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2009 Hawaii Legislative Wrap-Up

The 2009 legislative session resulted in some bad bills for Hawaii employers. Three bills of particular significance are:

Card Check Certification – This bill amends the Hawaii Labor Relations Act to allow unions to become the exclusive bargaining representative of agricultural employees without going through a secret ballot election. Rather, if the union obtains signed authorization cards from a majority of the employees, the employer will be required to recognize the union as the exclusive bargaining representative of the employees.

This bill applies only to employees in the agricultural field and to employers with annual gross revenues of $5 million or more. All other employers are still covered by the National Labor Relations Act, which currently still requires a secret ballot election to certify a union. However, employers should be aware that the federal Employee Free Choice Act (“EFCA”) which is similar to the Hawaii card check bill is still pending at the Congressional level. For more information on the EFCA, please refer to this post.

Credit History Discrimination - This bill makes it unlawful for an employer to discriminate against an employee or job applicant because of a “credit history or credit report,” unless the credit history or credit report relates to a bona fide occupational qualification (“BFOQ.”) In addition (and similar to Hawaii’s law on arrest and conviction record discrimination), an employer would be prohibited from making any inquiry into an individual’s credit history or obtaining a credit report until after a conditional offer of employment has first been made, and the conditional offer of employment may be withdrawn only if information in the credit history or credit report relates to a BFOQ.

Disputed Workers Compensation Claims - This bill would require employers to continue to provide individuals on workers’ compensation leave with “essential” medical services even if compensability is denied, or a dispute arises as to whether medical services are reasonable and necessary, until the Hawaii State Director of the DLIR conducts a hearing and determines that medical services should end.

Governor Linda Lingle has until June 30, 2009 to veto these bills, or they will become law.

One bit of good news (or relief):

There is one silver lining from the 2009 Hawaii legislative session: the “successorship bill” which would have required successor employers to hire 100% of the employees of a company they were assuming, was not passed. It appeared to have support by the Legislators throughout the 2009 legislative session, but fortunately, it lost steam and died during conference.