From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.
Danna McKitrick attorneys practice across many areas of law, both industry- and service-oriented.
Authored by Ruth Binger with assistance from Sarah L. Ayers
One of the most expansive paid leave laws in the nation has passed in Illinois. When the “Paid Leave for All Workers Act” goes into effect on January 1, 2024, Illinois will be one of only a few states, including Maine and Nevada, that require employers to offer paid leave for any reason or no reason at all.
Who Does the New Law Apply To?
The Paid Leave for All Workers Act applies to all individuals and public and private entities that employ at least one person in the state of Illinois. However, federal government employers, school districts organized under the Illinois school code, park districts organized under the Illinois school code, and employers who have already started to allocate sick leave under the Chicago or Cook County Ordinance are exempt.
“Employees” are broadly defined as “[a]ny individual permitted to work by an employer in an occupation.” The new law applies to in-state employees and remote employees based in Illinois who work 40 or more hours in Illinois within a 12-month period.
Under the Paid Leave for All Workers Act, domestic workers are considered employees, but the following workers are not:
Independent contractors,
Workers who meet the definition of employee under the Federal Railroad Unemployment Insurance Act or Railway Labor Act,
College or university students who work part-time at the institution they attend, and
Short-term employees who work for an “institution of higher learning” for less than two consecutive calendar quarters and do not have an expectation to be rehired.
Another important note is that individual employees cannot waive their rights under the Paid Leave for All Workers Act. However, bargaining unit employees can waive the right in a “bona fide collective bargaining agreement” if it is explicitly stated in “clear and unambiguous terms” within the agreement. Employers who have union employees are required to implement the Paid Leave for All Workers Act, even if it is inconsistent with the terms of the collective bargaining agreement, if the bargaining agreement is not set to expire for several years.
Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Click here to see the first question about non-compete agreements and Ruth’s response.
Firing an employee is always tricky. What are some things owners need to keep in mind if they let an employee go?
It is always hard to fire an employee. Employees strike back in a myriad of ways, some fair and some not so fair, such as filing a discrimination claim with the Missouri Human Rights Commission or the EEOC, complaining bitterly on the Glassdoor website, or, absent a non-compete, going to work for your competition or soliciting your employees and customers.
Positive actions include offering a severance agreement which includes a non-compete. Some employers make introductions to other employers where the fit might be better. This works well if the employee is not being let go because of performance but because of a lack of work or occupying the wrong seat on the bus. You could also put the employee on paid or unpaid leave for 3-6 months until the employee finds a job. It is easier to find a job if you have a job.
How important is it to have the proper documentation before firing an employee?Continue reading »
Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Here is the first question with her response. Click here to see Questions 2 & 3 about things to keep in mind when terminating an employee.
With the tight labor market, business owners are doing everything they can to keep employees. Some are looking at non-compete agreements. Others hope their current agreements will help keep employees in the current environment. What should businesses keep in mind with these agreements?
Non-compete agreements are negative guardrail enforcement to protect your business. To enforce a non-compete, you must be able to prove that the business has a protectible interest in its trade secrets and customer relations and the covenants are reasonable. The key is to have your employees sign non-compete agreements on the first day of employment. If you require that the employees sign the agreement post-hiring, you will have issues with morale (employee may leave) and enforceability. To ensure enforceability of post-hiring agreements, you should consider providing additional consideration, such as bonus, raises, promotions, or benefits. Inception of employment is consideration for the on-hire non-compete.
The term “non-compete” is used to describe three types of restrictive covenants, and people use the term interchangeably. Continue reading »
Missouri’s newly approved constitutional Amendment 3 regarding marijuana use will go into effect on December 8, 2022. With a total of 49 pages, the Amendment 3 has two sections: revised Section 1 (former Amendment 2), which focuses on medicinal use, and Section 2, which focuses on marijuana recreational use.
Employers have long had Drug-Free Workplace policies that test employees for various illegal drugs. Common tests are pre-employment, random, reasonable suspicion, and fitness for duty/return to work/follow up after rehab or last chance.
The original Amendment 2 regarding medicinal use was passed in 2018. Employers responded to this amendment in several ways including choosing to keep their policies the same but providing reasonable accommodation under the disability statutes or to simply quit testing for THC altogether except for reasonable suspicion.
Now, employers will have to go back to the drawing board.
