Blog Archives

One HR question I have been hearing and reading about A LOT lately is whether the annual performance review is dead.  Many large companies – mostly on the U.S. Mainland – have publicly announced that they abandoned annual performance reviews and replacing them with some other feedback mechanism.  Whether this movement will catch on in Hawaii remains to be seen.


Recently, SHRM posted a very interesting article addressing this very topic and asked the question “Is the annual performance review dead?”  In the article, the author noted that we are “in the early stages of a revolution” and “HR leaders are realizing that they need continuous, real-time feedback and solutions.”  The article also cautioned that annual performance reviews can result in negative consequences, such as inciting antagonism, de-moralizing the workforce, creating an uncomfortable dynamic between managers and employees, and just simply taking up a lot of time.

The author also touched on another issue, albeit just slightly:  society is moving much faster nowadays.  One facet the article didn’t address with regards to societal impact on the workforce, however, is the composition of today’s workforce (i.e. Gen-Xers, Millenials, etc.)  Specifically, although the article discussed how more frequent manager-employee checkins, which could occur even as often as weekly, might be a preferred method of feedback, it did not mention why.  Could it be perhaps the annual review worked for the Baby Boomer generation, but does not for Millenials?

Also, in this day and age, instant gratification has become the norm.  With smart phones, the internet, YouTube, Netflix, and other similar technological advancements, waiting has become a thing of the past.  Perhaps waiting for a performance review will become a thing of the past too?

In any event, as the saying goes, the only constant is change.  With a changing way of doing business or, at least, a changing workforce, companies will need to be prepared to adapt to how they conduct performance reviews in a way that best suits their employees.

You can read a copy of the SHRM article on their website here:  Is the Annual Performance Review Dead?   


Last Friday, I presented a 2015 Employment Law Update to the Hawaii Chapter of the American Payroll Association.  The presentation was held in the sports room at Dave and Busters and it was an interesting experience being in that room with the big TVs and projection screen, but for a work function instead of watching the football or basketball games.

APA employment law update

My discussion included three main parts:  (1) Hawaii legislative updates; (2) recent actions by the United States Department of Labor and Hawaii Department of Labor and Industrial Relations; and (3) decisions from the Hawaii Supreme Court, United States Supreme Court, and the National Labor Relations Board.

For the Hawaii legislative update, the topics included:

  • E-Cigarettes
  • Porterage Charge Disclosures/Distribution
  • Non-Compete Agreements
  • Medical Marijuana

For the DOL/DLIR update, we discussed the following topics:

  • DOL’s Notice of Proposed Rulemaking on Exempt Positions
  • Independent Contractors

Finally, my discussion on recent court and Board decisions covered the following topics:

  • Joint employer status
  • Arrest and court record discrimination in hiring
  • Age discrimination in hiring
  • Religious discrimination in hiring

Last week, I had the privilege of speaking on a panel for the Hawaii Insurers Council to discuss current workers’ compensation trends.  The panel discussion was a part of the Insurers Council’s two-day 2015 Annual Planning Meeting.

Clearly, workers’ compensation is a very hot topic, both locally and nationally.  And, with the costs of running a business being incessantly on the rise, employers are constantly concerned about increased costs and obligations under Hawaii and federal labor and employment laws.

For this particular panel discussion, I discussed some of the hot topics I thought would be of particular interest to employers and insurance carriers.  For example, medical marijuana is currently a very hot topic, especially with the passage of Act 241 SLH 2015, which legalized medical marijuana dispensaries in the State of Hawaii.  (Although medical marijuana has been legal in Hawaii for 15 years, individuals had no way of legally purchasing medical marijuana.  Rather, they either had to grow their own or purchase it from the black market.)  With medical marijuana being readily available within the next year or so, employers in Hawaii will have to face some key questions – i.e. can they terminate the employment of an employee who uses medical marijuana and are they required to cover the costs of medical marijuana for the purposes of workers’ compensation treatment?

Another topic I discussed is the possible vulnerability of the “exclusive remedy” provision for workers’ compensation cases, especially in light of such legal challenges that have been posed on the mainland.  In addition, there is also a growing trend for workers’ compensation opt-out provisions, whereby an employer can be excused from providing workers’ compensation insurance if they provide equivalent benefits in some other way.

Finally, due to the lack of time (there were four panelists total for just an hour of discussion), I didn’t have a chance to discuss issues related to the employee vs. independent contractor dichotomy in the context of the new “sharing economy” (e.g. Uber, Yelp, etc.)  This discussion is certainly worthy of its own blog post, which I will surely write one day, but one thing is clear – the way people obtain certain services is changing rapidly, and employers need to keep apprised of their legal obligations in light of such changes.


For 2015, instead of conducting a formal in-person presentation for the Hawaii State Legislative Update, HEC produced a YouTube video that highlights the few laws that were passed this year.  The video is pretty short (~5 minutes) and provides an update on some new labor and employment laws that resulted from the 2015 legislative session.

To view the video, please click on the following link:  HEC 2015 State Legislative Update

In addition, you can obtain the latest version of HEC’s Legislative Digest here:  Legislative Digest after Veto Deadline.

Finally, as always, if you have any questions or comments, please let me know.  Have a great day!


