WEEKLY LOBBYIST REPORT
May 17, 2017
The Missouri General Assembly concluded the 2017 session on Friday at 6:00 p.m. as provided by the Missouri Constitution. In all, the legislature passed only 67 bills out of 1,941 bills, joint resolutions and concurrent resolutions filed, a historic low number of truly agreed to and finally passed bills. Additionally, and as required by the constitution, the legislature passed 14 budget bills allocating $27.9 million in funding.
During the final week of session, the Missouri House worked in mechanical fashion to pass a number of bills and send them to the Governor’s desk for consideration. Many of the bills passed in the final two days of session were conference committee substitutes and reports that had been agreed upon during conference committee meetings.
The long-expected meltdown of the Senate occurred on early Friday afternoon as several issues brought the Senate to a virtual standstill. One issue was the defeat of legislation sponsored by Senator Maria Chappelle-Nadal relating to a buy-out of homes owned by families impacted by an underground burning landfill in Bridgeton, Missouri. That defeat resulted in her capturing the floor of the Senate and reading a book in protest. Secondly, Senate leadership organized and effected the use of the previous question (cloture) relating to a bill prohibiting political subdivisions from implementing ordinances that establish a minimum wage that varies from the state’s minimum wage. That motion to close debate brought the body to a standstill as Democrats used every available procedural rule to slow down passage of the bill. After over two hours of motions and roll calls, the bill passed and was one of the final bills to be sent to the House which promptly accepted the bill and sent it to the Governor. The minimum wage debate became so vitriolic that it prompted Senate Majority Floor Leader Mike Kehoe to immediately adjourn at 5:00 p.m., a full hour before the constitutional deadline.
Governor Eric Greitens (R) declared the session incomplete and indicated that he would call the General Assembly back into special session(s) sooner rather than later. Greitens was quoted saying that “Sometimes when you don’t complete all of your work, you need to go to summer school.” Greitens is expected to push for several issues during one or more special sessions including additional tort reform, charter schools, additional legislation relating to organized labor and, potentially, legislation relating to utility ratemaking and the reopening of an aluminum plant in Southeast Missouri. It should be noted that the Governor would need to come to some agreement with the leadership of the House and Senate to push an agenda in special session.
Several Statewide Issues that Passed
- Legislation that would prohibit political subdivisions from enacting an ordinance that institutes that varies from the state minimum wage;
- Right-to Work legislation that prohibits mandatory union membership and the withholding of dues, fees and other payments from workers’ paychecks;
- Budget related legislation that would prevent cuts to low-income elderly and disabled citizens receiving in-home and nursing home care;
- A “Blue Alert” program designed to assist law enforcement in efforts to rapidly respond to incidents involving the harm to or death of law enforcement officers;
- Legislation regulating and taxing ride sharing companies such as Uber and Lyft;
- A House concurrent resolution establishing the “21st Century Transportation Task Force” charged with analyzing the need for additional transportation funding and making recommendations to the General Assembly;
- Expert witness legislation that permits a judge to decide who qualifies as an expert base upon scientific bona fides;
- Budget legislation that, for the first time in history, fully funds the foundation formula for K-12 education;
- Legislation relating to workforce discrimination that increases the standard of proof that plaintiffs alleging discrimination must meet in court cases;
- REAL ID provisions that permits citizens to choose a Missouri driver’s license that conforms to provisions of the federal REAL ID Act of 2005 and enables them to fly and have access to certain federal and military facilities;
- Legislation relating to project labor agreements that prohibits cities and counties from requiring nonunion contractors from paying union wages for public projects;
- Legislation known as “collateral source” that limits medical damages paid in lawsuits to the cost of actual care rather than what is billed for care;
- Budget bill that for all two and four year institutions of higher learning cuts core budgets by 6.5%.
- Legislation that would exempt delivery charges from sales taxes;
- Language added a bill relating to taxes for the St. Louis zoo that would again provide a year’s hiatus of implementing a court order relating to taxation of data and telecommunications equipment.
