Blog Archives

This has been a busy couple of weeks for the U.S. Department of Labor’s (“DOL”) new FLSA rules.  First, two lawsuits have been filed in a Texas federal court to seek an order preventing the DOL from enforcing its new overtimes rules.  In addition, a House bill - HR 6094 – is making its way through Congress to postpone implementation of the new FLSA rules for six months.  The new rules are currently set to take effect on December 1, 2016, which is just about two months away.


The first lawsuit was filed by 21 states and argues that the DOL overstepped its authority by raising the salary level for the FLSA’s Executive, Administrative and Professional exemptions (“EAP exemptions”).  The lawsuit argues that, instead of raising the salary level, the DOL should have reexamined the duties of the EAP exemptions.  In addition, the 21 states also challenged the automatic increases that are set to increase every three years “without regard for current economic conditions or the effect on public and private resources.”  Finally, the lawsuit posits that new DOL’s rules violate the Tenth Amendment because employment budgetary matters such as the pay requirements of state employees are subject to state sovereignty.

The second lawsuit was filed by a coalition of business groups, including the National Federal of Independent Businesses (“NFIB”) and several Chambers of Commerce.  This lawsuit argues that setting new salary threshold at an exceedingly high level and scheduling automatic increases both violate the Administrative Procedure Act.

(Both lawsuits have been assigned to Judge Amos Mazzant, who was appointed to the bench by President Barack Obama.  So, that’s not exactly great news…)

Finally, the U.S. House of Representatives just voted 241-177 in favor of passing a bill that would delay enforcement of the DOL’s new rules for six months.  The bill will now go to the U.S. Senate for consideration.  However, President Obama has previously threatened to veto the measure if it is passed and the Office of Management and Budget issued a statement that “strongly opposes” the bill.  Therefore, employers should plan to implement whatever changes they deem necessary by the December 1, 2016 effective date.


In the Kokua Line for the Star-Advertiser, Christine Donnelly answers the question of whether an employer can fire an employee who refuses to wear a Halloween costume to work because it is against her religion.  In a nutshell, the answer is no.  And, even if you could, why would you (unless you like having angry employees)?


You can read the full article here:  Labor Law Protects Refusal to Don Costume Due to Faith


Word on the street is that the U.S. Chamber of Commerce is getting ready to file a lawsuit challenging the Department of Labor’s (“DOL”) new rules under the Fair Labor Standards Act.  The new rules, which will increase the salary threshold requirement for exempt employees from $23,660 to $47,476 per year, are set to take effect on December 1, 2016.  That, my friends, is now less than three months away.


The Chamber’s lawsuit will seek a restraining order prohibiting the new rules from being enforced.  However…and this is a BIG HOWEVER, the Chamber’s lawsuit will not challenge the new salary threshold.  Rather, it will seek to invalidate portions of the new rule that create automatic updates to the salary threshold every three years.  Specifically, the lawsuit will argue that although the DOL has been given authority to set the salary threshold “from time to time,” such authority did not empower the DOL to make those adjustments via automatic updates.

Therefore, even assuming the Chamber’s lawsuit is successful, it is likely that that the portions of the rule that implement an increase to the salary threshold on December 1 will still take effect.  Accordingly, employers are advised to continue preparing for the new rules, evaluate their exempt employees, determine whether pay increases are prudent, consider adjustments to staffing and job responsibilities, and start communicating with your employees about any upcoming changes.  In addition, as always, don’t forget to work with competent employment counsel or experienced and knowledgable HR consultants when figuring out how to prepare for the new FLSA rules.

To read more about the new FLSA rules, you can read a prior post here:  The New FLSA Rules.


Wow.  Just wow.  I. Am. So. Inspired.  If you ever have a chance to see Laura Beeman, head coach of the University of Hawaii Rainbow Wahine basketball team, give a presentation or speech, I strongly recommend that you go see her.  This morning, as part of our Aloha United Way campaign, we had the privilege of having Coach Beeman come speak at HEC about her experiences as the head coach of the Rainbow Wahine basketball team.  The session was entitled “Leading to Win.”  Staff from HEC member companies, as well as HEC employees, were in attendance.


Without a doubt, Coach Beeman is a fantastic storyteller. She talked to us about how she recently had to hire two new assistant coaches just before the start of the school year (and even got her players involved in the process), what it’s like to manage a squad of female college basketball players (there were some funny stories here!), and how she leads her team (and develops some of her players to lead as well).

