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Quick and Easy Guide to Labor & Employment Law: Mississippi

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in Mississippi.

At-Will Employment

Mississippi is an employment at-will state. This means that either party may terminate the employment relationship at any time, with or without cause, and with or without notice. Mississippi courts have explained, however, that employers may not fire employees for one of the public policy reasons detailed in McArn or Bobbitt, nor may they fire employees for reasons "independently declared legally impermissible" by state or federal law, specifically including express legislative action.

Under the McArn exception, an employer shall not discharge an employee solely for refusing to participate in, or refusing to remain silent about, illegal activities. McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993). Notably, the reporting of illegal acts (or the whistleblower) exception applies only if the acts complained of by the employee warrant the imposition of criminal penalties, as opposed to mere civil penalties. Frank v. City of Flowood, No. 2015-CA-00620-COA, 2016 WL 1564267, at *5 (Miss. Ct. App. Apr. 19, 2016). Recently, the Mississippi Supreme Court recognized an "express legislative action" by the Mississippi Legislature because of the right to bear arms, Miss. Code Ann. § 97-37-1(2), and Miss. Code Ann. § 45-9-55. Specifically, the court found that the Legislature has declared it "legally impermissible" for an employer to terminate an employee for having a firearm inside his locked vehicle on company property. Swindol v. Aurora Flight Scis. Corp., No. 2015-FC-01317-SCT, 2016 WL 1165448, at *7 (Miss. Mar. 24, 2016) An employer may only prohibit an employee from having a firearm in his or her personal vehicle in a company parking area if the area is restricted by the "use of a gate, security station or other means of restricting or limiting general public access onto the property." Miss. Code Ann. §45-9-55(2). Otherwise, an employee may file a wrongful discharge claim against an employer who terminated him or her for storing a firearm in his or her locked vehicle consistent with Miss. Code Ann. § 45-9-55.

Finally, absent a disclaimer to the contrary, the terms and conditions of an employer's Employment Manual or Handbook may impose contractual obligations upon the employer and otherwise narrow and restrict the employment at-will doctrine. Bobbitt v. The Orchard, Ltd., 603 So. 2d 356 (Miss. 1992).

Right-to-Work Laws

Mississippi is a right-to-work state. This means that an employer cannot deny or otherwise condition an employee's right to work upon that employee's membership or non-membership in any labor union or labor organization. Additionally, an employer cannot deny nor otherwise interfere with an employee's right to organize, or to bargain collectively, by and through a labor organization. Miss. Code Ann. § 71-1-47; Miss. Const. Art. 7, Section 198-A. Mississippi enacted three bills, which took effect July 1, 2014, that are worth noting.

First, the Mississippi Employment Fairness Act provides that the State "shall retain the exclusive authority to require an employer or multi-employer association to accept or otherwise agree to any provisions of a labor peace agreement or any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws," including limitations on the association's rights to engage in collective bargaining with a labor organization, lock out employees or operate during a work stoppage. S.B. No. 2797. Second, the Prohibition Against Employer Intimidation Act prohibits a person, organization, corporation, union, agency or other entity from damaging, harming, injuring or threatening to injure or coerce a business, "or any employee or representative of the business, with the intent to unlawfully intimidate the business or its employees from exercising their federally or state protected rights, in an effort to obtain 'something of value' for a public or private organization, corporation, union, agency or other entity." "Something of value" includes a neutrality agreement, card check agreement, collective bargaining recognition or other objective of an organized initiative. S.B. No. 2473. The third relevant act makes it unlawful for any union, labor union, or agency singly or in concert with others, to engage in mass picketing or mass demonstrations such that it obstructs or unreasonably interferes with free ingress or egress to and from any place of business or has the effect of obstructing or unreasonably interfering with the free use of business entryways, streets, sidewalks or rights-of-ways, etc. S.B. No. 2653.

Immigration Verification

Mississippi requires all employers to use E-Verify to ensure employment eligibility for all newly hired employees pursuant to the Mississippi Employment Protection Act. Miss. Code Ann.§ 71-11-3. An employer's failure to comply may result in termination of all state contracts and ineligibility for public contracts for a period of up to three years, loss of business licenses and permits, or a combination of both penalties.