Several Statewide Issues that Failed to Pass
- Legislation enacting a prescription drug monitoring program intended to enact a database to track opioid drug use;
- Legislation that would enable a buy-out of properties in and around a landfill in Bridgeton Missouri that some claim is poisoning citizens with radioactive waste;
- Legislation relating to the setting of rates relating to electric publicly-owned utilities which, in the final week of session was tied to provisions that would have established preferred electrical rates for a joint steel and aluminum manufacturing plant in Southeast Missouri;
- Legislation that would have placed restrictions on the judicial issues relating to joinder and venue for class action suits and that would have further regulated lawsuits relating to lawsuits relating based upon Missouri’s Merchandising Practices Act;
- Legislation relating to arbitration agreements between employers and employees.
Bills of Interest which Passed this Session
HB 153 — EXPERT WITNESSES
This bill specifies that a witness who is qualified as an expert may testify in the form of an opinion or otherwise if the expert’s specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied the Page 9 of 68 principles and methods to the facts of the case. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, such facts or data need not be admissible for the opinion to be admitted. However, if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. An expert opinion is not objectionable just because it embraces an ultimate issue. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. The bill specifies the provisions do not prevent a landowner from testifying as to the value of their land. Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or data. However, the expert may be required to disclose those facts or data on cross-examination. Certain actions are excluded from the provisions of this bill, including actions in the family courts, juvenile courts, the probate division, and all other actions or proceedings in which there is no right to a jury trial.
SS SCS HCS HBs 339 & 714 — TORT CLAIMS
This bill modifies provisions relating to tort claims.
SETTLEMENT OF TORT CLAIMS
This bill provides that a time-limited demand to settle any claim for personal injury, bodily injury, or wrongful death must be in writing and sent by certified mail to the tortfeasor’s liability insurer, and it must include various material terms specified in the bill. Additional information, as provided in the bill, must accompany the demand including authorizations to allow the party to obtain records from all employers and medical care providers. Upon receipt of a time-limited demand, a recipient may ask for clarification of the terms without it being considered a counteroffer or rejection of the demand. After acceptance of the time-limited demand, the defendant may provide payment to the claimant in the form of cash, money order, wire transfer, cashier’s check, draft or bank check, or electronic funds transfer. A claimant may require payment within a specified period of time, but cannot be less than 10 days after written acceptance of the time-limited demand. This bill does not apply to offers made within 90 days of the trial (Section 537.058, RSMo).
This bill specifies that if a person who has a claim for damages against a tort-feasor enters into a contract with a tort-feasor’s insurer, such person will, in consideration for payment of a specified amount of money and in case of judgment against the tortfeasor, levy execution only up to the applicable monetary limits of the insurance contract. The bill also specifies that execution or garnishment proceedings as to the insurer or insurers depend on whether the insurer or insurers have been notified in writing of the contract and have been given the opportunity to intervene within 30 days in any lawsuit relating to the un-liquidated claim for damages (Section 537.065).
CCS SB 8 – TRANSPORTATION
This bill relates to transportation. In its main provisions the bill: (1) Allows the use of both red and blue lights and white and amber lights in specified circumstances for the Department of Transportation, utility workers, and contractors thereof (Section 307.175, RSMo); (6) Creates a graduated tax system for propane fueled vehicles. Tax rates are specified in the bill and the taxes are collected and used for the same purposes as the state road tax. Propane fueled vehicles may continue to apply for and use alternative fuel decals in lieu of paying the tax. No fuel decal is required for vehicles that fuel at stations collecting the new propane tax, however, there is no refund policy for vehicles with fuel decals that choose to obtain fuel at unattended stations where tax is automatically collected at the point of sale. This bill also requires owners of new electric hybrid cars with a model year of 2018 or newer to pay one-half of the stated annual alternative fuel decal fee for recharging at electrical power sources (Sections 142.800, 142.803, and 142.869).
FEDERAL MANDATE PROVISIONS
In its main provisions, the federal mandate specifies: (9) Update language to reflect the State Highways and Transportation Commission.