Section 1 of Amendment 3 revises the original Amendment 2 in its entirety. One of the revisions/additions includes adding a nondiscrimination in employment section. It prohibits employers from discriminating against “medicinal cardholders” based on off-duty use unless the person was “under the influence of medical marijuana” at or during work. Further, it specifically prevents employers from relying solely on a positive THC test result to terminate a medicinal cardholder unless the person used, possessed, or was “under the influence” of medical marijuana at or during work.
There are exceptions to the “under the influence test” for medicinal cards for the following situations:
If the employer would lose a monetary or licensing related benefit under federal law,
If the employee has a job where “legal use of a lawful marijuana product affects in any manner a person’s ability to perform job-related employment responsibilities, or
If it conflicts with a bona fide occupational qualification that is reasonably related to a person’s employment.
This exception protection does not appear to apply to “recreational” users who do not have a “medicinal card.”
There is no readily available test to scientifically confirm whether someone is “under the influence of marijuana” nor what the threshold of impairment is under BAC for alcohol. How long a person will test for marijuana depends on a multitude of factors but is not limited to: Continue reading »
Authored by Ruth Binger with assistance from Sarah L. Ayers, contributor
The recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization triggered a ban on abortion in Missouri and several states. In 2019, Missouri passed the “The Right to Life of the Unborn Child Act,” an anti-abortion bill which included a trigger ban on abortions. In the event Roe v. Wade was ever overturned, the Governor or Attorney General was to issue a statement implementing the ban. Missouri Attorney General Eric Schmitt issued a statement proclaiming the trigger law in effect as of Friday, June 24, 2022, at 9 a.m. following the Dobbs decision.
A variety of new legal questions related to abortion and healthcare have arisen since the decision was announced and states, such as Missouri, have enacted trigger bans. One example of the confusion involves life-saving abortions in cases of a medical emergency. Under a new regulation issued by the Biden administration, a life-saving abortion in cases of a medical emergency is a federally protected procedure. Leaders in several states have challenged the regulation.
Another issue lies with pre-Roe bans in states which outlaw abortion and whose legality today is still questionable even with the reversal of Roe. Many states with pre-Roe bans are in the process of putting updated laws on the books that either re-affirm restricting abortion or protect abortion. Kansas voters recently rejected a proposed state constitutional amendment stating there is no right to abortion within the state. Other questions raised include: How will the laws be enforced? Who can be charged with conspiracy in states under a ban (such as Missouri)? Can a state with an abortion ban exclude a fetus from being considered a person in other areas of the law? Continue reading »
Businesses are to avoid potentially deceptive conduct that would confuse consumers under Section 5 of the Federal Trade Commission Act, and the FTC is now focusing very heavily on deceptive customer reviews and endorsements. Deceptive conduct includes any conduct which treats positive and negative reviews unequally, thus misleading consumers of useful information and inflating the product’s star rating.
In one of its first cases, the FTC pursued Fashion Nova, LLC, a fast fashion retailer that attempted to conceal negative reviews. According to the complaint, “Fashion Nova used a third- party online product review management interface to post four- and five-star reviews and hold off on lower star reviews [estimated in the hundreds of thousands] for the company’s approval.” Fashion Nova never approved or posted the lower star reviews. In its settlement with the FTC, Fashion Nova is prohibited from suppressing customer reviews of its products and is required to pay $4.2 million to settle the FTC’s allegations.
What does this mean for businesses that use or consult regarding consumer reviews? Continue reading »
Authored by Attorney Ruth Binger and with assistance from Haley E. Gassel, contributor
College athletes generate billions of dollars in revenue for their colleges and universities. As athletes are realizing their value to college sports, they have increasingly engaged in collective action and sued to be considered employees. A recent memorandum by General Counsel of the National Labor Relations Board (NLRB) puts this issue on the forefront, indicating that the NLRB is classifying college athletes at academic institutions as employees under the National Labor Relations Act (NLRA).
