While Missouri employers saw few legislative updates that will affect the state of employment law in 2020, the Illinois legislature had a busy year. Below is a look at some of the legislative highlights of 2019 and how they might affect your business in 2020.
In November 2018, Missouri voted to legalize medical marijuana, meaning Missouri residents who obtain physician certification can apply for a medical marijuana license. The Missouri Department of Health and Senior Services (DHSS), which is responsible for issuing licenses to qualified patients, began accepting applications from qualifying patients on July 4, 2019. Among other conditions, qualifying patients are those diagnosed with a “qualifying medical condition,” which includes the condition of, symptoms related to, or side effects from the treatment of cancer, epilepsy, glaucoma, HIV, terminal illnesses and other chronic medical conditions.
While the law is silent on what protections a qualifying patient may have in his or her place of employment, it does expressly state that no qualifying patient may consume marijuana for medical use in a public place, which is defined to include public or private property and businesses. Although consumption is prohibited, it is unclear how Missouri courts would treat an employee with a valid medical marijuana license who was terminated for possessing the marijuana at work or testing positive for marijuana during work hours.
Arbitration agreements signed as a condition of initial employment
Less than two weeks before 2019 began, the Missouri Supreme Court issued its opinion in Soars v. Easter Seals Midwest approving an arbitration agreement signed as a required condition of initial employment. 563 S.W.3d 111 (Mo. 2018). The agreement at issue in the case was offered at the time the employee was hired, and delegated an arbitrator the exclusive authority to resolve disputes relating to the agreement’s interpretation, applicability and enforcement.
When the employee was terminated, he filed suit in state court against the employer for wrongful discharge and race discrimination. The employer moved to enforce the agreement and compel arbitration of the employee’s claims, which the employee opposed and argued, among other things, that the agreement lacked consideration.
In reversing the decision of the lower court, the Missouri Supreme Court found the agreement was valid but distinguished its prior holding in Baker v. Bristol Care, Inc., 450 S.W.3d 770, 776 (Mo. banc 2014), where it held that continued at-will employment is not adequate consideration to enforce an arbitration agreement. The court noted there is a “paramount” difference between considering whether consideration exists in an offer of continued at-will employment and an offer of initial at-will employment.
Kansas City salary history ordinance
Effective Oct. 31, 2019, employers in Kansas City, Missouri, are prohibited from asking applicants about their salary history or inquiring about their current compensation. The ordinance, which notes Kansas City’s larger-than-the-national-average gender pay gap, specifically prohibits employers from screening applicants based on their current or previous wages; using past wage information to determine whether to offer an applicant a position or to determine the applicant’s compensation; and retaliating against, refusing to hire or otherwise “disfavoring” an applicant because the applicant refused to provide his or her salary history to the employer.
Treatment of LGBTQ individuals under the Missouri Human Rights Act
On Feb. 26, 2019, the Missouri Supreme Court issued two significant opinions affecting the protection of LGBTQ individuals under the Missouri Human Rights Act (MHRA).
In Lampley v. Missouri Comm’n on Human Rights, 570 S.W.3d 16 (Mo. 2019), the court held as a matter of first impression that an adverse employment decision based on sex-based stereotypical attitudes of how a member of the employee’s sex should act could support an inference of unlawful sex discrimination. In Lampley, Harold Lampley and Rene Frost, former employees of the Missouri Department of Social Services Child Support Enforcement Division, filed related charges of sex discrimination and retaliation with the Missouri Commission on Human Rights (MCHR). Lampley, a gay man, stated that he “does not exhibit the stereotypical attributes” of masculine behavior, which subjected him to harassment at work. The MCHR determined the discrimination complaints were based on sexual orientation, which is not a protected group within the MHRA, and administratively closed the matter without issuing a right-to-sue letter. On appeal, the Missouri Supreme Court ruled in favor of the employees and held that the discrimination alleged was not based on sexual orientation, but rather sex stereotyping, which does fall under the category of sex in the MHRA.
In R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420 (Mo. 2019), a female-to-male transgender student brought a suit against the Blue Springs school district and school board, alleging discrimination in the use of a public accommodation on the basis of his sex. Specifically, R.M.A. alleged unlawful sex discrimination when he was prohibited from using the boys’ restrooms and locker room because he “is transgender and is alleged to have female genitalia.” The Circuit Court of Jackson County granted the defendants’ motion to dismiss R.M.A.’s petition for failure to state a claim in that, among other arguments, the MHRA does not cover claims based on gender identity. On appeal, the Missouri Supreme Court held R.M.A. adequately alleged that he was a member of a protected class in stating that his legal sex was male.