SS#2 SB 19 — LABOR ORGANIZATIONS
This bill prohibits employers from requiring employees to join or refrain from joining a labor organization, requiring employees to pay any money to a labor organization, or requiring employees to pay any charity or third party the equivalent of money required to be paid by members of a labor organization. Any current agreement between an employer and labor organization contrary to this provision is exempted from these restrictions, but such restrictions shall apply to any current agreement that is later renewed, extended, amended, or modified. Anyone violating a provision of the bill will be guilty of a class C misdemeanor, and any person injured as a result of a violation or threatened violation of the provisions of the bill may recover all resulting damages, including costs and reasonable attorney fees, and will be entitled to injunctive relief against any violator or person threatening a violation. The prosecuting attorney, circuit attorney, or Attorney General of this state shall investigate and prosecute complaints of violations or threatened violations.
SS SB 31 — COLLATERAL SOURCE RULE
This bill specifies that special damages claimed by the plaintiff at trial that have been satisfied by a payment from a defendant, the defendant’s insurer, or an authorized representative prior to trial are not recoverable. The defendant is entitled to deduct such payments toward special damages from any judgment as provided in current law. Parties may introduce evidence of the actual cost, rather than the value, of the medical care or treatment rendered to the plaintiff. The bill repeals a provision of law which provides that there is a rebuttable presumption that the value of the medical treatment provided is represented by the dollar amount necessary to satisfy the financial obligation to the health care provider. The actual cost of the medical care or treatment cannot exceed the dollar amounts paid by or on behalf of a patient whose care is at issue plus any remaining amount necessary to satisfy the financial obligation for medical care by a health care provider after adjustment for any contractual discounts, or price reduction.
SS#2 SCS SB 43 — UNLAWFUL DISCRIMINATORY PRACTICES
This bill changes the laws regarding unlawful discriminatory employment practices and establishes the “Whistleblower’s Protection Act.”
UNLAWFUL DISCRIMINATORY EMPLOYMENT PRACTICES
The bill specifies that the term “because” or “because of,” as it relates to a decision or action, means that the protected criterion was the motivating factor. The term “the motivating factor” means that a protected classification played a role in and had a determinative influence on an adverse employment action. The bill also revises the term “employer” by excluding those persons acting in the interests of the employer. The definition of employer further specifies that, with certain exceptions, an employer is a person engaged in an industry affecting commerce who has six or more employees for each working day in each of 20 or more weeks in the current or preceding year. Chapter 213, RSMo, human rights; Chapter 285, employers and employees generally; and Chapter 287, workers’ compensation law, provide the exclusive remedies for damages arising out of the employment relationship. The bill establishes a presumption that, for a fair presentation of a case, a jury must be given an instruction expressing the business judgment rule. The bill provides that the court shall consider the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973) in cases not involving direct evidence. The bill specifies that an award of damages may include all future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and punitive damages. The amount of damages awarded for each plaintiff cannot exceed the amount of the actual back pay plus interest, and up to $50,000 in the case of an employer with six to 100 employees; up to $100,000 for an employer with 101 to 200 employees; up to $200,000 for an employer with 201 to 500 employees; and up to $500,000 for an employer with more than 500 employees. The bill specifies that in an employment-related action brought under Chapter 213, the plaintiff bears the burden of proving that the alleged unlawful decision or action was made or taken because of the protected criterion. Any party to an action under this section may demand a trial by jury.