In discussing what it took to be an effective leader, Coach Beeman stressed the importance of building relationships, trust & honesty, accountability, and psychological safety.  She also mentioned a team-building philosophy that focused on three things:  Vision, Goals, and Standards of Behavior.  The Vision equates to how the team wanted to be perceived, or their philosophy so to speak.  The Goals were accomplishments the team sought to achieve.  And finally, the Standards of Behavior were how they would reach those Goals (which in turn help fulfill the team’s Vision).

This three-tiered approached reminded me very much of philosophy presented by the author Simon Sinek in his book Start with Why.  In his book, Simon also discusses a similar approach:   Why, What & How.  The Why is similar to Coach Beeman’s Vision; it answers the question of why we do what we do or what is our personal philosophy.  The What is the things we do to fulfill the Why, similar to the Goals set out by Coach Beeman. Finally, the How addresses how we do What we do, similar to Coach Beeman’s Standards of Behavior.  As the title to his book explains, you must start with Why.

There are a lot of similarities between sports and business – i.e. common goals, teamwork, accountability, trust, relationships, etc.  It’s no secret that the success of a team, or a business, starts at the top and trickles down to the players or employees.  After hearing Coach Beeman speak, not only was I incredibly inspired, but I understood how the Wahine Basketball team was able to have such incredible success these past few years (including three consecutive WNIT appearances, a Regular Season Championship, a Conference Tournament Title, and an NCAA tournament berth).

I look forward to their continued success this season and for the years to come.  I am also thankful that Coach Beeman was able to spend her morning with us!


In case you missed it, as of August 1, 2016, there are two new (or more accurately, revised) posters that employers must post in the workplace.


First, every employer who has employees that are subject to the FLSA (that’s most of you) must post a revised version of the FLSA poster in the workplace.  The poster must be posted in a conspicuous place as to permit employees to readily read it.  Four versions of the new poster can be obtained on the DOL’s website:

Second, employers who are covered by the Employee Polygraph Protection Act (that’s also most of you) must also post a revised version of the Employee Polygraph Protection Act poster in the workplace.  This poster must also be posted in a prominent and concpicuosu lace in every establishment of the employer where it can be readily observed yb employees and applicants for employment.  There are two versions of this poster available:

These new posting requirements are the result of an increase in fines under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.  


Hawaii is currently experiencing a major outbreak of Hepatitis A.  At last count, nearly 140 individuals in Hawaii have been infected with the Hepatitis A virus (“HAV”).   As a result, many Hawaii employers are left with a myriad of questions about the rights of employers and employees with regards to HAV in the workplace.

Many People Thinking of Questions

Examples of questions raised by employers regarding Hepatitis A include the following:

  • What is Hepatitis A?
  • How long is a person with Hepatitis A contagious?
  • Who should get tested for Hepatitis A?
  • Is there a vaccine that can prevent Hepatitis A infection?

In addition, workplace-specific questions have included the following:

  • Does the Department of Health (“DOH”) require employees in certain fields of work, such as food service or healthcare, to obtain Hepatitis A vaccinations prior to working?
  • How does a food service employer know if an employee has been found to have been infected with Hepatitis A?
  • How does a food service employer know which employees are a “contact” that needs to obtain a negative IgM test before resuming work?
  • Can an employer require employees to get vaccinated?  If so, can the employer limit this requirement only to certain job classifications?
  • Is the employer required to pay for Hepatitis A vaccinations?
  • Is time spent getting a Hepatitis A vaccination compensable under wage and hour laws?
  • Is there anything else an employer can do to help prevent the spread of Hepatitis A?
  • If an employee informs his employer that he has tested positive for Hepatitis A, what if anything can the employer tell its employees?
  • If an employee informs his employer that he has consumed food from a business that has an infected employee, what can the employer do?
  • Where can I read more information about Hepatitis A?

In response to the multitude of questions that employers have been asking the past few weeks, the Hawaii Employers Council (“HEC”) has prepared a FAQ on HAV and the workplace.  The FAQ can be accessed on HEC’s website here:  HEC Issues FAQ for Hepatitis A and Workplace Issues.

For any questions that have not been answered in the FAQ, please feel free to contact me


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.