The 2008 Missouri Legislature has passed and Governor Blunt has signed into law several pieces of legislation that will impact Missouri employers.
HOUSE BILL 1549
The Conference Committee substitute for HB 1549 is an omnibus bill dealing with a variety of issues relating to undocumented workers or illegal aliens. The statute also contains a broad array of employment-related provisions that have little to do with immigration, including the following:
Misclassification of Employees as Independent ContractorsBeginning January 1, 2009, employers with five or more individuals performing public works will be prohibited from “knowingly” misclassifying an employee as an independent contractor. A violation occurs when such an employer fails to claim an individual as an employee, despite knowing that the individual is an employee under applicable IRS tests.
Employers are now required to provide copies of IRS Form 1099-MISC (generally provided to independent contractors) to the Missouri Department of Revenue at the same time that Missouri Form 99’s for employees are due.
The following provisions of HB 1549 deal generally with issues concerning employment of undocumented workers/“illegal aliens:”
OSHA Construction Safety ProgramBeginning August 28, 2009, all contractors performing work on public works projects in Missouri for any public body must provide a ten-hour OSHA construction safety program for their on-site employees. All employees are required to complete the program within 60 days of beginning work on such a project. Penalties of $2,500 plus $100 per employee per day are payable to the public body in the case of violations.
Prohibition on Employing “Illegal Aliens”Beginning January 1, 2009, employers are prohibited from knowingly employing, hiring for employment or continuing to employ any “unauthorized alien” to perform work within the State of Missouri. Unauthorized aliens are aliens who do not have the legal right under federal law to work in the United States.
Employers found to have knowingly employed an unauthorized alien will have their local business licenses, permits and exemptions suspended for fourteen days for a first violation. A second violation will lead to a one-year suspension and a third or subsequent violation to a permanent suspension. Employers with state contracts, grants or state administered tax credits, tax abatements or loans found to have knowingly employed an unauthorized alien shall have their contract terminated and be suspended or disbarred from doing business with the state for three years and may be required to forfeit up to 25% of the amount of their contract for a first violation. Second or subsequent violations may lead to a permanent suspension or debarment from doing business with the state.
Use of the Federal Employment Verification SystemBeginning January 1, 2009, all public employers and any employers awarded any contract or grant in excess of $5,000 or who receive a state administered or subsidized tax credit, tax abatement or loan must enroll and participate in a federal work authorization program with respect to employees working in connection with the contracted services.
Private employers other than those doing business with the state are not required to participate in a federal work authorization program, but employers who choose to participate in a program are entitled to cite their participation as an affirmative defense to any claim that they have knowingly employed an unauthorized alien.
Employers who terminate unauthorized aliens in accordance with procedures established in the Act are shielded from discrimination claims arising under the Missouri Human Rights Act (but not under federal anti-discrimination laws).
Transporting illegal aliens within Missouri for purposes of employment now constitutes a felony.
EnforcementThe Missouri Attorney General is responsible for enforcing the prohibition on employing unauthorized aliens. Claims may be filed with the Attorney General’s office by any state official, business entity or Missouri resident. A valid complaint must include an allegation describing the alleged violator as well as the actions constituting the violation and the date and location where such actions occurred.
Frivolous claims (i.e., claims not supported by clear and convincing evidence) may result in an award of actual, compensatory and punitive damages against the person or business entity filing the complaint.
HOUSE BILL 1883
Provisions Relating to Driver’s LicensesMissouri will not issue driver’s licenses to undocumented workers/“illegal aliens” and will not recognize driver’s licenses granted to such individuals by other states.
Tests for commercial driver’s licenses are to be administered only in English and no translators are allowed for applicants taking the test.
An additional statute, the Senate Committee substitute for House Bill 1883, contains an important provision restoring a number of the overtime exemptions that are available under the federal Fair Labor Standards Act to employers covered by Missouri’s Wage and Hour Law. In 2006, when State Proposition B was passed, increasing the state minimum wage, the redraft of Missouri’s Wage and Hour Law incorporated only some of the exemptions from minimum wage and/or overtime requirements available under federal law. House Bill 1883 restores the federal exemptions omitted in 2006. The new statute provides that Missouri’s requirement that overtime be paid to individuals working more than 40 hours in a workweek “shall not apply to employees who are exempt from federal minimum wage or overtime requirements including, but not limited to, the exemptions or hour calculation formulas specified in 29 U.S.C. §§ 207 and 213 and any regulations promulgated thereunder.” This language effectively restores all exemptions that are available under federal law including exemptions available to certain commission employees and the partial exemption available to police officers and fire fighters.