Blog Archives

This morning, the Senate Committee on Judiciary and Labor approved the appointment of Leonard Hoshijo to serve as the Deputy Director of the Hawaii State Department of Labor and Industrial Relations (“DLIR”).  The next step in the process is for the full Senate to vote on whether to confirm Hoshijo’s appointment.


According to a press release issued by Governor Ige, Hoshijo is currently the Education and Policy Director for the Hawaii Regional Council of Carpenters.  He also previously worked for many years and in many positions for the International Longshore and Warehouse Union (“ILWU”).  Several organizations and individuals, including the ILWU, submitted testimony in support of Hoshijo’s appointment.  The testimony can be viewed on the Legislature’s website here:  Hoshijo Testimony.

Interestingly, during the hearing, Senator Keith-Agaran asked Hoshijo whether his extensive background with labor unions would allow him to bring “balance” to the DLIR.  Hoshijo responded he would bring “the perspective of the working people.”  Senator Keith-Agaran then tried to clarify his question by asking whether Hoshijo would be bringing the perspective of unions to his position at the DLIR, and Hoshijo responded that the programs administered by the DLIR serve non-union employees as well.  It appeared from the line of questioning that Senator Keith-Agaran was really asking whether Hoshijo can bring balance between unions and management, but the Senator and appointee were not on the same wavelength.

In addition, Senator Keith-Agaran also asked the representative from Governor Ige’s office about the status of the search for the DLIR Director, but the representative did not have any news to share.

At the conclusion of the hearing, all four senators who were present (Senators Keith-Agaran, Shimabukuro, Espero and Slom) voted in favor of Hosjijo’s appointment.


Last week, I conducted a webinar at HEC to share my thoughts on what type of legislation employers can expect for the 2015 legislative session.  The webinar lasted about 90 minutes and we discussed over 20 areas of the law that could be addressed this year.  Several of the potential bills we discussed included those covering the following issues and areas of law:

  • Hawaii Family Leave Law
  • Sick Leave
  • Meal Breaks
  • Workers’ Compensation and IMEs
  • Workers’ Compensation and Voc Rehab
  • E-Cigarettes
  • Abusive Workplaces
  • Discrimination
  • Successor Employers
  • Insurance Coverage for Autism Spectrum Disorders
  • Health Care Connector
  • State Innovation Waiver Task Force
  • Workplace Security
  • Temporary Restraining Orders
  • Defenses to Workplace Harassment Claims

In addition, we also briefly discussed our new Governor David Ige and new Director of Labor and Industrial Relations Elizabeth Kim, and how their involvement in the legislative process could impact employment-related bills this year.

For those of you out there who will be tracking the same legislation:  see you at the Capitol next week!



Hi everybody, the minimum wage just went up!  Yeah, yeah, I get it…old news…you all already know about minimum wage increase. Well, I realize that it’s been discussed ad nauseum, but just in case there are a handful of people out there who forgot to make the requisite changes with their payroll, here’s a quick reminder that the minimum wage has gone up (and will continue to rise) according to the following schedule:

  • January 1, 2015 – $7.75
  • January 1, 2016 – $8.50
  • January 1, 2017 – $9.25
  • January 1, 2018 – $10.10

In addition to the higher minimum wage, there are a couple other things you should know.  First, the tip credit also increased to $0.50 an hour on January 1, 2015 and will tick up to $0.75 an hour on January 1, 2016, provided that the employee earns at least $7.00 above the minimum wage in tipped income and wages.  What does this mean?  Basically, in 2015, employees must make at least 7.50 an hour in tips to qualify for the $0.50 tip credit, which means that employers just lost the $0.25 tip credit they used to have for employees who earn less than $7.50 an hour in tips.  In other words, for employees in low tipped categories who might make just $5-6 an hour in tips, there is no longer a tip credit.

Second, in July 2014, the state DLIR issued a new Wage and Hour that discussed the new minimum wage amounts.  You can get a copy of the new poster here:  July 2014 Wage and Hour Poster.

You can also view the state’s tip credit and minimum wage guide here:  Minimum Wage and Tip Credits.


Chalk this one up for the unions.  In a long-awaited decision that involved the NLRB’s own General Counsel asking the Board to overturn existing law, the NLRB recently ruled that employees have a presumptive right under Section 7 of the National Labor Relations Act to use their work email for purposes of (1) union organizing or (2) discussing terms and conditions of their employment – such as wages, benefits and hours – with others, as long as it’s done during non-work time.

What does this mean for employers?  Well, for starters, if your current electronic communications email policy prohibits all non-business use of company email, you should look into look revising the policy to ensure that it is compliant with this new law.  Otherwise, I have a few quick thoughts about the decision:

