Blog Archives

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently announced that it is seeking public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws.  The draft guidance can be viewed here:  EEOC Draft Guidance on Retaliation.

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In its proposed guidance, the EEOC outlines the elements of a retaliation claim (including protected activity and adverse action), provides an overview of EEO laws and regulations that prohibit retaliation, discusses the ADA interference provision, summarizes court decisions addressing retaliation claims, and provides “best practices” for employers.  Such best practices include (1) adopting written policies, (2) training, (3) providing anti-retaliation advice for employees, managers and supervisors, (4) follow-up, and (5) reviewing consequential employment actions to ensure EEO compliance

The EEOC has provided a 30-day period for the public to provide input on the draft guidance, which ends on February 24, 2016.  Such input may be provided using in letter, email or memoranda format.  Alternatively, hard copies may be mailed to:

Public Input, EEOC
Executive Officer
131 M. Street, N.E.
Washington, D.C. 20507

All public input will be posted on  The EEOC’s last guidance addressing retaliation was issued in 1998.


The U.S. Department of Labor just issued a new fact sheet discussing Joint Employment and Primary and Secondary Employer Responsibilities Under the FMLA.

Under the FMLA, two or more employers can simultaneously employ an individual, making them joint employers of the individual.  Joint employment exists when an employee is employed by two (or more) employers such that the employers are responsible for compliance with the FMLA.  The analysis for determining joint employment under the FMLA is the same as under the FLSA.

Here are some highlights from the new fact sheet:

  • Where joint employment exists, one employer will be the primary employer while the other(s) will be the secondary employer(s).  Determining which employer is primary will depend on (1) who has authority to hire, fire, place and assign the worker; (2) who decides how, when and the amount the employee is paid; and (3) who provides the employee’s leave or other employment benefits.
  • In the case of temporary placement or staffing agencies, the agency is most commonly the primary employer.
  • Employees who are jointly employed get counted towards the 50-employee threshold for coverage under the FMLA for all employers.
  • For purposes of determining whether an employee works at a worksite where the employer empoys at least 50 employees within a 75 miles radius, the employee’s worksite is the primary employer’s office from which the employee is assigned.
  • Primary employers are responsible for giving required notices to the employees, providing FMLA leave, maintaining group health insurance benefits, restoring the employee to the same/equivalent job upon return from leave, and preserving all records required under the FMLA.
  • Secondary employers are prohibited from interfering with an employee’s exercise or attempt to exercise FMLA rights, or from discriminating against such an employee.

The end of the fact sheet also contains a helpful chart summarizing the responsibilities of primary and secondary employers.  A copy of the fact sheet can be viewed here:  DOL Fact Sheet #28N.


Per Act 19, Session Laws of Hawaii 2015, “electronic smoking devices” are now prohibited anywhere that smoking cigarettes or other tobacco products are also prohibited, including all enclosed or partially enclosed places of employment, as well as within 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.  This new law took effect on January 1, 2016.

e-cig ban

An “electronic smoking device” is defined as any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling from the device, including but not limited to the following:

  • Electronic cigarettes;
  • Electronic cigars;
  • Electronic cigarillos;
  • Electronic pipe;
  • Hookah pipe;
  • Hookah pen; and
  • Any cartridge or other component of the device or related product, whether or not sold separately.

Employers who have no smoking policies for their workplace should update those policies to also include electronic cigarettes as well.


This is a brief summary of regulatory changes that recently took effect for federal contractors.


First, the pay transparency requirements under Executive Order 13665 just took effect earlier this week and apply to covered contracts entered into or modified on or after January 11, 2016.   As a reminder, EO 13665 prohibits federal contractors from discharging or otherwise discriminating against any employee or applicant because the individual has inquired about, discussed, or disclosed his own compensation or the compensation of another employee or applicant.  In addition, covered contractors must include a Pay Transparency Nondiscrimination Provision - and are prohibited from including any “pay secrecy” policies – in their employee handbooks.  The Pay Transparency Nondiscrimination Policy must use the language provided by the Office of Federal Contracts Compliance Programs, which can be found here:  PTNP.  (Also, as a reminder, the National Labor Relations Act also provides employment protection for individuals who discuss wages and other terms and conditions of employment with others.)