NOTE: Mississippi was the first state to participate in the U.S. Citizen and Immigration Services' "Records and Information from DMVs for E-Verify (RIDE)" program. Using RIDE, the E-Verify system can validate the authenticity of Mississippi driver's licenses used by employees as Form I-9 identity documents.

Drug Testing

The State of Mississippi enforces laws concerning workplace drug tests, which may be found at Miss. Code. Ann. § 71-3- 201, et seq., "Drug-Free Workplace Workers' Compensation Premium Reduction Act," and Miss. Code. Ann. § 71-7-1, et seq., "Drug and Alcohol Testing of Employees." If the employer implements a drug-free workplace program, it "shall qualify" for certification for a five percent premium discount if offered under the employer's workers' compensation insurance policy. Miss. Code Ann. § 71-3-207(1). The election of a public or private employer to conduct drug and alcohol testing is voluntary; however, if the employer elects to have such a policy, it must follow the terms of the chapter without exception. Miss. Code Ann. § 71-7-3. In Mississippi, employers may test for alcohol and other substances not specifically identified under the federal Drug Free Workplace Act of 1988. Further, Mississippi requires employers to use a Medical Review Officer as the sole individual authorized to review any test results. Employers should cautiously approach drug and alcohol testing as it can present substantial hurdles.

Jury Duty Leave

Mississippi provides protection to those summoned for jury duty. Specifically, it is "unlawful for an employer to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee notifies his or her employer that he or she has been summoned to serve as a juror within a reasonable period of time after receipt of a summons." Miss. Code Ann. § 13-5-35(1). Additionally, it is "unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process or time spent actually serving on a jury." Id. § 13-5-35(2).

This section shall not be construed to require an employer to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such benefits under company policies. Miss. Code Ann. § 13-5-35(2).

Voting Leave

The State of Mississippi does not specifically require an employer to offer to its employees time off to vote. If an employee's regular working hours do not otherwise allow the employee time to vote, an employer may allow the employee to take vacation or leave time so the employee has "the necessary time to cast his or her vote."  Miss. Code Ann. § 23-15-871(3).The employer may not, however, direct or coerce, directly or indirectly, an employee to vote or not to vote. Miss. Code Ann. § 23-15-871(1).

Parental Leave

The State of Mississippi does not require an employer to offer to its employees parental leave.

Other Leave

The State of Mississippi does not require employers to offer to employees paid vacation or sick leave.

Smoking Laws

A public or private employer shall not condition employment on an employee or applicant for employment abstaining from smoking or using other tobacco products in non-work areas during non-work hours. Miss. Code Ann. § 71-7-33. Certain counties have banned smoking in bars and restaurants or enclosed workspaces, but the State of Mississippi has not enacted any ban on smoking applicable to private workplaces.

Break Time to Express Milk

An employer shall not discriminate against a breast-feeding mother who uses any meal period or other break period provided by the employer to express milk. Miss. Code Ann. § 71-1-55. Licensed childcare facilities must provide breast-feeding mothers, including employees, a sanitary place with an electrical outlet, comfortable chair and nearby access to running water that is not a toilet stall to breast-feed their children or express milk. A refrigerator will be available for storage of expressed breast milk. Miss. Code Ann. § 43-20-31. Employers should also refer to the similar requirements under the Fair Labor Standards Act.

Meal Breaks

The State of Mississippi has no law regulating meal breaks or rest periods.

Minimum Wage

The State of Mississippi has no law regulating minimum wage. However, those employers subject to the federal Fair Labor Standards Act are subject to the $7.25 minimum wage under that Act. Employers should always consult the federal child labor laws before employing a minor under 18 years of age.

Final Payments

The State of Mississippi has no law regulating final payments to employees. However, such payments should be made to employees no later than their normal payday, and no deduction should take them below minimum wage. However, the Mississippi Uniform Disposition of Unclaimed Property Act, Miss. Code Ann. § 89-12-1, et seq., requires employers to turn over to the State any unclaimed wages.