WHISTLEBLOWER’S PROTECTION ACT
This bill establishes the Whistleblower’s Protection Act which codifies existing common law exceptions to the at-will employment doctrine. The provisions of this bill provide the exclusive remedy for all unlawful employment practices specified in the bill. The bill provides that it is an unlawful employment practice for an employer to discharge or retaliate against an individual because of his or her status as a protected person. The bill defines a “protected person” as a person who has reported to the proper authorities an unlawful act or serious misconduct of the employer that violates a clear mandate of public policy. A “protected person” also includes a person who has refused to carry out a directive issued by the employer that if completed would be a violation of the law, or a person who engages in conduct otherwise protected by statute or regulation. Specified persons are excluded from the definition of a “protected person.” The term “employer” is defined as an entity that has six or more employees, excluding the state and other public bodies, an individual employed by an employer, and certain religious or sectarian groups. The term “proper authorities” is defined as a governmental or law enforcement agency or officer, or the employee’s human resources representative employed by the employer. A protected person aggrieved by a violation of these provisions shall have a private right of action for actual damages, unless a private right of action for damages exists under other statutes or regulations, either federal or state. The only remedies available are back pay, and, if the protected person proves outrageous conduct, an additional double amount as liquidated damages. The court may also award the prevailing party court costs and reasonable attorney fees. Any party to an action under these provisions may demand a trial by jury. This bill contains a severability clause.
HCS SS SCS SB 66 — WORKERS’ COMPENSATION
This bill changes several provisions of the workers’ compensation laws. This bill defines the term “maximum medical improvement.” Beginning January 1, 2018, the bill allows certain shareholders of an S corporation to elect to reject workers’ compensation coverage (Section 287.037, RSMo). The bill clarifies who qualifies as a decedent’s dependents entitled to compensation if the worker dies as a result of a work related injury (Section 287.240). Under certain conditions, this bill specifies that a positive test result for a non-prescribed controlled drug creates a rebuttable presumption that the employee’s injury was sustained in conjunction with the use of the drug. Temporary total disability and temporary partial disability benefits are not payable if the employee voluntarily separates from work when the employer had work available in compliance with any medical restrictions imposed on the employee. If temporary benefits are terminated, the employee is entitled to a hearing within 30 days to dispute the termination. The bill further changes the provisions of the Line of Duty Compensation Act. The bill defines the term “child” and clarifies how compensation payable under the act should be distributed to the decedent’s survivors (Section 287.243). New applicants to specified self-insured trusts shall submit to the Division of Workers’ Compensation proof of payment of 25% of the estimated annual premium. Self-insured trusts may invest surplus moneys from a prior trust year not needed for current obligations. In the case of an offer of compromise settlement after the employee has reached maximum medical improvement, the employee shall have 12 months to obtain a second permanent disability rating. The bill modifies the retaliation standard under the workers’ compensation laws, providing that no employer may discharge or discriminate against an employee when the employee’s exercise of any rights under Chapter 287 was a motivating factor in the discharge or discrimination (Sections 287.120, 287.170, and 287.780).
SS SB 182 — PROJECT LABOR AGREEMENTS
Currently, the state, or any agency or instrumentality of the state is prohibited, from requiring, or prohibiting, bidders from entering into agreements with labor organizations when entering into contracts for the construction of public projects funded by more than 50% by the state. This bill removes the 50% funding threshold and further prohibits the state, any agency, or political subdivision, or instrumentality of the state from requiring, or prohibiting, bidders from entering into agreements with labor organizations when entering into contracts for the construction, repair, remodeling, or demolition of a facility. Discrimination against such bidders is also prohibited. Moreover, the state, any agency, political subdivision, or instrumentality of the state, shall not encourage or give preferential treatment to bidders who enter or refuse to enter into agreements with a labor organization. Any entity which violates the provisions of this act is liable to the person affected for equitable damages as well as reasonable attorney’s fees. Furthermore, such entities shall not be eligible for state funding, including tax credits for two years. The bill gives investigatory authority to prosecuting attorneys, circuit attorneys, and the Attorney General for complaints of violations of this bill. Furthermore, such entities shall use all means at their command to ensure the effective enforcement of this bill.
CCS SB 222 – TRANSPORTATION
This bill changes transportation regulations.
FEDERAL MANDATE PROVISIONS The bill makes changes to Missouri law to comply with the Fixing America’s Surface Transportation Act of 2015. In its main provisions, the bill: (7) Updates language to reflect the State Highways and Transportation Commission.
