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Collective Bargaining
2014 Legislative Session: Running Updates

Each year, the Hawaii Employers Council provides its members with updates on labor and employment law bills that are being addressed by the legislature. One of those documents, the Legislative Digest, is actually currently available to the general public, and can be accessed here:  HEC Legislative Updates.

Bills that are still alive as of the Second Lateral deadline address (1) the minimum wage, (2) payment of wages via direct deposit and pay cards, and (3) workers’ compensation drugs, fee schedule and settlements.

For the 2014 Legislative Session, the Legislative Digest is available for the following key deadlines:

  • Bills Introduced (available)
  • First Lateral (available)
  • First Crossover (available)
  • Second Lateral (available)
  • Second Crossover (available)
  • Sine Die  (available)
  • Veto Deadline (available)

As more deadlines pass, I will update this blog entry to indicate when the most recent Legislative Digest is available.

Other updates, such as articles providing a detailed explanation of several of the significant measures and talking points on certain bills, however, are available only to HEC members.

Federal Judge Strikes Down Hawaii’s “Sick Leave Law”

On New Years Eve, U.S. District Court Judge Susan Oki Mollway issued an order ruling that Hawaii’s “sick leave law” – as passed during the 2011 state legislative session – was unlawful.

As background, in 2011, the State of Hawaii passed the “sick leave discrimination” law, which would prevent unionized employers with 100 or more employees from discriminating against an employee for using accrued and available sick leave.  Specifically, Act 118 from 2011 amended Section 378-32  to provide as follows:

(b)  It shall be unlawful for an employer or a labor organization to bar or discharge from employment, withhold pay from, or demote an employee because the employee uses accrued and available sick leave; provided that:

(1)  After an employee uses three or more consecutive days of sick leave, an employer or labor organization may require the employee to provide written verification from a physician indicating that the employee was ill when the sick leave was used;

(2)  This subsection shall apply only to employers who:

(A)  Have a collective bargaining agreement with their employees; and

(B)  Employ one hundred or more employees;


(3)  Nothing in this subsection shall be construed to supersede any provision of any collective bargaining agreement or employment benefits program or plan that provides greater employee benefits or rights.”

In a lawsuit entitled Hawaii Pacific Health, et. al. v Dwight Takamine, DLIR, several Hawaii employers sued the Hawaii Director of Labor to challenge the validity of this new law.  Their attorneys argued that that it this new state law (1) was preempted by Federal law and (2) violated the equal protection rights of unionized employers.  Judge Mollway agreed with both arguments, and struck down the law.

Specifically, the judge noted that the sick leave discrimination law was attempting to regulate conduct that should be “left to the control of economic forces.”  In other words, this was the type of issue that should be left to collective bargaining between a union and employer.  Additionally, the court also ruled that the law treated unionized employers less favorably than non-unionized employers.  Therefore, the law violated the equal protection rights of unionized employers.

The court set a hearing for April 15, 2013 to determine whether she would invalidate the entire law, or just the portion that referred to unionized employers.  (She also indicated an inclination, however, to strike down the entire law.)

You can read Judge Mollways decision here:  HPH v. Takamine.  You can view the original bill that led to the sick leave discrimination law here:  Sick Leave Bill.

Governor Lingle Vetoes Sick Leave and Unemployment Bills

Earlier today, Governor Linda Lingle vetoed two bills that would have affected Hawaii employers in a negative way.

First, the Governor vetoed SB 2883, otherwise known as the sick leave bill.  If enacted into law, the bill would have made it an unlawful practice for an employer to bar or discharge from employment, withhold pay from, or demote an employee because the employee uses accrued and available sick leave.  The law would have applied to employers who had a collective bargaining agreement and had 100 or more employees.  This bill had serious legal flaws, including being preempted by the National Labor Relations Act and would have been an unlawful impingement on employer’s collective bargaining rights.  In addition, it could have potentially led employers to do away with sick leave policies, which would have been an unintended but adverse effect on employees.

Second, the Governor vetoed SB 2324, which addressed unemployment benefits.  If enacted into law, the bill would have allowed an individual who was a part-time worker, but quit his or her job without a valid reason, or was terminated for cause, to still receive unemployment benefits.  This bill would have clearly been inapposite to the purpose and intent of Hawaii’s current unemployment laws.  Additionally, it would have depleted the State of Hawaii’s unemployment insurance funds, because anybody would then be eligible to receive unemployment benefits, even when their employment was terminated for cause.

Both vetoes are good news for Hawaii employers, and were good vetoes based on sound legal and practical reasoning.

Union Can Waive Employees’ Right to Sue for Discrimination

In a 5-4 decision issued today, the United States Supreme Court ruled in 14 Penn Plaza v. Pyett (U.S. Supreme Court, April 1, 2009) that a provision in a collective bargaining agreement that “clearly and unmistakably” waived an employee’s right to sue under the Age Discrimination in Employment Act (“ADEA”) was enforceable.

In its decision, the court noted that an agreement to arbitrate employment discrimination claims is a mandatory subject of bargaining under the National Labor Relations Act (“NLRA”) In addition, the court also noted the ADEA itself does not remove age discrimination claims from the NLRA’s broad sweep, and there is nothing in the law to suggest any type of distinction between arbitration agreements signed by an individual and those agreed by a union representative.

Therefore, where employees have a collective bargaining agreement that says arbitration is the “sole and exclusive remedy” for ADEA claims, the employees have waived their right to litigate those claims in court.