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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…)



On July 8, 2014, we passed the final deadline of the 2014 Legislative Session, the Veto Deadline.  The Veto Deadline is the date by which the Governor must either sign or veto a bill.  Any bill that is not vetoed becomes law “without the governor’s signature.”  This year, the Governor did not veto any of the employment-related bills.

Some of the bills that have became law include those addressing the following areas:

  • Minimum Wage (Act 82) – increases the states minimum wage
  • Private Guards (Act 94) – relaxes CE requirements for private guards
  • TDI (Act 160) – adds “organ donation” as an eligible disability to Hawaii’s TDI law
  • Organ, Bone Marrow or Stem Cell Donation (Act 161) - creates new leave law
  • Direct Deposit or Pay Cards (Act 208) – updates Hawaii payment of wages law
  • WC Drugs (Act 231) – sets price for repackaged, relabeled or combined WC drugs
  • Hawaii Health Connector (Act 233) – changes the operations of the Health Connector

A full list of bills that may be of interest to employers can be viewed on the HEC Legislative Digest, which can be accessed on the Legislative Updates section of the HEC website.  The Legislative Digest is currently available to the public.  In addition, HEC members can also access a Highlights article that discusses several of these new laws in more detail.


Just as I was about to step into a lunch meeting yesterday, I got call from Gina Mangieri saying that her story on the gender identity lawsuit garnered so much interest (and questions) from viewers, she wanted to immediately do a follow-up story on some related issues.  For this second story, she wanted to talk about access for transgender individuals to areas open to the public, including restaurants at private businesses, as well as locker rooms for gyms such as 24-Hour Fitness.  Therefore, I went to the KHON2 studios to meet with her to answer a few questions about Hawaii’s public accommodations law.


During this interview, I explained that Hawaii’s public accommodations law prohibited businesses from discriminating against individuals on the basis of their gender identity.  In other words, a private business (that is open to the public) cannot refuse service to an individual on the basis that the individual is a transgender.   Specifically, Hawaii’s public accommodations law prohibits businesses from denying an individual “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.”  I also noted, however, that unlike the law on public accommodations for individuals with disabilities, the law is not entirely clearly on what types of accommodations must be provided to transgender individuals, if any.

You can view the news clip on KHON2′s website here:  Anti-Discrimination Law Doesn’t Specify Access for Transgenders.

On a side note, before we started our interview, I saw Joe Moore and Pat Sajak walking together through the studio.  Apparently, they are doing a play together at the Hawaii Theatre later this month.


Yesterday morning, I was interviewed by Gina Mangieri from KHON2 news about a pending lawsuit and charge with the Equal Employment Opportunity Commission by a state employee from the Public Safety Department that alleged she was discriminated against because of her gender identity.  The employee is a transgender individual who identifies herself as a female.  Her lawsuit alleged she was denied access to the women’s restroom, and instead, was assigned the use of a “gender-neutral” restroom at her workplace.

During the interview, I explained that while Hawaii does have a relatively new law that prohibits employment discrimination based on an individual’s gender identity or expression, the law is not entirely clear on what types of workplace accommodations (if any) must be provided for transgender employees.  For example, unlike Hawaii discrimination law on disability and pregnancy, there are no Administrative Rules that address accommodations for transgender employees.

I also clarified, however, that there is a growing national trend of court decisions ruling that employers should allow employees to use a restroom based on the employee’s perceived gender.  Therefore, employers who want to take the safe approach to this issue should follow the national trend.  At the same time, none of those court decisions are from Hawaii – therefore, while they may be instructive and provide some guidance on how to handle these types of situations, they are definitely not binding on any Hawaii employers.

The story was featured on the 10 o’clock news last night.  You can view a news clip of the story on the KHON2 website here:  Transgender Employee Sues State for Discrimination.

This was my first time meeting Gina, and she seemed like a really intelligent and personable reporter.  Here’s a photo of us standing outside HEC’s offices.