Mississippi Labor Laws 101
An understanding of labor law in Mississippi is essential for positive employee relations, and for compliance with state and federal wage and hour laws. Complex legal issues involving unemployment compensation, discrimination, workers’ compensation, or wage and hour claims can be an expensive trap for the unwary employer.
Mississippi employment law is governed by the Mississippi Employment Protection Law (MEPL) and other relevant statutes, as well as by case law (court decisions). Although case law is not binding in Mississippi courts, non-precedential authority can serve as persuasive guidance for judges and attorneys alike. The MEPL was enacted primarily to replace the federal Fair Labor Standards Act (FLSA), which was automatically adopted by Mississippi law after passage of the 1938 FLSA.
Labor law in Mississippi also is governed by federal law, including the FLSA, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA, applies to employers with at least 20 employees), Title VII of the Civil Rights Act of 1964 (applies to employers with at least 15 employees), and Family and Medical Leave Act (FMLA, applies to employers with at least 50 employees). In addition to the FMLA, Mississippi has the state Family and Medical Leave Act , which applies when employees have been employed for less than 12 months and do not meet federal eligibility requirements. The FLSA also applies to public sector employees, and Mississippi law contains no exceptions for such public sector workers. Federal law preempts state law in any circumstance in which Mississippi law provides less protection, substantially similar protections, or fewer protections to employees. State law may afford rights even greater than federal law. For example, Section 1983 of title 42 U.S.C. provides a private right of action for violations of employees’ rights under the U.S. Constitution. For public sector employees, the general rule is that 42 U.S.C. 1983 does not apply to violations of employment or common law constitutional torts. However, thus far, the Fifth Circuit Court of Appeals has held in three separate cases that the Fourteenth Amendment to the United States Constitution provides public employees an independent cause of action against their employers for deprivation of a substantive due process property right in continued public employment. See Garcia v. City of Laredo, 560 F.3d 629 (5th Cir. 2009); Serna v. Colorado, 455 F.3d 576 (5th Cir. 2006); Vandevere v. City of Lawrence, 849 F.2d 1043 (5th Cir. 1988). In other words, Mississippi law provides the opportunity for such lawsuits to employees of state and local government.
Wage and Hour Overview
Wage and hour laws in Mississippi are governed by both state and federal law. The minimum wage in Mississippi is $7.25 per hour, which is the same as the current federal minimum wage. An employee who works more than 40 hours in a workweek is entitled to overtime pay at the rate of one-and-one-half times the regular hourly rate.
Overtime is not owed if the employee works in certain exempt positions. Examples of exempt positions include administrative, executive, learned professional, computer professional, highly compensated executive and outside sales. Other exemptions to overtime are available for teachers, agricultural employees, public employees, truck drivers, railroad workers, airplane pilots, seamen and certain youth workers.
Under Mississippi law, extra compensation is owed to nonexempt employees who work on Sundays, public holidays or in some cases, nights. The amount owed to employees may be double time under certain circumstances.
Mississippi does not require employers to provide meal or rest breaks. However, if an employer does choose to provide breaks, then certain rules apply. For example, a paid break must last between 10 and 20 minutes. A lunch or other unpaid break must last at least 30 minutes. If a nonexempt employee is required to take a lunch break, but the break is interrupted or cut short, then the employee will be owed hours worked for that interrupted time.
Workers’ Rights and Protections
Employees in Mississippi have a number of protections under various federal and state laws. For instance, federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) protect employees from discrimination based on race, sex, national origin, color, age, or disability. Additionally, Mississippi protects employees from wrongful termination in specific circumstances, such as when an employee is fired for refusing to participate in illegal activities or when an employee files a workers’ compensation claim. If an employee reports her employer’s unlawful activity, she also has protection under federal whistleblower laws that prevent retaliation against employees who report violations of the law.
Further, under the Mississippi Workers’ Compensation Law, an injured employee who works for a subscriber is entitled to workers’ compensation benefits for injuries occurring in the scope and course of employment. Subscribers to workers’ compensation insurance are employers who subscribe to the Workers’ Compensation Act under the Act or their insurers. All other employers are known as non-subscribers.
Employees also have the right to workplace safety under the Occupational Safety and Health Act of 1970 (OSH Act). The OSH Act and state-administered plans set enforceable safety and health standards for employee work environments.
