Dist., No. WD80005, 2017 Mo. App. LEXIS 716, (Ct. App. July 18, 2017) (vacated and transferred by 2018 Mo. Lexis 5).
The Missouri Supreme Court will address this issue, and the General Assembly not enacting legislative changes will be a factor in their analysis. However, we expect the General Assembly to revisit and potentially pass this bill in 2019. Potential changes on the law concerning discrimination based upon gender identity and sexual orientation - from any and every source - should be on all employers' radars for 2019.
A total of 118 bills were signed into law during the 2018 legislative session by Governor Brownback and Governor Colyer. Neither Governor Brownback nor Governor Colyer vetoed any bills in their entirety. However, Governor Colyer did veto 10 line items. Most of the legislative changes had little impact on employers. However, employers conducting business in Kansas should be aware of the following changes:
During the 2018 legislative session, the primary concern of Kansas legislators was responding to the Kansas Supreme Court's ruling in Gannon v. State, 306 Kan. 1170, 402 P.3d 513 (2017). In Gannon, the Kansas Supreme Court ruled that Kansas K-12 public schools were unconstitutionally underfunded and tasked the Kansas Legislature with revising its school finance scheme to comply with the adequacy and equity requirements of the Kansas Constitution. The legislators responded by approving an additional $522 million for school funding over a five-year period. Despite the funding increase, the Kansas Supreme Court found the school finance scheme constitutionally inadequate and ordered the Kansas Legislature to adequately fund Kansas schools by the end of the 2019 legislative session.
Alternate Dispute Resolution
HB 2571 repealed the Uniform Arbitration Act (UAA) and replaced it with the Revised Uniform Arbitration Act (RUAA). The RUAA applies to any arbitration agreement made on or after July 1, 2018. The UAA applies to arbitration agreements entered into before July 1, 2018. Many of the substantive provisions of the RUAA and UAA are generally similar. However, the RUAA has some notable differences. For example, the RUAA requires any individual requested to serve as an arbitrator to disclose any facts that a reasonable person would believe to affect the arbitrator's impartiality.
Additionally, the RUAA grants arbitrators the same types of legal immunities that Kansas judges acting in their judicial capacity enjoy. From a litigation standpoint, the RUAA allows Kansas courts to enter provisional remedies in urgent circumstances when the arbitrator cannot act or has not been appointed.
License Requirements for Employees in "Safety Sensitive Positions"
HB 2386 amended the licensure, certification, and registration requirements for employees working at adult care homes, hospitals, and home health agencies. The bill requires licensing boards and commissions to list any of an applicant's civil and criminal records that could disqualify the applicant from working in a "safety sensitive position." Generally, only serious crimes disqualify an applicant from receiving a license. Additionally, all applicants are required to provide fingerprint samples and must pass a criminal background check before receiving a license to work in adult care homes, hospitals, and home health agencies.
Legislative Authorization Required for Outsourcing State Security Operations
SB 328 prohibits Kansas State agencies from outsourcing security operations at correctional facilities to private employers without prior legislative authorization. However, the bill also contains a grandfather provision that allows the Kansas Department of Corrections to renew existing contracts with private security companies or to transfer an existing contract from one private security provider to another.
HB 2184 increases the benefits that a deceased worker's family members are eligible to receive under Kansas law. A deceased worker's spouse is entitled to 50% of the benefits while any children are entitled to the other 50% of the benefits. The bill also increases the initial benefits payment from $40,000 to $60,000 and provides for weekly payments. Generally, children are eligible to receive benefits until the age of 18. However, children who are enrolled full time in college are eligible to receive benefits until the age of 23.
HB 2184 also increases the amount of benefits that financially dependent individuals can receive. Previously a financially dependent individual's benefits were capped at $18,500. This bill increases the benefits cap for financially dependent individuals to $100,000. It also increased employer contributions for burial expenses from $5,000 to $10,000.
Sexual Orientation and Gender Identity Discrimination
HB 2123 introduced an amendment to the Kansas Act Against Discrimination that would have prohibited discrimination in the workplace, housing, and places of public accommodation based on an individual's sexual orientation or gender identity.
If HB 2123 were passed into law, members of the LGBTQ community would have had an undisputable statutory basis for pursuing discrimination claims against their employers. Other than providing protections for the LGBTQ community, the bill would have left the Kansas Act Against Discrimination largely unchanged.
Although HB 2123 died in committee, members of the LGBTQ community can still pursue discrimination claims under the applicable Kansas caselaw as a gender discrimination claim.
Reporting Abuse and Neglect
SB 1150 requires school employees to report certain behavior, including belief of abuse or neglect, to the Department of Human Services and local law enforcement. The bill also provides immunity from civil liability and employment discipline for such reporting. The law went into effect July 1, 2018.
SB 1475 created the Occupational Licensing Review Act, and the Occupational Licensing Advisory Commission, which periodically reviews occupational or professional licensing acts in the state and makes recommendations to the state legislature. The law went into effect July 1, 2018.
SB 1249 modifies liability for those other than the immediate employer; provides for an Affidavit of Exempt Status; provides an exception for liability to owners of a project or job who do not substantively form an employment relationship with its contractor, and; updates statutory references.
HB 2993 relates to the Self-Insurance Guaranty Fund and impaired self-insurers. The bill authorizes use of certain monies as a credit against assessments for the fund; modifies sources for the fund; provides for transfer of certain excess proceeds to the fund, and; authorizes use as a credit against assessments for the fund. The law went into effect November 1, 2018.
HB 2722 modifies a definition in the Administrative Workers' Compensation Act and clarifies the application of the exemption for those engaged in agriculture, ranching, or horticulture. The law went into effect November 1, 2018.
Small Employer Quality Jobs Incentive Act
SB 923 modifies requirements for incentive payments. Applicants previously had to have no more than 90 full-time employees to qualify. That number was amended to no more than 500 full-time employees. The bill also modifies the standards that applicants must meet for projected minimum employment.
County Employee Recognition Awards
SB 220 allows for the establishment of a county benefit program to encourage outstanding performance in the workplace.
State Leave Sharing Programs
SB 1581 amends the provision regarding the state leave sharing program, making it mandatory for state entities to allow employees to receive donated annual or sick leave from employees within their employing entity and different state entities, provided the employee first exhaust all available leave options. The bill also creates a Leave of Last Resort Bank, which allows retiring employees to elect to donate annual and sick leave to the bank for qualifying employees to use.
Public Retirement System
HB 1340 provides for the first increase in retirement benefits pursuant to a legislative authorization since 2008. The bill allocates distributions to various public employee retirement systems and prescribes standards and requirements for those distributions.
Work-based Learning Program
SB 1171 creates the Work-based Learning Program, which, through partnerships with various state entities, will focus on increasing the number of registered apprenticeships and internship programs in Oklahoma. This law went into effect July 1, 2018.
Appropriation to the Employment Security Administration Fund
HB 2522 appropriated $6,000,000 to the Oklahoma Employment Security Commission to pay the administrative expenses incurred in carrying out the employment service program and the unemployment insurance program. The law went into effect November 1, 2018.
Updates to the Employment Security Act
HB 2523 amended the Employment Security Act of 1980, which provides for unemployment benefits in the state. The bill modifies wage requirements during base period; removes the exception relating to educational institutions and adding exceptions for educational service contractors; modifies benefit overpayments; requires certain child support process be served on appropriate agency; alters disqualification to receive benefits, and; requires disclosure of Social Security numbers to the Oklahoma Employment Security Commission.
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