Blog Archives

The legislative session is going to start in just a couple of days.  In order to help HEC members begin thinking about what they will likely see from our lawmakers over the next several months, I recently conducted a 90-minute webinar forecasting possible employment-related legislation for the upcoming legislative session.

To set the context for what types of bills we may see get introduced, heard and possibly passed, I first discussed the political context we are currently experiencing, including (1) a new Labor chair for the House of Representatives, (2) political influencers such as Sen. Bernie Sanders, Rep. Tulsi Gabbard, and the new chair of the Hawaii Democratic Party Tim Vandeveer.  I also mentioned the possible trickle-down impact that having President-elect Trump take over the White House may have at the state level.

The possible legislation I then discussed included the following:

  • Salary thresholds for exempt employees
  • Paid sick and save leave
  • Pay transparency and pay equity
  • Minimum wage (and the “Fight for $15″)
  • Hawaii Family Leave Law expansion
  • Social Media privacy
  • Increased regulation of construction industry
  • Employment discrimination (Adams v. CDM Media case)
  • Medical information privacy (PRO v. Queen’s case)
  • Independent Contractors
  • Incentives for hiring disabled individuals
  • Small business preferences for state procurement
  • Price caps on WC medication
  • Increased HIOSH penalties
  • Electronic notices for DLIR hearings
  • Funding for DLIR positions

As the bills start to get introduced and hearings get underway, I’ll be busy tracking legislation on these topics (and likely others).  As a non-election year, it will be interesting to see what kind of legislation has the most movement in 2017.

 

The Fifth Circuit Court of Appeals has granted a request by the Department of Labor (“DOL”) to conduct an expedited appeal of the injunction that was issued last month against their new FLSA overtime rules.  Under the expedited schedule, briefs for the appellants will be due in December 2016 and January 2017, and thereafter the court will schedule oral argument for the appeal on “the first available sitting after the close of briefing.”

Interestingly, even though the court has expedited the appeals process, it will not be able to issue a decision before the Trump administration takes office.  Therefore, it remains to be seen what a DOL that is run by Trump appointee Andrew Puzder – who has been critical of the FLSA rules – will do with regards to the appeal.

 

The Hawaii State Senate has finalized their committee assignments for the 2017 legislative session.  The committees will be chaired as follows:

Ways and Means:  Jill Tokuda
Commerce and Consumer Protection:  Roz Baker
Judiciary and Labor:  Gil Keith-Agaran
Economic Development, Tourism and Technology:  Glenn Wakai
Agriculture and Environment Committee:  Mike Gabbard
Education:  Michelle Kidani
Government Operations:  Donna Kim
Hawaiian Affairs:  Maile Shimabukuro
Higher Education:  Kal Kahele
Housing Committee:  Will Espero
Human Services:  Josh Green
Public Safety, Intergovernmental and Military Affairs:  Clarence Nishihara
Transportation and Energy:  Lorraine Inouye
Water and Land:  Karl Rhoads

 

The Equal Employment Opportunity Commission recently announced that it updated its enforcement guidance for national origin discrimination.  This updated guidance replaces a manual that was issued in 2002.

eeoc-update-300x241

In total, the EEOC issued three documents:

According to the EEOC, the updated guidance set’s forth “the agency’s interpretation of the law and explains how federal anti-discrimination laws and regulations apply to specific workplace situations….The guidance also addresses developments in the courts since 2002, as well as topics such as job segregation, human trafficking and intersectional discrimination.”

 

Earlier this year, I reported that a federal judge in Texas had issued a preliminary nationwide injunction against the Department of Labor’s (“DOL”) new Persuader Rule.  The DOL’s new rule was problematic because it would have essentially eliminated what is known as the “advice” exemption under the Labor-Management Reporting and Disclosure Act (“LMRDA”), which allows attorneys and consultants to assist employers with union matters where there is no direct contact between the attorney/consultant and the company’s employees, without having to report the nature of the consultation.  Under the DOL’s new Persuader Rule, disclosure of such arrangements would have been required.

On November 16, 2016, the same judge converted the preliminary injunction into a permanent nationwide injunction.

At this point, we’ll just have to wait and see how the DOL responds (i.e. appeals).  With the Trump administration taking office in less than two months, it will be interesting to see whether the DOL scales back on some of the initiatives it pushed for during the Obama administration.

 

The Hawaii State House of Representatives recently finalized their committee assignments for the 2017 legislative session.  Here are some of the committee assignments that may be of interest to employers:

Consumer Protection & Commerce (CPC)
Chair:  Angus McKelvey
Vice Chair:  Linda Ichiyama

Economic Development & Business (EDB)
Chair:  Mark Nakashima (former Labor Chair)
Vice Chair:  Jarrett Keohokalole

Finance (FIN)
Chair:  Sylvia Luke
Vice Chair:  Ty Cullen

Health (HLT)
Chair:  Della Au Belatti
Vice Chair:  Bert Kobayashi

Judiciary (JUD)
Chair:  Scott Nishimoto
Vice Chair:  Joy San Buenaventura

Labor & Public Employment
Chair:  Aaron Johanson
Vice Chair:  Daniel Holt

 

It looks like Christmas has come early for employers all around the country.  On November 22, 2016, a federal judge from Texas issued a nationwide preliminary injunction prohibiting the U.S. Department of Labor from enforcing its new rules regarding the executive, administrative, and professional (“EAP”) exemptions under the Fair Labor Standards Act.

Hooray!

hooray

For all those employers who were going to be converted to non-exempt status solely because of the increased salary threshold, those employees can remain exempt.  For those employees who were set to receive a pay increase due to the new FLSA rules, employers will need to make the tough decision on whether they will still increase employees’ salaries.  Some factors to consider are whether the pay increases have already been implemented or announced, the potential impact on morale, and the company’s budget.

To view a copy of the court’s decision, please click on the following link:  FLSA Rules Preliminary Injunction.