Classification and Misclassification of Workers
Worker Misclassification & Key Takeaways
Misclassification of employees as independent contractors translates into a host of problems for businesses. This is one area where the stakes are high and Mississippi law imposes severe sanctions against businesses. The test for determining whether a worker is an employee or independent contractor is the right to control the work. Medlin v. HomeServe USA, Mississippi, LLC, 2015 WL 4456513, *1 (S.D. Miss. July 20, 2015). This is a "totality-of-the-circumstances test." Id. This test has been adopted in Mississippi under the Wage Payment Act. See Miss. Code Ann. Sections 25-7-91, 25-7-93, 25-7-97. The test is also applied in other areas such as income tax withholding. See IRS Publication 15A "Social Security and Other Information for Employees About Your Form W-4." The IRS looks at the following factors to see if the right to control exists: Miss. Code Ann. Section 77-3-59 prohibits misclassification of workers. The statute provides substantial penalties against companies in the event a company misclassifies workers. Section (2) provides that in event of misclassifying workers a company will be liable for: A company is also liable for interest at the rate of 1.5% per month on all wages found due until the judgment is paid. This can add up quickly (see §(b)). If a company employs 10 people, misclassifies them as contractors and does not pay the wages owed-the company could owe more than $1 million in penalties. In addition, the company would have to pay unpaid wages. If the company misclassifies hundreds of workers, penalties could add up into the tens of millions of dollars. It is critical for companies to make sure that there is no misclassification of workers. As noted above, there are significant penalties (at a minimum) for misclassification of a worker.
FMLA and Sickness Leave
Employees working in Mississippi are entitled to much less leave than what is provided by the FMLA. The Mississippi Workers’ Compensation Act provides for up to one year of leave to employees for serious health condition; however, the leave must be part of their workers’ compensation benefits.
The FMLA provides substantial leave for eligible employees working for large employers. The FMLA requires covered employers to provide unpaid leave to eligible employees for certain family and medical reasons, such as the birth or adoption of a child; the care of a family member with a serious health condition; or the employee’s own serious health condition. An eligible employee is one who has worked for his or her employer for at least 12 months, has worked at least 1,250 hours of service in the previous 12-months, and for a covered employer (i.e. , for a private sector employer having 50 or more employees working within 75 miles of each other or for any public sector employer).
The FMLA guarantees leaves of absence for eligible employees of up to 12 weeks in a 12-month period. Employees are entitled to be restored to the same or an equivalent position upon returning from leave. However, key employees may be denied reinstatement if an employee’s absence would cause "substantial and grievous economic injury" to the employer. Employees are not compensated while on leave, but may qualify for up to 39 weeks of paid benefits under the Mississippi Employment Security Law replacing 50% of the employee’s wages during the leave.
Employers are not covered by the FMLA simply because they provide additional leave. Under Mississippi law, an employer’s leave policy that exceeds the FMLA will not count against the employee’s 12-week allowance under the FMLA.
Termination and Employment at Will
Under Mississippi law, absent a contractual agreement to the contrary, most employment is "at will," meaning an employee can be terminated with or without cause at any time. However, through the years, the legislature and courts have carved out some exceptions to the at-will doctrine.
Mississippi does not recognize a general public policy exception to the at-will doctrine. The Mississippi Supreme Court has, however, recognized a narrow exception to the at-will doctrine for employees who are discriminated against in violation of the Mississippi Workers’ Compensation Act and the Mississippi Wage Payment and Collection Act.
The Mississippi Legislature has also created a public policy exception to the at-will doctrine. Once a statutory public policy has been established, courts may recognize a public policy exception for discharges which violate such public policy. Moreover, the right to strike has been recognized by the National Labor Relations Act (NLRA) as a federally protected right. Consequently, Mississippi courts have recognized the right to strike as a statutory public policy that carves out a narrow exception to the at-will doctrine.
The Mississippi Supreme Court has ruled that an employer that terminates employment for an employee’s absence from work due to his or her participation in union activities has wrongfully terminated that employee for exercising a statutory right under the NLRA. Thus, the general rule that absent more than 90 days of absence, an employee who is absent from work is considered to have voluntarily terminated his employment with the company does not apply where the employee’s absence is protected under the NLRA.
