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Following up on his notice of intent to veto HB 1739, this year’s social media privacy bill, Governor David Ige issued his veto of the measure on July 11, 2016.

veto stamp

In his veto message, the Governor noted that the bill contained no enforcement authority or due process.  In addition, the Governor also stated that the Department of Labor and Industrial Relations (“DLIR”) does not currently have the staff, resources, or expertise to administer the measure, including such actions as intake of complaints, determination of violations, education of rights, determination and collection of fees, and administrative review.  Furthermore, the DLIR is also struggling with case backlogs in other areas.  Finally, the Governor noted that the Legislature did not provide any funding for administration of this bill.  Therefore, he vetoed the bill.

You can review a copy of the governor’s veto message here:  GM 1322.

 

In case you haven’t heard, a federal court in the Northern District of Texas issued a nationwide injunction enjoining the U.S. Department of Labor from enforcing their new persuader rules, which were supposed to be applied to agreements, arrangement and payments made on or after July 1, 2016.  In a nutshell, the court concluded that the new rules were defective because they basically eliminated what is known as the “advice exemption” under the Labor-Management Reporting and Disclosure Act (“LMRDA”).  The court also noted that the rules exceeded the DOL’s authority to revise statutory law, were arbitrary and capricious, constituted an abuse of discretion, were inconsistent with the attorney-client privilege, violated free speech and the First Amendment right to association, and violated the Regulatory Flexibility Act.

injunction

This ruling is major victory for employers, but it is definitely not the end of the story for the new persuader rules.  The DOL will surely be filing an appeal of the court’s order.  You can review a copy of the court’s order here:  Texas Injunction.

In a lawsuit in Minnesota, the court denied a similar motion for preliminary injunction, but also noted that the parties seeking to invalidate the rule “are likely to succeed in their claim that portions of the new rule conflict with the LMRDA.”  Therefore, although the court declined to issue an injunction in the case, it did hint that the rule could eventually be overturned at a later court proceeding.  You can review a copy of the Minnesota court’s order here:  Minnesota Order.

A third lawsuit, in Arkansas, is still pending.

 

On Monday, June 27, 2016, Governor Ige announced his intent to veto HB 1739 CD1, a bill that would make it unlawful for an employer to request, require, or coerce an employee or job applicant to disclose their social media login credentials or access the  individual’s social media account in front of the employer, subject to certain exceptions.

Governor Ige

This issue has been a hot topic of discussion at the legislature for several years.

Nevertheless, throughout the multitude of hearings and discussions over the bill, I have yet to hear anybody provide a single concrete real life example of where an employer in Hawaii has ever asked a job applicant or employee to disclose their social media login credentials to an employer.  There have been claims that countless employers are demanding that employees disclose their social media passwords to their employers, but when pressed for details, nobody is ever able to provide any – not the advocates, and certainly not the lawmakers who wrote/support the bill.

In my job, I work with Hawaii companies on a daily basis on HR matters.  For the past several years, I have also spent a considerable amount of time counseling employers on issues related to social media in the workplace.  In fact, I have presented several seminars on the topic dating all the way back to 2008.  I can say that with 100% certainty, in all my time working with employers on employment related matters, I have never had a single employer ask me if they can ask their employees to disclose their social media passwords.

To me, this is a bill that seeks to solve a problem that doesn’t exist.  Personally, I commend Governor Ige for his stance on the matter.

 

In what appears to be a definitive answer to the question of whether employers must allow a transgender employee to use a restroom that is reserved for the sex with which the employee identifies, the EEOC has issued a fact sheet addressing bathroom access rights for transgender employees.

In its fact sheet, the EEOC cited to federal cases which found that denying an individual equal access to a common restroom corresponding to the individual’s gender identity is sex discrimination.  Similarly, an employer also cannot require a transgender employee to use a single-use restroom (or presumably, a unisex restroom, if a single sex restroom is available).  The EEOC has defined the term “transgender” as people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate).

Of course, this is just the EEOC’s position on the matter, and there is no guarantee federal courts will adopt the same conclusion.  Nevertheless, the EEOC’s interpretation of the law is usually given deference by the courts, so it’s a safe bet that courts will also require employers to allow transgender employees to use the restroom that corresponds to the employee’s gender identity.  In Hawaii, there is no law that directly addresses this question.  However, based on a lawsuit that was filed against the state a couple of years ago, Hawaii employers are advised to allow transgender employees to use the bathroom of their corresponding gender identity.

The EEOC’s fact sheet is in line with a fact sheet issued by the DOL’s Occupational Safety and Health Administration (“OSHA”) in 2015.