Artificial Intelligence Video Interview Act
This statute, the first of its kind in the country, aims to regulate the use of technology in the workplace by placing restrictions on the use of artificial intelligence (AI) in screening job applicants. Employers who wish to use AI to screen applicant videos must first notify applicants that AI will be used to analyze video interviews and provide information about how the AI evaluates individuals. Employers must also receive consent from applicants for their videos to be evaluated by AI and must destroy interview videos upon request.
The statute is an extension of the state’s growing body of law allowing individuals more control over their personal data. However, the act does not provide a private right of action or even define critical terms such as “artificial intelligence.”
Illinois residents and visitors over age 21 are now allowed to purchase, possess, use or transport cannabis for recreational purposes. Recent amendments to the Cannabis Act provide guidance for employers struggling with how to handle employee use of cannabis in the wake of the act’s passage. For a more in-depth discussion of related issues Illinois employers should consider, click here.
Equal Pay Protections
Amendments to the Illinois Equal Pay Act, effective Sept. 29, 2019, prohibit employers from asking for an employee’s wage history during the hiring process.
Changes to the Illinois Human Rights Act
New amendments to the IHRA expand worker protections and employer obligations in several ways. First, an employee may now bring a claim of discrimination or harassment on the basis of her perceived membership in a protected class rather than upon her actual membership in a class.
The amendments also clarify that employers are responsible for harassment of employees and nonemployees by nonmanagerial or nonsupervisory employees only if the employer “becomes aware of the conduct and fails to take reasonable corrective measures.”
Victims’ Economic Security and Safety Act
VESSA has been expanded to protect victims of “gender violence,” which includes acts of violence that are “committed, at least in part, on the basis of the person’s actual or perceived sex or gender” or that involve “a physical intrusion or physical invasion of a sexual nature under coercive conditions.”
All single-occupancy restrooms in places of public accommodation must now be identified as “all-gender.” These single-occupancy restrooms must be marked in a way that does not indicate any specific gender.
Illinois Workplace Transparency Act
Many Illinois employers are already familiar with the Illinois Workplace Transparency Act (IWTA), which requires annual training on how to identify and prevent sexual harassment beginning Jan. 1, 2020. Among other things, the training must include definitions of sexual harassment, examples of conduct that is unlawful, examples of appropriate and inappropriate conduct by a supervisor, a review of federal and state laws, employees’ rights and available remedies, and a list of responsibilities companies have in handling claims.
What employers might not know is that the IWTA also includes prohibitions that will affect all contracts, agreements, clauses and waivers employers may offer to employees as part of employment or separation agreements. Specifically, Illinois employers should be aware of the following:
- Employers may not unilaterally require arbitration of any claim arising under any law enforced by the Equal Employment Opportunity Commission (EEOC) or the Illinois Department of Human Rights (IDHR).
- Employers cannot condition employment or continued employment on an agreement that has the purpose or effect of preventing individuals from making truthful statements or disclosures about violations of the aforementioned laws (e.g., a confidentiality clause that prohibits reporting of Title VII violations).
- Employers are prohibited from entering into any employment agreement that includes non-disclosure or non-disparagement clauses dealing with claims for harassment or discrimination unless:
- the harassment or discrimination claims arose before the agreement was signed;
- the clauses are mutually agreed upon and benefit both parties;
- the employee is given 21 calendar days to review the agreement before its execution; and
- the employee has seven calendar days after signing the agreement to revoke it.
Finally, starting July 1, 2020, the IWTA requires all private or public employers, labor organizations and parties to a public contract to report annually any settlement, adverse judgment or administrative ruling against them involving harassment or discrimination to the IDHR for the preceding calendar year. This information must include:
- the total number of adverse judgments or adverse rulings during the preceding year;
- whether any equitable relief was ordered against the employer; and
- how many adverse judgments or administrative rulings in each of the following specific categories occurred in the previous year: sexual harassment, discrimination or harassment on the basis of sex, race, color, national origin, religion, age, disability, military status or unfavorable discharge, sexual orientation or gender identity, or on the basis of any other characteristic protected by the IHRA.
If you have questions about any of these Missouri and Illinois updates or would like to discuss how your business may be affected, please contact any of the attorneys in our Employment & Labor Group. To read about national updates in 2019 and 2020 that may be relevant to your business, check out this.