Moreover, in an effort to stem the tide of employment discrimination, the United States Congress enacted several statutes concerning the discipline and termination of employees. For example, the Employee Retirement Income Security Act (ERISA) protects workers’ retirement benefits. The Occupational Safety and Health Act (OSHA) protects employees from termination for refusing to engage in unsafe work practices. The National Labor Relations Act (NLRA) protects employees from discharge for union membership. The Employee Polygraph Protection Act (EPPA) protects employees from discharge for refusing to take a lie detector test.
Notably, although there are a few state and federal statutes associated with discharge and discipline, unlike some other states, the legislature has failed to codify a general tort action for wrongful discharge in Mississippi. Likewise, the Mississippi Supreme Court has refused to recognize a common law claim for wrongful discharge. Thus, although Mississippi employees may be protected under various state and federal statutes prohibiting discharge in certain situations, except for a few narrow public policy exceptions carved out by the Mississippi Supreme Court, there is no general tort action for wrongful discharge for an employee in Mississippi.
While Mississippi does not have laws regarding implied contracts of employment, the Mississippi Supreme Court has recognized a cause of action for breach of implied employment contract based on a handbook or policy. However, the burden is on the employee to prove a breach of an implied employment contract, which may be difficult when the employment documents clearly state that employment is at will.
Finally, based on Mississippi’s long-standing status as an employment-at-will state, employers do not have a legal duty to provide reasons for an employee’s termination.
Filing a Complaint Regarding Labor Laws
For employees in Mississippi who feel their labor rights have been violated, filing a labor law complaint is the first step toward seeking justice and a potential remedy. These complaints can address issues such as unpaid overtime, workplace safety violations, discrimination, and harassment. Mississippi may be an at-will employment state, but this doesn’t mean you have no recourse if your rights have been infringed upon.
The complaint process traditionally begins when an employee files a grievance about a work situation within the company, which is then usually taken to the human resources representative within the company. In many cases, however, speaking with HR does not result in a fix for the problem. That’s when you may need to take it to the federal or state level.
When filing a complaint, it’s crucial that you follow all regulations. If you don’t follow the procedures properly, you may not have much recourse afterward. There are two aspects of your complaint you need to consider: the substance of the complaint and the process/procedure used. Let’s say you take the proper steps, procedure-wise, but your complaint also contains false or misleading information. In that case, you may find yourself in trouble. Similarly, if your complaint has a sufficient basis in fact, but you didn’t take the right steps in filing it, your effort may not be recognized.
In short, nailing down both the procedure and the substance of the complaint is absolutely essential. Fortunately, this is why having an experienced employment lawyer on your side is a good idea. Your attorney will help advise you on the right steps to take and be there to offer needed guidance throughout the entire process.
Be aware that there are certain fees required when filing a complaint, which can vary by agency and complaint type. For example, in Mississippi, you’ll pay a $350 filing fee to the state Court of Appeals. You can either file online using a credit card or by mail with a check or money order. There are a number of other agencies that require fees for labor law complaints within Mississippi, including the State Board of Public Contractors ($350) and the Mississippi Real Estate Commission ($100). The Office of the Secretary of State does not require a filing fee, but you will need to submit a deposit of $50 per day of the hearing if a settlement is not reached.
It’s worth noting that you need to file your complaint within a certain time limit, which is known as the statute of limitations. This time limit will depend on the area of employment for which you’re seeking justice, as well as the agency with which you’re filing a complaint.
Guides for Workers in Mississippi
The state of Mississippi has a number of resources available to workers in need of information about their rights, as well as advocacy and assistance in filing complaints with employers or agencies. The Mississippi Department of Employment Security handles unemployment insurance and lays off assistance. The Department of Labor administers workers’ compensation and wage laws through its Wage Division. Compliance officers investigate claims, enforce regulations and issue violations, as well as conduct inspections of workplaces . Contact the Department of Labor at 1-800-321-5905 or 601-961-7664.
Mississippi Appleseed is a non-profit advocacy group in the state, working on issues pertaining to low-wage workers, education, voter rights and health care, among other areas. Mississippi Workers’ Center for Human Rights is a non-profit that assists low-income workers and their families. Their offices in Jackson and Biloxi offer free support, including advice and referrals in cases of workplace exploitation, workplace injuries, wage theft, unemployment benefits disputes, domestic violence and discrimination.