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On Monday, April 10, 2017, Neil Gorsuch was sworn is as the 113th justice of the United States Supreme Court.  He was nominated by President Donald Trump to succeed the late Antonin Scalia and previously served as a judge on the federal Court of Appeals for the 10th Circuit.  Justice Gorsuch is known to be a strict conservative who has vowed “to be a faithful servant of the Constitution[.]”  He is known to be a proponent of “originalism,” which means the Constitution should be interpreted as perceived at the time of enactment and “textualism” which means that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law.

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The confirmation of Associate Justice Gorsuch to the Supreme Court did not come easy.  Democratic Senators waged a filibuster to prevent Gorsuch from receiving the 60 votes required to advance his nomination to a final vote, but Republicans invoked what is known as the nuclear option, which lowered the threshold on Gorsuch’s nomination to a simple majority vote.  Thereafter, the Senate confirmed Gorsuch’s nomination to the Supreme Court by a 54-45 vote.

As of yesterday, the Supreme Court once again has a full-complement of nine justices.  Supreme Court justices (typically ) have lifetime appointments.

 

These past few months, I’ve been getting a lot of questions about medical marijuana.  And no, the questions haven’t been about how to get medical marijuana!  Rather, companies and the media have been asking me various questions about the rights of businesses when it comes to medical marijuana usage, either by employees or even customers.  It appears these questions have become more and more common because medical marijuana dispensaries will be opening shortly here in Hawaii.

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Recently, the Kokua Line – a column for the Star Advertiser – wrote a couple of brief articles addressing some of the questions that are commonly raised by businesses.  You can read the articles on the following links:

There were also several bills relating to medical marijuana moving through this year’s legislative session.  Only one bill is still alive, however, and that measure would expand the reasons for which an individual could qualify for a medical marijuana card.  Under current law, an individual qualifies for medical marijuana usage if s/he has a “debilitating condition” – which currently includes cancer, glaucoma, HIV, AIDs, or a chronic or debilitating disease or condition that involves cachexia, severe pain, severe nausea, seizures, severe and persistent muscle spasms, or PTSD.

For further information about Hawaii’s medical marijuana laws, you can read the applicable statutes here:  HRS Chapter 329.

 

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.

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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.