Blog Archives

The August 2014 issue of Hawaii Business Magazine contains an article discussing a new law that was passed from the 2014 legislative session which modernizes Hawaii’s payment of wages law by clarifying that employers may pay their employees’ wages by direct deposit or paycards under certain circumstances.   The author of the article, Alex Bitter, and I had a lengthy conversation about the new law, and he ended up quoting me a couple of times for the article.

Under Hawaii’s old law, employers were only permitted to pay wages via “cash” or “check.”  (Technically, the DLIR previously authorized the payment of wages via direct deposit and paycards, but that authorization came from the department’s administrative authority and did not actually amend Hawaii’s law.  Rather, it simply provided the department’s interpretation of Hawaii’s payment of wages law.)

This new law, Act 208, expressly authorizes employers to pay employees via direct deposit or paycards, if certain conditions are met.  For direct deposit, the employer must comply with six different requirements, including obtaining voluntary authorization in writing, using a financial institution that is insured by the FDIC or comparable agency, allowing the employee to cancel the direct deposit at any time, providing a pay statement to the employee, and not requiring the employee to pay any costs or fees for the direct deposit.

For paycards, employers must comply with 12 different requirements, including providing a notice to employees of paycard conditions, accepting responsibility for fees assessed against the employee that are outside the paycard fee schedule, and allowing employees the ability to make at least three free withdrawals on the card (at least one of which permits withdrawal of the full amount of the employee’s net wages).

You can read a copy of the new law here:  Act 208.  You can also read a copy of the Hawaii Business Magazine article here:   New Rules Make Paycards More Costly for Companies.

 

On July 8, 2014, we passed the final deadline of the 2014 Legislative Session, the Veto Deadline.  The Veto Deadline is the date by which the Governor must either sign or veto a bill.  Any bill that is not vetoed becomes law “without the governor’s signature.”  This year, the Governor did not veto any of the employment-related bills.

Some of the bills that have became law include those addressing the following areas:

  • Minimum Wage (Act 82) – increases the states minimum wage
  • Private Guards (Act 94) – relaxes CE requirements for private guards
  • TDI (Act 160) – adds “organ donation” as an eligible disability to Hawaii’s TDI law
  • Organ, Bone Marrow or Stem Cell Donation (Act 161) - creates new leave law
  • Direct Deposit or Pay Cards (Act 208) – updates Hawaii payment of wages law
  • WC Drugs (Act 231) – sets price for repackaged, relabeled or combined WC drugs
  • Hawaii Health Connector (Act 233) – changes the operations of the Health Connector

A full list of bills that may be of interest to employers can be viewed on the HEC Legislative Digest, which can be accessed on the Legislative Updates section of the HEC website.  The Legislative Digest is currently available to the public.  In addition, HEC members can also access a Highlights article that discusses several of these new laws in more detail.

 

Just as I was about to step into a lunch meeting yesterday, I got call from Gina Mangieri saying that her story on the gender identity lawsuit garnered so much interest (and questions) from viewers, she wanted to immediately do a follow-up story on some related issues.  For this second story, she wanted to talk about access for transgender individuals to areas open to the public, including restaurants at private businesses, as well as locker rooms for gyms such as 24-Hour Fitness.  Therefore, I went to the KHON2 studios to meet with her to answer a few questions about Hawaii’s public accommodations law.

During this interview, I explained that Hawaii’s public accommodations law prohibited businesses from discriminating against individuals on the basis of their gender identity.  In other words, a private business (that is open to the public) cannot refuse service to an individual on the basis that the individual is a transgender.   Specifically, Hawaii’s public accommodations law prohibits businesses from denying an individual “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.”  I also noted, however, that unlike the law on public accommodations for individuals with disabilities, the law is not entirely clearly on what types of accommodations must be provided to transgender individuals, if any.

You can view the news clip on KHON2′s website here:  Anti-Discrimination Law Doesn’t Specify Access for Transgenders.

On a side note, before we started our interview, I saw Joe Moore and Pat Sajak walking together through the studio.  Apparently, they are doing a play together at the Hawaii Theatre later this month.

 

Yesterday morning, I was interviewed by Gina Mangieri from KHON2 news about a pending lawsuit and charge with the Equal Employment Opportunity Commission by a state employee from the Public Safety Department that alleged she was discriminated against because of her gender identity.  The employee is a transgender individual who identifies herself as a female.  Her lawsuit alleged she was denied access to the women’s restroom, and instead, was assigned the use of a “gender-neutral” restroom at her workplace.