In National Collegiate Athletic Association v. Alston, the Supreme Court held that the NCAA’s restrictions on student athletes being compensated fell within antitrust scrutiny. The unanimous court ruled unanimously that the NCAA cannot prevent athletes from receiving education-related benefits, such as scholarships for graduate or vocational school, payments for academic tutoring, or paid post eligibility internships. The Supreme Court has recognized that college athletes are not amateurs, and they contribute to a profit-making enterprise. Additionally, in Johnson v. NCAA, a federal judge in Pennsylvania held that a group of student athletes plausibly alleged that they were employees of their colleges and universities and allowed their action against their colleges and universities under the Fair Labor Standards Act to proceed. Overall, courts are signaling a willingness to consider arguments that student athletes should be classified as employees. Continue reading »
On December 2, 2021, President Biden announced that the Departments of Labor, Treasury, and Human Resources (“Departments”) would issue guidance by January 15, 2022, to clarify that individuals who purchase Over The Counter COVID-19 Diagnostic tests (“OTC Tests”) during the public health emergency will be able to seek reimbursement from their group health plans or health insurance plans insurers (Collectively “Plans”).
On January 10, 2022, the Departments updated their guidance to generally require coverage of OTC tests, with or without a prescription or individualized clinical assessment by an attending health care provider. The Plan cannot impose cost-sharing requirements, prior authorization, or other medical management requirements. The test needs to be for Plan participant’s personal use or for a family member enrolled under the Plan.
Due to the pandemic and labor shortage, Missouri courts have not had an opportunity to consider Amendment 2 and employment issues related to medical marijuana in the workplace. Amendment 2 allows state licensed physicians to recommend medical marijuana to patient employees diagnosed with chronic debilitating conditions. It also protects employees with a medical marijuana card issued by the Department of Health and Senior Services (DHSS) from being terminated unless the employer proves that the employee is “under the influence of marijuana.”
There are no reliable tests available yet to scientifically confirm if someone is “under the influence” of marijuana. A person will test positive for marijuana for up to 25 days after use. However, there are impairment tests on the market that can help determine whether workers in safety-sensitive positions are at risk by testing current fitness for duty. Those tests include computer-based alertness tests similar to a video game and apps that test for cognitive and motor impairment. Some tests take 20 seconds and are advertised as testing for fatigue, dehydration, emotional distress, alcohol, cannabis, etc.
Without more guidance, employers will have to create Observed Behavior tests that are signed by company personnel to bolster an argument of “under the influence.” Further, because Amendment 2 is a constitutional amendment, it would necessarily trump existing Missouri law found in laws such as workers’ compensation and unemployment statutes.
Another possible employee defense is an Americans with Disabilities Act (ADA) defense where the employee is taking physician-prescribed medical marijuana for a chronic debilitating condition that is protected by the disability laws. Missouri has no case law at this time. U.S. case law trends are that when courts are asked to apply federal law (the ADA) versus state law (i.e., Missouri Human Rights Act), federal courts are not finding a protected disability due to the employee using an illegal drug. Continue reading »
According to Ruth, the fact that the vaccination does not yet have FDA approval is keeping many companies from considering a mandatory vaccination policy at this time. To date, none of her clients have a mandatory policy in place. “I do think it’s changing a little bit because of the Delta variant, and now [companies are] thinking about whether or not they should have a mandatory policy.”
Ruth said that another concern employers about enforcing a mandatory COVID-19 policy is the national worker shortage. Continue reading »
One of the most expansive paid leave laws in the nation has passed in Illinois. When the “Paid Leave for All Workers Act” goes into effect on January 1, 2024, Illinois will be one of only a few states, including Maine and Nevada, that require employers to offer paid leave for any reason or no reason at all.
Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. 
With the tight labor market, business owners are doing everything they can to keep employees. Some are looking at non-compete agreements. Others hope their current agreements will help keep employees in the current environment. What should businesses keep in mind with these agreements?
Missouri’s newly approved constitutional Amendment 3 regarding marijuana use will go into effect on December 8, 2022. With a total of 49 pages, the Amendment 3 has two sections: revised Section 1 (former Amendment 2), which focuses on medicinal use, and Section 2, which focuses on marijuana recreational use.
The recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization triggered a ban on abortion in Missouri and several states. In 2019, Missouri passed the “
Businesses are to avoid potentially deceptive conduct that would confuse consumers under 
On December 2, 2021, President Biden announced that the Departments of Labor, Treasury, and Human Resources (“Departments”) would issue guidance by January 15, 2022, to clarify that individuals who purchase Over The Counter COVID-19 Diagnostic tests (“OTC Tests”) during the public health emergency will be able to seek reimbursement from their group health plans or health insurance plans insurers (Collectively “Plans”).
