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1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

Certain claims may be asserted before the Missouri Department of Labor and Industrial Relations, the Missouri Commission on Human Rights, and in some instances, local agencies. Most claims may be asserted in courts of general jurisdiction, although certain claims must first be presented to the appropriate administrative agency.


The Main Sources Of Employment Law

Common law, state statutes and state regulations are the main sources of employment law in Missouri. Major state employment statutes include the Missouri Human Rights Act (Mo. Rev. Stat. §§213.010 et seq.), the Missouri Minimum Wage Law (Mo. Rev. Stat. §§290.500 et seq.) and the Missouri Workers’ Compensation Law (Mo. Rev. Stat. §§287.010 et seq.) Individual contracts (whether written or oral) and collective bargaining agreements may also govern the employment relationship.


National Law And Employees Working For Foreign Companies

State law applies to all individuals physically working in the state. Federal law and, in some instances, a national treaty with a foreign government may also apply. The parties may contractually agree to apply a different state’s law in some circumstances.


National Law And Employees Of National Companies Working In Another Jurisdiction

State law applies only when the employee is physically working in the state or when both parties have agreed in writing to the application of Missouri law.


Data privacy

State and federal statutes and regulations related to data privacy are applicable to Missouri employers and employees. Missouri data privacy statutes address such issues as notifications regarding data security breaches (Mo. Rev. Stat. § 407.1500(2)(1)) and the restricted use of social security numbers as employee numbers for any type of employment-related activity (Mo. Rev. Stat. § 407.1355).

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

There are no legal requirements regarding the form of an employment agreement and employment agreements are not required.


Mandatory Requirements
  • Trial Period

    • There is no legal requirement to provide trial periods (also referred to as “probationary periods” or “introductory periods”).

    The terms of a collective bargaining agreement may apply.

  • Hours Of Work

    • There is no restriction on the number of hours employees may be required to work, except for children. However, employees who are non-exempt under state and federal wage and hour laws are entitled to overtime pay at a rate of one and one-half times the regular rate of pay for all hours worked over 40 in a workweek (Mo. Rev. Stat. §290.505). Additionally, an employer is prohibited from denying a person employment or advancement in employment for refusing to work on his or her normal day of worship (Mo. Rev. Stat. §578.115). The terms of a collective bargaining agreement may also apply.

  • Special Rules For Part-time Work

    • There are no legal requirements regarding part-time work, other than general federal and state wage and hour laws.

  • Earnings

    • All non-exempt employees must be paid the federal or state minimum wage, whichever is higher, for all hours worked (Mo. Rev. Stat. §290.502). Exempt employees must be paid certain minimum weekly salaries or fees in accordance with federal law. Missouri employers must provide at least 30 days’ notice of any reduction in the wage rate (Mo. Rev. Stat. §290.100). The terms of a collective bargaining agreement may also apply.

  • Holidays/Rest Periods

    • There are no statutory provisions regarding holidays and rest periods. The terms of a collective bargaining agreement may apply.

  • Minimum/Maximum Age

    • The minimum age for most jobs is 14 years old. Children under the age of 14 are allowed to work only in certain industries. Certain federal and state rules apply to the employment of children under the age of 16 (Mo. Rev. Stat. 294.005 et seq.). There are no maximum age limits. The Missouri Human Rights Act prohibits discrimination on the basis of age for individuals age 40 to less than 70 years of age (Mo. Rev. Stat. §213.010(1)). Federal law and the terms of a collective bargaining agreement may also apply.

  • Illness/Disability

    • There are no statutory provisions regarding illness or disability, such as paid leave. However, federal and state law impose specific anti-discrimination and leave requirements for employees with a disability or serious medical condition. The terms of a collective bargaining agreement may also apply.

  • Location Of Work/Mobility

    • There are no statutory provisions regarding location of work or mobility.

  • Pension Plans

    • There are no statutory provisions regarding pension plans. Federal law may apply.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • There are no statutory provisions regarding pregnancy, maternity or adoption benefits; however, state non-discrimination requirements apply. Federal leave requirements and the terms of a collective bargaining agreement may also apply.

  • Compulsory Terms

    • There are no compulsory terms that must be included in an employment agreement, unless the employment agreement contains an arbitration provision governing resolution of disputes arising from the contract. If the employment agreement contains such a provision, it must contain a notice as specified by Mo. Rev. Stat §435.460.

  • Non-Compulsory Terms

    • The employer and employee may agree to any terms, provided that the terms do not abrogate statutory rights (e.g., employees may not agree to compensation less than the minimum wage or waive their right to overtime compensation).


Types Of Agreement

Employers and employees may enter into a variety of agreements related to the employment relationship including standard employment agreements (regarding hours, wages, benefits, etc.), confidentiality and non-disclosure agreements, non-competition agreements, non-solicitation agreements, etc. Common law and state statutes will determine the enforceability of such agreements.