CCS HCS SB 225 – TRANSPORTATION
FEDERALLY MANDATED TRANSPORTATION PROVISIONS
This bill also contains provisions that are federally mandated and make changes to Missouri law to comply with the Fixing America’s Surface Transportation Act of 2015. These provisions: (1) (7) Update language to reflect the State Highways and Transportation Commission.
SCS SB 240 — ELECTRICAL CONTRACTORS LICENSE
This bill creates a statewide license for electrical contractors, which shall be issued by the Division of Professional Registration, within the Department of Insurance, Financial Institutions and Professional Registration. The bill requires an applicant for statewide licensure to be at least 21 years of age, provide proof of liability insurance in the amount of $500,000, pass a standardized and nationally accredited electrical assessment examination, and complete practical hours as specified in the bill. This bill allows a political subdivision to continue establishing their own local electrical contractor’s license, but must recognize a statewide license in lieu of such local license. If a political subdivision fails to recognize a statewide license, then the licensee may file a complaint with the division. If, after investigation, the political subdivision still refuses to recognize the statewide license then the division shall notify the Director of the Department of Revenue who shall withhold local sales tax dollars until the political subdivision is in compliance with the law. Any person who is operating as an electrical contractor in a political subdivision that does not require the contractor to hold a local license is not required to possess a statewide license to continue to operate in that political subdivision. However, each corporation, firm, institution, organization, company, or representative thereof who engages in electrical contracting must have a least one statewide licensed electrical contractor employed at a supervisory level. Beginning in 2020, this bill requires a statewide license to be renewed once every three years. Any officer or agent of a corporation, partnership, or association who violates these provisions is guilty of a class B misdemeanor.
CCS HCS SB 501 — HEALTH CARE
This bill modifies several provisions relating to health care.
This bill provides that the Division of Professional Registration, within the Department of Insurance, Financial Institutions and Professional Registration, shall allow a licensee to submit payment for fees in the form of personal check, money order, cashier’s check, credit card, or electronic check. An applicant or licensee may apply for licensure or renewal in writing or electronically. A licensee may make requests for an extension of time to complete continuing education requirement, notify the board or commission of changes in name, business name, home address, work address, or provide any other items required as part of licensure in writing or electronically (Section 324.003).
Bills of Interest which DID NOT Pass this Session
HB 63 – Berry – Authorizes a tax credit for student loan payments resulting from STEM degrees.
HB 155 – Corlew, Kevin(R) – Establishes the “Interstate 70 Public-Private Partnership Act”.
HB 248 – Fitzwater & Cunningham – Establishes a statewide STEM career awareness program.
HB 479 – Frederick – Prohibits covenants not to compete.
HB 480 – Ross – Establishes guidelines for the regulation of occupations and professions not regulated by the Division of Professional Registration.
HB 542 – Korman & Schatz – Modifies current law to ensure compliance with the Fixing America’s Surface Transportation Act of 2015.
HB 629 – Miller – Changes the laws regarding port authorities procuring professional services.
HB 661 – Bondon & Emery – Requires that the comprehensive state energy plan be reviewed by the division of energy by Jan. 1, 2019, and biennially thereafter, and updated if necessary.
HB 834 – Korman – Creates the Freight Corridor Fund, which shall be used to expand the traffic capacity of certain highways.
HB 968 – Eggleston – Increases the membership of the Highways and Transportation Commission to eight commissioners.
HB 1082 – Remole – Changes the laws regarding design-build contracts for wastewater projects
SB 190 – Emery – Modifies provisions relating to ratemaking for public utilities.
SB 214 – Emery – Modifies provisions relating to ratemaking for public utilities.
SB 215 – Emery – Allows the Missouri Public Service Commission to utilize rate adjustment mechanisms otherwise not specifically authorized by statute to promote modernization and replacement of electrical corporation infrastructure.
SB 242 – Emery – Establishes the Rate Case Modernization Act.
SB 368 – Rowden – Prohibits financial information submitted to the Department of Natural Resources from being subject to public disclosure.
SB 457 – Eigel – Removes certain roads from the responsibility of the state highways and transportation commission and directs certain sales and use tax funds into the state road fund.