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by the Mississippi Department of Employment Security, and additional information regarding the benefits may be accessed at mdes.ms.gov/.

Workers' Compensation

The Mississippi Workers' Compensation Act, Miss. Code Ann. § 71-3-1, et seq., applies to every employer in Mississippi with five or more employees. Employees who suffer injuries and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits under the Act. The Act is administered by the Mississippi Workers' Compensation Commission, and additional information regarding the Act may be accessed at www.mwcc.state.ms.us/.

Under the Act, a workplace injury must be immediately reported to the employer; failing to timely report an injury may result in a denial of benefits. Finally, unlike some states, Mississippi does not recognize a claim for retaliation under the Act.

Gun Laws

A public or private employer may not establish, maintain or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage or other designated parking area. Miss. Code Ann. § 45-9-55. However, a private employer may prohibit an employee from transporting or storing a firearm in a vehicle in parking areas provided by the employer that have restricted or limited access through the use of a gate, security station or other means of restricting or limiting general public access onto the property. Id. at § 45-9-55(2). Further, the limitations in this Section do not apply to vehicles that are owned or leased by the employer and used by the employee in the course of his business. Id. § 45-9-55(3).

There is no current law in Mississippi that bans the employer from prohibiting firearms in the workplace. The employer should have proper signage and policies in place regarding any such prohibition within the workplace. It is also notable that effective July 1, 2013, Mississippi expanded Mississippi Code Section 97-37-1 to allow persons to openly carry firearms in public without a concealed carry permit.

Finally, the Mississippi Supreme Court has recently explained that the state legislature has "independently declared" via Section 45-9-55 that terminating an employee for having a firearm inside his or her locked vehicle is "legally impermissible." Swindol v. Aurora Flight Scis. Corp., No. 2015-FC-01317-SCT, 2016 WL 1165448, at *7 (Miss. Mar. 24, 2016). Further, § 45-9-55(5) does not bar an action for wrongful discharge against an employer who terminates an employee for having a firearm inside his locked vehicle. Id. Notably, the employer may still prohibit the storing of a firearm in a secured parking area, and the employee must store the firearm consistent with § 45-9-55 and not in an area that is prohibited by law. See Id.

Additional Laws and Regulations

Military Protection

The State of Mississippi prohibits discrimination because of an individual's military service. Miss. Code Ann. § 33-1-15. And, following military leave, military personnel, who are still qualified to perform the duties of their previous position, are entitled to be restored to his or her previous or similar position in the same status, pay and seniority. Miss. Code Ann. § 33-1-19.

Minimum Age

The minimum age of employment in Mississippi is 14. Miss. Code Ann. § 71-1-19. However, fruit and vegetable canneries are exempt from Mississippi's minimum age requirement. Miss. Code Ann. § 71-1-31.

Protecting Freedom of Conscience from Government Discrimination Act

The Act, codified at Miss. Code Ann. §§ 11-62-1 through 11-62-19, allows a religious organization to decide "whether or not to hire, terminate or discipline an individual whose conduct or religious beliefs are inconsistent with those of the religious organization…." Miss. Code Ann. § 11-62-5(1)(b) . The statute also prohibits state government from acting against an employer who establishes "sex-specific standards or policies concerning employee or student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing rooms, locker rooms or other intimate facilities or settings" based on a sincerely held religious belief or moral conviction. Id. at (6). Notwithstanding, employers governed by Title VII of the Civil Rights Act of 1964 (those with 15 or more employees) should know that the EEOC has interpreted and enforced Title VII to prohibit discrimination based on religion, gender identity or sexual orientation. Moreover, reliance on contrary state law is not a defense to violating Title VII.

WARN Laws

Mississippi does not have a state act governing mass layoffs. However, the federal Worker Adjustment and Retraining Notification Act (WARN Act) requires employers to provide 60 days' notice before covered plant closings and mass layoffs. The notice must be provided to the affected employee or his or her representative (e.g., a union), appropriate local officials and the state dislocated worker unit. An employer who engages in a mass layoff and does not give its employees 60 days' notice of the impending job terminations is liable for up to 60 days' pay and benefits to those employees who lost their jobs.

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Guide last updated July 2021.

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