Secrecy/Confidentiality

There are rules relating to secrecy and confidentiality that are implied in the employment relationship. During the employment relationship, an employee is under a duty of loyalty and must not act contrary to the employer’s interest by, for example, misappropriating trade secrets. Missouri’s Uniform Trade Secrets Act regulates the misappropriation of trade secrets both during and after employment (Mo. Rev. Stat. §§417.450 to 417.467). Employers and employees may also enter into confidentiality and non-disclosure agreements.


Ownership of Inventions/Other Intellectual Property (IP) Rights

There are no statutory provisions regarding employee ownership of inventions and other intellectual property rights. Contractual provisions and federal law may apply.


Pre-Employment Considerations

Missouri statute places certain limitations on a public employer from requesting information about an applicant’s criminal history until later in the application process. Certain municipalities have local ordinances that apply similar limitations to private employers.


Hiring Non-Nationals

Missouri law requires all public employers, any business with a state contract or grant in excess of $5,000, and any business receiving state-administered or subsidized tax credits, tax abatements or loans from the state to participate in the federal E-Verify program (Mo Rev. Stat. §285.530). All employers must ensure that all employees are eligible to work in the United States in accordance with federal law.


Hiring Specified Categories Of Individuals

There are restrictions on the types of work that children may be hired to perform. For example, children under age 16 may not be employed in hazardous or detrimental occupations (Mo. Rev. Stat. §§294.005 et seq.).


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

There are no provisions regarding outsourcing and/or subcontracting. The terms of a collective bargaining agreement may apply.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

Changes to an employment contract are generally governed by the contractual terms and common law. In the case of collective bargaining agreements between public employers and employees that do not provide for at least a sixty-day notice of desired changes, the parties must inform the other party in writing of any specific changes desired and file a copy of such desired changes with the state board of mediation at least sixty days before the date fixed for the termination of the agreement (Mo. Rev. Stat. §295.100).


Change In Ownership Of The Business

There are no statutory provisions regarding change in ownership of the business. Contractual provisions and federal law may apply.


Social Security Contributions

Employers and employees are both required by federal law to make social security contributions. Employers are also required by state law to make contributions for unemployment benefits and may also be required to pay for workers’ compensation insurance (Mo. Rev. Stat. §§288.010 et seq., 287.010 et seq.).


Accidents At Work

Employee injuries occurring at work are governed by the Missouri Workers’ Compensation Law (Mo. Rev. Stat. §§287.010 et seq.). Missouri law prohibits employers from retaliating against employees for exercising their rights under Missouri Workers’ Compensation Laws. Mo. Rev. Stat. §287.780. Employers may also be responsible under common law for accidents caused by the acts of their employees where the employees were acting within the course and scope of their employment. Federal law may also apply.


Discipline And Grievance

There are no statutory provisions regarding discipline and grievances. A collective bargaining agreement or other contract may apply.


Harassment/Discrimination/Equal pay

The Missouri Human Rights Act prohibits discrimination in employment on the basis of race, color, religion, national origin, sex, ancestry, age (40 to less than 70 years of age), or disability (Mo. Rev. Stat. §§213.010 et seq.).

This provision applies to employers with six or more employees. Certain municipalities also prohibit discrimination on these and other bases.

The Missouri Equal Pay Law prohibits employers from paying females a wage rate less than the wage rate paid to male employees who perform the same quantity and quality of the same classification of work (Mo. Rev. Stat. §§290.400 to 290.450). Variation of rates of pay for male and female employees engaged in the same classification of work are only permitted if based upon a difference in seniority, length of service, ability, skill, difference in duties or services performed, difference in the shift or time of day worked, hours of work, or restrictions or prohibitions on lifting or moving objects in excess of specified weight, or other reasonable differentiation, or factors other than sex, when exercised in good faith(Mo. Rev. Stat. § 290.410).

Employers are also prohibited from using genetic information or genetic test results to distinguish between, discriminate against, or restrict the rights or benefits of current or prospective employees (Mo. Rev. Stat. §375.1306). Employers (other than certain religious and non-profit corporations) are further prohibited from denying employment, discharging, or otherwise discriminating against any individual in compensation, terms, or conditions of employment because he or she lawfully uses alcohol or tobacco products off the employer’s premises during non-work hours, unless use interferes with the duties and performance of the employee, the employee’s co-workers, or overall operation of the employer’s business (Mo. Rev. Stat. §290.145).


Compulsory Training Obligations

There are no statutory provisions regarding compulsory training obligations.


