Blog Archives

The guest speaker for the HEC Annual Luncheon this year was Kent Hirozawa, current member of the National Labor Relations Board.  It was quite an honor to have Mr. Hirozawa give a presentation during the luncheon.  He shared some of his insights on current issues the Board is facing, including cases dealing with the interplay between employees’ Section 7 rights and company policies.  He also urged the audience to take take a close look at GC Memorandum 15-04, which provides a detailed analysis of how the NLRB’s General Counsel determines whether a work rule violates Section 7.

In addition, Mr. Hirozawa also spent some time discussing the impact the new quickie election rules have had on the timing of representation elections.  He presented the following figures, which are based on the time period from April through October of 2014 and 2015 (the new rules took effect on April 14, 2015).  As seen below, representation elections now occur about two weeks earlier than they did under the old rules.  Based on these figures, the new rules have clearly earned the moniker “quickie election rules.”

Median number of days between filing of petition and representation hearing:

  • 2014 – 13 days
  • 2015 – 10 days

Median number of days between the filing of petition and all elections:

  • 2014 – 38 days
  • 2015 – 24 days

Median number of days between filing of petition and stipulated elections:

  • 2014 – 38 days
  • 2014 – 23 days

Median number of days between filing of petition and directed elections:

  • 2014 – 68 days
  • 2015 – 34 days

Amount of blocked petitions based on filing of unfair labor practice charges:

  • 2014 – 119
  • 2015 – 64

The stipulation rate (% of cases where parties agreed to a stipulated election):

  • 2014 – 89%
  • 2015 – 94%

Earlier this year, the United States Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking which would more than double the salary basis requirement under the Fair Labor Standards Act (“FLSA”).


Currently, an employee can be exempt from the FLSA’s requirements if he (1) performs certain duties (e.g. executive, administrative, professional) and (2) is paid a guaranteed salary of $455 per week (or $23,660 a year).  Under the DOL’s proposed rules, that salary guarantee would increase to around $970 per week (or $50,440 a year), which means that any executive, administrative, or professional employee who is paid under $50,440 a year would no longer be exempt.  In addition, the DOL has also proposed a couple of alternative escalator clauses, which would automatically update the salary threshold amount each year.

Ever since the DOL issued its proposed rules, one of the questions that has been on virtually every employers’ minds is “When are the final rules going to be issued?”   Many employers are trying to set their operating budgets for 2016, and the uncertainty surrounding the timing of the new rules and the new salary basis amount has been a cause of frustration.

At a recent American Bar Association conference, Solicitor of Labor Patricia Smith reportedly stated that the Final Rules are not expected before “late 2016.”  While it is not clear how soon the rules would take effect after they are issued, the federal rulemaking process requires a notice period of at least 30 days, or 60 days for any  “significant” or “major” rules (and to me, doubling the salary basis requirement should certainly be considered significant and major).


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.