  • The decision was decided 3-2, with the three democratic Board members making up the majority and the two Republican Board members writing a dissenting opinion.  With this decision, as well as several others in the past several years, it appears the NLRB has become an extension of Congress, where decisions are made along party lines and viewpoints, as opposed to the merits of a case or even the law.
  • That being said, the Board noted that its decision was “carefully limited,” which means they’re trying not to take things too far, too fast.  For example, this decision applies only to employees who have already been given an email account.  At the same time, employers are not required to give email accounts to all employees, and non-employees (such as union organizers) do not have a right to such access.
  • Additionally, employees’ right to use work email for union organizing applies only during non-work time.  Employers can still prohibit non-business use (including Section 7 activity) during working time (i.e. time when the employee should be working).
  • This Board decision creates only a presumption that employees have a right to use work email for Section 7 activity.  Employers can rebut this presumption by showing “special circumstances” that would require the employer to implement rules or controls in order to maintain production  and discipline.  (Although the Board noted that it would be a “rare situation” where a total ban would be warranted.)
  • Employers can still prohibit non-business use of email.  (The only new limitation is employees cannot be prevented from using work email for Section 7 activity during non-work time.)
  • Employers can still monitor their employees’ email use.  In fact, employers should make sure employees know their email can and/or will be monitored.  By doing so, it could discourage employees from using work email for union organizing purposes.  However, employers should make sure they do not change their monitoring practices in a discriminatory manner – such as increasing monitoring during a union campaign or only for a select of employees who might be possible union organizers.  Finally it remains to be seen whether this decision actually results in increased use of company email for union organizing purposes.  In most cases, employees who support a union or lead a union organizing drive try to be discreet and remain under the radar, in order to avoid alerting the company of a union campaign.  By overtly using company email for such a purpose, a union campaign would be exposed.  Additionally, some employees are fearful of being a known union supporter, out of fear of retaliation by either their employer or co-workers.

And lastly, as noted above, employers should revise their electronic communications and email policies to be compliant with Purple Communications.  If you are unsure of what types of revisions should be made, contact a knowledgeable HR consultant or experienced employment attorney.

You can read a copy of the Board’s decision here:  Purple Communications.


Good news for business owners, executives, HR professionals, or managers who are currently finalizing your 2015 budget:  the State of Hawaii Department of Labor and Industrial Relations (“DLIR”) just announced that the Unemployment Contribution Rate for 2015 will drop from Schedule E to Schedule D, which equates to approximately a 22% decrease (or $100 less) per employee on average (although your exact savings will vary depending on your company’s reserve ratio).

This stepdown in the UI contribution schedule comes as a result of the current unemployment rate of just 4.1%.  With a low unemployment rate, less money is being withdrawn from the fund, thereby allowing the fund to get replenished.  In fact, the unemployment fund currently sits at 0.99 of the adequate reserve level, which means the fund almost had enough money to lower the UI Contribution Rate to Schedule C.  Almost.  Dang!

In any event, this is a huge improvement from just four years ago, when the fund went bankrupt and the State had to borrow $183,000,000 from the federal government to pay unemployment benefits.

So…I hope this serves as good news for you all during this holiday season.


You can read a copy of the DLIR’s press release on the UI tax rate here:  UI Press Release.


Hi Everybody!   I hope you’ve all had a great year so far and have at least some free time to enjoy the Holiday Season!  I can’t believe that it’s Thanksgiving week already.  It seems like the days, weeks, months and years seem to go by so much faster as I get older.  Like the saying goes…


Anyway, I wanted to send out a quick blog post to let you all know about an exciting workshop I will be presenting in the first quarter of 2015.  Due to several requests from HEC members, I’ve decided to put together a half-day program discussing the different types of accommodations employers must provide their employees (applicants and volunteers) in the workplace.  The topics of discussion will include accommodations based on disabilities, religion, pregnancy, status as a victim of domestic or sexual violence, and gender identity and expression, as well as others

The seminar will be presented on the following dates and locations.  All sessions will be held from 9 am to 12 noon.  (Click for link to registration form.)

The program will be informative, interactive and (hopefully) fun!  You can register for the event by visiting the training section of the HEC website at  I hope you can join me and Happy Holidays!



The August 2014 issue of Hawaii Business Magazine contains an article discussing a new law that was passed from the 2014 legislative session which modernizes Hawaii’s payment of wages law by clarifying that employers may pay their employees’ wages by direct deposit or paycards under certain circumstances.   The author of the article, Alex Bitter, and I had a lengthy conversation about the new law, and he ended up quoting me a couple of times for the article.

Under Hawaii’s old law, employers were only permitted to pay wages via “cash” or “check.”  (Technically, the DLIR previously authorized the payment of wages via direct deposit and paycards, but that authorization came from the department’s administrative authority and did not actually amend Hawaii’s law.  Rather, it simply provided the department’s interpretation of Hawaii’s payment of wages law.)

This new law, Act 208, expressly authorizes employers to pay employees via direct deposit or paycards, if certain conditions are met.  For direct deposit, the employer must comply with six different requirements, including obtaining voluntary authorization in writing, using a financial institution that is insured by the FDIC or comparable agency, allowing the employee to cancel the direct deposit at any time, providing a pay statement to the employee, and not requiring the employee to pay any costs or fees for the direct deposit.

For paycards, employers must comply with 12 different requirements, including providing a notice to employees of paycard conditions, accepting responsibility for fees assessed against the employee that are outside the paycard fee schedule, and allowing employees the ability to make at least three free withdrawals on the card (at least one of which permits withdrawal of the full amount of the employee’s net wages).

You can read a copy of the new law here:  Act 208.  You can also read a copy of the Hawaii Business Magazine article here:   New Rules Make Paycards More Costly for Companies.

Finally, here is a picture from the bill signing ceremony where Governor Abercrombie signed Act 208 into law.  (That’s me, just behind and to the right of the Governor…)