Offsetting Earnings

The following deductions from wages are prohibited if they would reduce the wages below statutory minimum: tools; equipment; uniforms; laundry or cleaning of uniforms; maintenance of tools, equipment, or uniforms; breakage or loss of tools, equipment, or uniforms; any other item required by the employer to be worn or used by the employee; or transportation furnished to the employee, if it is an incident of and necessary to the employment (8 C.S.R. §30-4.050). Deductions from wages for garnishments must also comply with state and federal requirements (Mo. Rev. Stat. § 525.030). Any other deductions from wages are prohibited unless agreed to in writing by the employee and do not reduce the employee’s wages below the statutory minimum. At least once a month, employers must furnish to the employee (either as part of the check or separately) a statement showing the total amount of deductions for the period (Mo. Rev. Stat. § 290.080).


Payments For Maternity And Disability Leave

There are no statutory provisions regarding payments for maternity and disability leave.


Compulsory Insurance

Missouri employers with five or more employees must carry workers’ compensation insurance with certain limited exceptions. Employers in the construction industry that have one or more employees are required to carry workers’ compensation insurance (Mo. Rev. Stat. §287.030.3).


Absence For Military Or Public Service Duties

Employers are prohibited from dissuading employees from joining the state militia or retaliating against employees who serve in the militia. Employees who are ordered to active state duty are entitled, upon being relieved from duty, to the same re-employment rights provided for members of the U.S. military (Mo. Rev. Stat. §40.490). Employers are also prohibited from terminating, demoting, or taking any other adverse employment action against a war on terror veteran due to his or her absence while deployed. A War on Terror veteran is considered to have been discharged from employment if he or she is not offered the same wages, benefits, and similar work schedule upon return after deployment (Mo. Rev. Stat. §288.042). Federal law may also apply.

An employer may not discriminate, threaten, discipline, or take adverse action against an employee because of the employee’s jury summons or service. The employer is not required to pay the employee for time away during jury duty. The employer cannot require or request that the employee use annual, vacation, personal, or sick leave for time spent responding to a jury summons (Mo. Rev. Stat. §494.460).

Any eligible voter is allowed 3 hours to vote in all elections unless the employee has 3 consecutive nonworking hours during which the polls are open.

The employee must request a leave of absence to vote prior to Election Day, and the employer may specify which hours may be taken. Deduction from wages is prohibited if the employee votes (Mo. Rev. Stat. §115.639).


Works Councils or Trade Unions

The Missouri Constitution affords the right to all employees to organize and bargain collectively through representatives of their own choosing (Mo. Const. Art. I §29). Federal law may also apply.


Employees’ Right To Strike

The Missouri Constitution affords the right to all employees to organize and bargain collectively through representatives of their own choosing (Mo. Const. Art. I §29). Certain public employees do not have the right to strike (Mo. Rev. Stat. §105.530). Federal law may also apply.


Employees On Strike

The Missouri Constitution recognizes private employees’ right to bargain collectively and has been held to give rise to a wrongful discharge claim where an employer discharges an employee for union activity. Federal law may also apply.


Employers’ Responsibility For Actions Of Their Employees

Under the doctrine of respondeat superior an employer may be liable for the negligent acts or omissions by an employee that are committed within the course and scope of employment. Employers may also be liable for negligent hiring and/or retention where the following elements are met: (1) the employer knew or should have known of an employee’s dangerous proclivities; (2) the employee was hired (or retained in employment); (3) the employer’s negligent act or omission was the proximate cause of an injury sustained by the plaintiff at the hands of the employee; and (4) the employee’s misconduct was consistent with the employee’s dangerous proclivity. For this claim, it is not necessary that the offending conduct occur within the course and scope of employment.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

There are no statutory provisions regarding procedures for terminating an employment agreement. Unless an employment contract with a specific term applies, the employment relationship is at-will and may be terminated at any time. An employment contract or collective bargaining agreement may specify termination procedures.


Instant Dismissal

There are no statutory provisions regarding procedures for instant dismissal of an employee. Unless an employment contract with a specific term applies, the employment relationship is at-will and may be terminated at any time. An employment contract or collective bargaining agreement may contain notice requirements.


Employee's Resignation

There are no statutory provisions regarding employee resignation.

An employment contract or collective bargaining agreement may specify resignation procedures.


Termination On Notice

There are no statutory provisions regarding termination on notice.

An employment contract or collective bargaining agreement may contain notice requirements.


Termination By Reason Of The Employee's Age

The Missouri Human Rights Act prohibits discrimination in employment on the basis of age (40 to less than 70 years of age). This provision applies to employers with six or more employees (Mo. Rev. Stat. §§213.010 et seq.). Federal law may also apply.


Automatic Termination In Cases Of Force Majeure

Missouri has no statutory provisions regarding termination in cases of force majeure.


Collective Dismissals

There are no statutory provisions regarding collective dismissals.