In addition, there is a new EEO is the Law Poster Supplement that federal contractors need to utilize in conjunction with the existing EEO is the Law poster.  The supplemental poster includes updated language regarding Executive Order 11246 with respect to gender identity and sexual orientation discrimination, pay secrecy, disability discrimination, and protected veterans.

Finally, the minimum wage for federal contractors who are covered by EO 13658 has increased to $10.15 per hour (or $5.85 per hour for tipped employees).  The current minimum wage poster for federal contractors can be found here:  Federal Contractor MW.


Earlier this week, on Monday, I presented a 1.5 hour webinar that discussed several issues I anticipate will be hot topics during the 2016 legislative session in the realm of labor and employment law.  The webinar was free and available only to members of the Hawaii Employers Council.  This was the fourth year in a row that I conducted this type of webinar before the start of the legislative session.

Although this is an election year, I expect to see lawmakers addressing several significant issues during session.  Such issues will likely include the following:

  • Paid Sick and Safe Leave
  • Expansion of HFLL
  • Wage and Hour Exemptions
  • Expanded Rights for Medical Marijuana Users
  • Increased WC and TDI Penalties
  • NAICS Reporting Requirements
  • PHC Premium Supplementation Fund
  • ACA and Connector Issues
  • Employment Discrimination (in light of the Adams decision)
  • WC and IME’s
  • Social Media Privacy
  • Independent Contractors vs. Employees

Of course, these are just predictions about what we can expect to see during this legislative session.  As anybody who has been through the legislative process surely knows, the only certainty about session is that it will be full of uncertainty.


Just recently, the Pacific Business News published a couple short articles where they included my thoughts about what we can expect during the upcoming legislative session.  The first article talked about possible medical marijuana legislation and the second article discussed Hawaii wage and hour law.

With regards to medical marijuana, I mentioned that we can expect to see bills that propose to expand the rights of medical marijuana patients in two ways.  First, medical marijuana is currently available only to individuals who have a debilitating condition, such as cancer, glaucoma, severe pain, or PTSD.  With the growing social acceptance of medical marijuana, we will likely see legislation opening up marijuana to conditions such as anxiety, stress, insomnia, and arthritis.  Second, we might also see measures that provide job protection for users of medical marijuana – meaning that an employer would be prohibited from firing an employee because the employee uses medical marijuana.

With regards to wage and hour law, we might see an increase in the salary threshold for Hawaii wage and hour exemption, which is currently set at $2,000 per month (in other words, an employee who is guaranteed a salary of $2,000 per month is exempt from Hawaii minimum wage and OT requirements, although they still need to comply with federal law).  Such legislation is especially likely in light of the DOL’s proposed increases to the salary basis for the FLSA’s exemptions.

You can read a copy of the articles here:  Medical Marijuana and Wage and Hour Exemption.


Happy New Years everybody and welcome back to work!  This is just a quick reminder that the Hawaii minimum wage increased by 75 cents on January 1, 2016, which makes the new minimum wage in Hawaii $8.50 per hour.  The tip credit is still just 75 cents per hour (assuming the tipped employee earns at least $7.00 per hour in tipped income and wages).

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In addition, the minimum wage is also scheduled to increase twice more in the next two years.  Beginning January 1, 2017, the minimum wage will be $9.25 per hour and on January 1, 2018 it will increase to $10.10 per hour.

For further discussion on the Hawaii minimum wage or tip credit, you can read a helpful guide issued by the Hawaii Department of Labor and Industrial Relations back in 2014:  DLIR Wage and Hour Notice.