Last Friday, I had the opportunity to serve on a Human Resources Panel Seminar hosted by the Pacific Business News.  It was quite an honor to be asked to sit on the panel; the four other panelists have been business and community leaders for a long time and I considered it a real privilege to be able to share my thoughts on HR issues alongside these individuals.  Kam Napier, PBN Editor-in-Chief, served as the moderator and he did a great job making sure the discussion flowed smoothly and that we addressed many of the hot topics that are facing HR professionals today.

PBN HR Panel(Pic credit: PBN)

Some of the topics we discussed included hiring practices, working out differences that arise between generations (i.e. Baby Boomers vs. Gen-X vs. Millennials), and new laws that affect the way employers must conduct their businesses.  Some of the panelists discussed the difficultly of hiring talented employees in a job market where the unemployment rate is sitting at just 3.7%, the importance of wellness programs, and the value of creating a work culture that inspires employees.  I had an opportunity to discuss the impact recent court decisions such as Adams v. CDM Media and EEOC v. Abercrombie and Fitch will have on how employers conduct their hiring practices.  In addition, I also discussed the importance of training managers (who are involved in the hiring/interview process) on how to properly conduct job interviews.  I explained that although many managers are great at doing their day-to-day tasks, they are not always kept apprised of recent changes to employment laws that might affect how they can make their hiring decisions.  I also explained some of the dangers involved with providing employment references through the “coconut wireless” because you never know what type of information (or misinformation) might end up getting spread to others.  Therefore, as a matter of practice, the “name, rank and serial number” method is still your best bet.

Finally, as always, I made sure the stress that, when it comes to managing your workforce, “the best defense of a good offense.”  In other words, I firmly believe that the best way to address workplace problems is to try to proactively prevent them from happening in the first place.  In this day and age, HR professionals have transitioned from being a clerical cost center that processes payroll and benefits to a strategic department that oftentimes partners with corporate officers in leading a business into the future.  Therefore, it is imperative for HR professionals to stay ahead of the game, be proactive, and help their companies move forward.

Overall, I would say the event was very successful and I had a lot of fun.


One of the issues that has come up quite often in the past few years is whether employers should use social media sites (such as Facebook, Instagram, and LinkedIn) to look up information about job candidates.  HR professionals and attorneys actually disagree on the answer to this question:  the conservative approach recommends that employers avoid using social media (because, hey, even the EEOC says so!) while the risk-takers think it’s okay (because, well, A LOT of companies are already doing it anyway).

d8b00134f0b2def18ee5101b7aa698e7One of the risks with researching a job candidate on social media is you can learn things about the job candidate that you are not allowed to ask about during the hiring process.  For example, one of the first items you will see when visiting an individuals Facebook or LinkedIn page is their profile picture – and that picture can reveal a lot about the individual, such as their sex, race and age.  In addition, social media profiles often contain information about an individuals marital status, religion, sexual preference, etc.  The list goes on and on.  And, with the recent Hawaii Supreme Court decision in Adams v. CDM Media, it just became much easier for a rejected applicant to prevail on a failure to hire claim and more difficult for an employer to defend against one.  So, for me, because there is currently no need to look up an applicant’s Facebook page, especially if you already have a vetting process that works well, I usually recommend that employers do not research job applicants via social media.

A related issue that has come up recently is whether an employer can ask job applicants to submit a headshot with their job application.  In fact, I was recently asked this very question by a reporter from the Pacific Business News, and so I shared my thoughts.  In a nutshell, I explained that while it was not per se illegal – at least not in Hawaii – to ask an applicant for a picture or headshot, it is a dangerous practice to do so for many of the same reasons that I advise employers against researching a job applicant’s social media account (unless the individual is applying to be a model, spokesperson, or other job position where their looks would constitute a BFOQ).  I also specified that a picture can reveal many characteristics about an individual, such as race, sex, age, and ethnicity that an employer cannot inquire about through the job application or other parts of the hiring process.  In addition, in the section of their website discussing “Prohibited Employment Policies/Practices” the EEOC has stated that “employers should not ask for a photograph of an applicant.  If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.”

An online version of the PBN article can be viewed here:  PBN Article on Sky Waikiki Hiring Process.


For some reason last week, my Facebook feed was full of people complaining about the fact that it was Monday and they had to go back to work.  It was a little unusual to see so many posts complaining about Monday, and I almost thought that there was an internet movement that I wasn’t aware of where everybody was supposed to say how much they hated Mondays.  Poor Mondays, they never did anything wrong…


Today (also a Monday), strangely enough, I did not see a single post from anybody in my Facebook feed complaining about Monday. But then again, I was only on Facebook for about 5 minutes during my lunch break.  Nevertheless, because a large segment of my readership includes HR professionals, I thought I’d share a funny HR article entitled “31 of the Stupidest Things Ever Put on a Resume” to bring some lightheartedness to our Monday.  The article comes from the HR Morning website, and compiles a list of user comments from Reddit in response to a thread asking other HR professionals to share “the most ridiculous things [they've] seen on a resume.”  Some gems from the article include the following resume items:

  • “None of my references really like me, so please don’t believe what they say.”
  • “Grate communication and atention to details”
  • “Applied to Harvard” (under the education profile)
  • “2.0 GPA”
  • “Italian Cuisine Logistics Engineer” (he was a pizza guy)

You can see the entire list on the’s website here:  31 Things…  Happy Monday, everybody!