However, when two (2) or more employees are terminated on the same day or within a short period of time for the same reason, such as with a reduction in force, the OWBPA requires employers to include specific language in any severance agreement offered to employees if at least one of them is 40 or older, and a waiver of rights is included. Specifically, the employees that are 40 or older must be given up to 45 days to consider the severance agreement (instead of 21 days), and the employer must provide specific information related to the “decisional unit” of the company affected by the terminations (including ages and positions).


Termination By Parties’ Agreement

The parties are free to terminate the employment relationship on any grounds they desire, except for unlawful reasons proscribed by federal, state or local law.


Directors Or Other Senior Officers

There are no statutory provisions regarding termination of directors and officers. An employment contract may apply and contain termination procedures. The termination of employment does not automatically terminate board membership. Separate steps, generally set forth in the bylaws or articles of incorporation/organization, are required to terminate board membership.


Special Rules For Categories Of Employee

There are no statutory provisions regarding the termination of certain categories of employees; however, termination decisions must comply with the anti-discrimination provisions of the Missouri Human Rights Act.


Specific Rules For Companies in Financial Difficulties

There are no statutory provisions regarding companies in financial difficulty. Federal bankruptcy law, the Employee Retirement Income Security Act, the Worker Adjustment and Retraining Notification Act, and other federal laws may apply.


Restricting Future Activities

Contracts in restraint of trade are unlawful in Missouri, and restrictive covenants limiting individuals in the exercise or pursuit of their occupations are in restraint of trade. However, reasonable non-competition and non-solicitation agreements are permitted between employers and employees in order to protect (1) confidential or trade secret business information; or (2) customer or supplier relationships, good will, or loyalty. The agreement must be reasonable in both duration and geographic scope and must be supported by consideration (at-will employment constitutes sufficient consideration under Missouri law). Enforceability of restrictive covenants is determined on a case-by-case basis. Agreements that prohibit an employee (other than a secretarial or clerical employee) from soliciting employees of a former employer are presumed enforceable where they do not exceed 1 year in duration (Mo. Rev. Stat. §431.202). Such agreements with a term greater than 1 year lose that presumption. Agreements that prohibit disclosure of confidential information are generally enforceable. In Missouri, if a court finds that an agreement is too broad, the court has the power to modify the agreement to the extent necessary to make it reasonable.


Whistleblower Laws

Missouri’s Whistleblower Protection Act (Mo. Rev. Stat. §285.575) provides that it is an unlawful employment practice for an employer to discharge an individual protected under the Act. The Act defines “protected person” to be “an employee of an employer who has reported to the proper authorities an unlawful act of his or her employer; an employee of an employer who reports to his or her employer serious misconduct of the employer that violates a clear mandate of public policy as articulated in a constitutional provision, statute, or regulation promulgated under statute; or an employee of an employer who has refused to carry out a directive issued by his or her employer that if completed would be a violation of the law.” Certain exceptions, including supervisory, managerial, or executive employees, will apply to the qualification of a protected person.


Special Rules For Garden Leave

There are no statutory provisions regarding garden leave requirements.


Severance Payments

There are no statutory provisions regarding or requiring severance payments. Severance payments are not required unless the employer and the employee have a contract providing for severance. There are specific rules governing the validity of a release provided in exchange for severance payments.


Special Tax Provisions And Severance Payments

Severance payments are taxed in the same way as other wages. Federal law may also apply.


Allowances Payable To Employees After Termination

Employees may be entitled to unemployment benefits after termination of employment so long as they meet certain requirements (Mo. Rev. Stat. §288.010 et seq.).


Time Limits For Claims Following Termination

Statutes of limitation vary depending upon the nature of the claim.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

Service Letter

Upon receipt of an appropriate request, employers must furnish employees who have been discharged or voluntarily separated with a service letter containing (1) a description of the nature and character of the employee’s work; (2) the duration of the employee’s service; and (3) the true reason that the employee was discharged. This requirement applies to employers of 7 or more employees, each of whom must have been employed for at least 90 days before discharge or voluntary separation. Employee requests must be in writing, must be sent to the employer by certified mail within a reasonable period, but not later than one year after the date of separation, and must include specific reference to the state law that entitles the worker to the letter. The employer is required to issue the service letter within 45 days after receiving the request (Mo. Rev. Stat. §290.140).

Health Insurance Continuation

Missouri law requires employers with fewer than 20 full-time employees to offer health insurance continuation upon a qualifying event in the same manner as continuation of coverage is required under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) (Mo. Rev. Stat. §376.428).

Microchip implant

State law prohibits an employer from requiring an employee to have a personal identification microchip technology implanted into an employee for any reason. (Mo. Rev. Stat. §285.035).



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Mary Kathryn Curry
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Disclaimer:

© 2021, Polsinelli. All rights reserved by Polsinelli as author and the owner of the copyright in this chapter. Polsinelli has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021