During the interview, I explained that while Hawaii does have a relatively new law that prohibits employment discrimination based on an individual’s gender identity or expression, the law is not entirely clear on what types of workplace accommodations (if any) must be provided for transgender employees.  For example, unlike Hawaii discrimination law on disability and pregnancy, there are no Administrative Rules that address accommodations for transgender employees.

I also clarified, however, that there is a growing national trend of court decisions ruling that employers should allow employees to use a restroom based on the employee’s perceived gender.  Therefore, employers who want to take the safe approach to this issue should follow the national trend.  At the same time, none of those court decisions are from Hawaii – therefore, while they may be instructive and provide some guidance on how to handle these types of situations, they are definitely not binding on any Hawaii employers.

The story was featured on the 10 o’clock news last night.  You can view a news clip of the story on the KHON2 website here:  Transgender Employee Sues State for Discrimination.

This was my first time meeting Gina, and she seemed like a really intelligent and personable reporter.  Here’s a photo of us standing outside HEC’s offices.

 

Yesterday, I had the opportunity to speak at the HR Ohana Meeting to about 100 human resources professionals from all campuses of the University of Hawaii, which included the Manoa campus, as well as all neighbor island campuses and community colleges.

The meeting took place at Windward Community College, and man, I had no idea that WCC had such a beautiful campus.  On one side of the campus, you have a majestic view of the Koolau mountain range.  On the other side, you have a magnificent view of the ocean.  It was incredible, to say the least.

I was asked to speak about current hot topics in labor and employment law, so I included the following four topics in my presentation:  (1) 2014 legislative update; (2) social media and the workplace; (3) the possible unionization of Northwestern University football players and (4) employment law rights of same-sex couples in Hawaii following the Windsor court decision and legalization of same-sex marriage in Hawaii.

One of the speakers who presented before me talked about the “HR Tsunami” and how the duties of HR professionals in the workplace are becoming more significant as they take on more active roles in the strategic planning and management of corporations.  In other words, HR professionals are not just performing administrative functions.  I felt that this particular topic was a great segue into my presentation, because it gave me an opportunity to discuss the importance of being proactive in employment-related decisions and reinforce my motto that “the best defense is a good offense.”  It was also good to see that so many people chose to attend the meeting; considering that it was voluntary, having 100 attendees is fantastic because it shows that these HR professionals are doing their own part to be more proactive about their job functions.

 

On Friday before Memorial Day Weekend, Governor Abercrombie signed SB 2609 CD1 - the minimum wage bill from the 2014 legislative session - into law.  The state’s minimum wage is currently $7.25.  This bill will increase the minimum wage four times over the next four years as follows:

  • January 1, 2015 – $7.75
  • January 1, 2016 – $8.50
  • January 1, 2017 – $9.25
  • January 1, 2018 – $10.10 (<– Clayton Hee got that extra $0.10 that he wanted.)
In addition, this bill also increases the state’s tip credit (which is currently just 25 cents per hour) to 50 cents on January 1, 2015 and 75 cents on January 1, 2016.  In order to take any tip credit, however, the employee at issue must earn at least $7.00 above the minimum wage in tips and wages.  In effect, an employee must earn $7.50 an hour in tips beginning January 1, 2015 and $7.75 an hour in tips beginning January 1, 2016 for an employer to take a tip credit.  While this increase in the tip credit may be welcome news for some businesses, other employers will lose the tip credit altogether for employees who earn less than $7.50/$7.75 an hour in tips.  In other words, those employers will lose the 25 cent tip credit they currently utilize.

 

Happy MDW everybody!  I hope you’re all excited about the three-day weekend coming up.

Social media has been one of the hottest topics of the past few years for human resources professionals, and I’ve been working very hard at keeping Hawaii businesses up-to-date on the latest changes in the law, as well as helping to provide them with some “best practices” for how to handle social media issues for their particular workforce.

The May 2014 issue of Hawaii Business magazine contains a great article by Catherine Toth that addresses some of these issues and discusses current trends for social media and the workplace.  Cat and I had a nice long talk about some of the legal issues surrounding social media, and I ended up having a couple of quotes in the article.

The article can be viewed here:  New Attitudes About Social Media.