 

On Tuesday, May 17, 2016, news broke that the U.S. Department of Labor (“DOL”) will be publicly issuing their final rules regarding overtime exemptions under the Fair Labor Standards Act on Wednesday, May 18, 2016.  The final rule will raise the salary threshold exemption from $23,660 to $47,476, which is more than double the current amount.  While the salary threshold is not quite the $50,440 that was initially proposed by the DOL, it is still certainly a very high number that will negatively impact many small businesses, non-profit organizations, and other companies that simply cannot afford to raise salaries to $47k for all of their exempt employees.

The final rule will also trigger automatic increases to the salary threshold every three years, beginning on January 1, 2020.  To put it lightly, this escalator clause could prove to be a real back breaker for many companies.  Under the DOL’s estimation, this would increase the salary threshold to $51,168 in 2020.  It is also not clear whether the DOL has fully thought about the implications of this escalator clause, but that is a different discussion for another day (see below).

In addition, the final rule also raises the salary threshold that is used for the “highly compensated employees” exemption from $100,000 to $134,004.   With the escalator clause, this number is estimated by the DOL to be $147,524 in 2020.

Finally, the new rule also provides that non-discretionary bonuses and incentive payments (including commissions) can be used to satisfy up to 10% of the new standard salary level, as long as they are paid on a quarterly basis (or sooner).

The new rules will take effect on December 1, 2016.  This gives employers just under 200 days to start preparing for these major rule changes.

Certainly, this is BIG NEWS!  And bad news, too.

In order to assist employers with understanding and preparing for the DOL’s final overtime rule, the Hawaii Employers Council (“HEC”) will be conducting a seminar/webinar next Wednesday from 8:30 to 10:30 am.  This program will contain three main components:  (1) a discussion of the current and new rule; (2) actions plans employers can implement in response to the new rule; and (3) how to communicate with employees about changes that are (or will be) implemented by the employer.  I will be presenting the first part of the program.  

Here are some links for further information:

Oh, one last thing – I should also note that the final rules do not make any changes to the duties tests for the Executive, Administrative and Professional exemptions.  Employers can probably view that as a good thing, although I do not think such changes were likely because the DOL did not include them in its proposed rule.  Therefore, implementing such changes would have probably been in violation of the Administrative Procedures Act anyway.

 

For the first time ever, the Equal Employment Opportunity Commission (“EEOC”) has issued a memorandum on “how Respondents can draft effective position statements.”

guidance

Oftentimes, employers who receive a charge of discrimination from the EEOC will hire an attorney to draft a position statement in response to the charge.  The attorney will normally work with the employer to gather a set of facts to be used in response to the allegations contained in the charge of discrimination, and then prepare a position statement that summarizes those facts (oftentimes refuting the allegations contained in the charge) and discusses those facts in light of the law.  The position statement should be carefully drafted to ensure that all allegations raised in a charge of discrimination are addressed, and that the employer provides a fact-based response instead of one that simply raises conclusive statements such as “we didn’t discriminate.”

Regardless of whether you hire an attorney or prepare the position statement yourself, it is strongly advised to review the EEOC’s memorandum on what constitutes an effective position statement.  The EEOC’s memorandum addresses the following issues:

  • The importance of fact-based position statements
  • Examples of supporting documentary evidence
  • Segregating confidential information
  • Providing a response by the due date
  • Requesting an extension
  • Uploading the Position Statement into the EEOC’s portal

The EEOC’s memorandum can be viewed here:  EEOC on Effective Position Statements

 

The 2016 legislative session has come to a quiet ending.  As part of my duties at the Hawaii Employers Council (“HEC”), I track and report on bills that may be of particular interest to companies doing business in the State of Hawaii.  I also prepare a digest of all the bills I’m tracking and a separate article that highlights a few of the more significant employment-related bills.

For this year’s session, some of the employment-related legislation that Hawaii employers should know about address the following topics:

  • Social Media Privacy
  • Workers’ Compensation Treatment Plans
  • Penalties for TDI and Workers’ Compensation Violations
  • Additional Unemployment Insurance Benefits

The HEC legislative digest provides a brief overview of these bills, as well as all the other bills I have been tracking this legislative session.  The digest can be viewed here:  Legislative Digest After Sine Die.  The highlights article contains a more detailed discussion of employment-related bills that I found to be of particular significance.  The article is available to HEC members only, and can be accessed here:  Highlights of Bills After Sine Die.

All the bills that have been passed by the legislature have been sent to the Governor for his approval or veto.  The deadline for the Governor to give notice of any vetoes is June 27, 2016.  The deadline to make the actual veto is July 12, 2016.