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Session Ends; HEC Legislative Digest Updated After Adjournment Sine Die
Written by admin
Tuesday, 07 May 2013 11:17

The long days and late nights at the Capitol are over, and the 2013 Legislative Session has come to an end.

The Hawaii Employers Council (“HEC”) has an updated Legislative Digest for bills that were passed by the Legislature during the 2013 legislative session.  Fortunately for employers, only a few employment-related bills survived this legislative session.  A quick summary of the fate of employment bills from this year is as follows…

Bills that have already been signed into law by the Governor include:

  • Notice Period for UI Appeals Hearings
  • Pay Records and Pay Stubs

Bills that have been sent to the Governor for his approval (or veto) include:

  • Breastfeeding Break Time
  • Workers’ Compensation (“WC”) Medical Fee Schedule Study
  • Definition of “Small Employer” for Health Insurance

Bills that did not pass this year include:

  • Minimum Wage
  • Successor Employers and Employee Retention
  • Paycheck Withholdings for Restitution Cases
  • Organ Donor Leave
  • Social Media Password Privacy
  • Unemployment Insurance Contribution Rates Changes
  • Paid Sick and Safe Leave
  • Elimination of IMEs for WC Cases
  • Meal Breaks
  • Discrimination against Unemployed Individuals
  • Abusive Workplaces
  • GET Increase

In the next couple months, I will be giving several presentations on the 2013 legislative session, including HEC’s 2013 Legislative Update on June 21, 2013.  I will also be doing in-house presentations for several of HEC’s members and industry roundtable groups.  If you are able to join us at any of those presentations (and would like to find out what “OTBD” means), I hope to see you there.

To view the updated Legislative Digest, as well as an article highlighting several of the bills mentioned above, you can visit HEC’s website here:  HEC Offers Final Bill Summary for 2013 Session.

 
HEC Legislative Digest Updated After Second Crossover
Written by admin
Thursday, 18 April 2013 11:25

The Hawaii Employers Council (“HEC”) has an updated Legislative Digest for bills that made it past Second Crossover.  Some of the bills that are still alive address the following areas of law:

  • Minimum Wage
  • Successor Employers and Employee Retention Requirements
  • Paid Leave for Organ, Bone Marrow or Stem Cell Donations
  • Employee Breastfeeding Rights
  • Workers’ Compensation Medical Fee Schedule
  • Income Withholding Requirements for Criminal Restitution Cases

If you would like to view the Legislative Digest, you can view a copy here:  HEC Legislative Digest – After Second Crossover.  Earlier versions of the Legislative Digest as well as our “Highlights” (which provide a more detailed discussion of some of the bills) can be viewed on HEC’s website here:  HEC Newsletters.

 
Governor Proposing $1.50 Increase To Minimum Wage
Written by admin
Wednesday, 23 January 2013 16:31

In his State of the State address yesterday, Governor Abercrombie stated that he is proposing an increase of $1.50 to the state’s minimum wage.  The minimum wage is currently $7.25 per hour.  The Governor’s proposal would raise the minimum wage to $8.75.  In his speech, he stated:

Today, there still exists a hard-working sector of our society that deserves continued recognition. These are the working-class residents who earn the minimum wage. The minimum wage, currently at $7.25 per hour, has not increased for over 6 years. Nineteen other states plus the District of Columbia have higher minimum wage rates than Hawaii, with less to confront in terms of cost of living.

Another component of the Governor’s proposal – which was not included in his speech – would tie the minimum wage to the consumer price index (“CPI”) each year.  This means that if the CPI increases, the minimum wage would increase each year.  If the CPI decreases, however, the minimum wage would the same.

My concerns about the Governor’s proposal are two-fold.  First, an increase of $1.50 is pretty high; it’s basically a 20% increase over the current minimum wage.  In the private sector, you never see employees getting a raise of 20%.  Second, tying the minimum wage to the CPI each year is very risky, because the economy should be examined over the course of multiple years, not just one year.  Additionally, allowing the minimum wage to increase based on a higher CPI, but not decrease based on a lower CPI could raise the minimum wage higher than anticipated.

The proposed bills are HB 916 and SB 1147, and you can view them here and here.

You can read an article in the Star-Advertiser about the Governor’s proposals here (which also includes a couple quotes by yours truly.)  You can read the full text of his speech here.

 
‘Tis The Season
Written by admin
Wednesday, 12 December 2012 11:14

Happy Holidays, everybody!

As we are all aware, holiday parties are an excellent way for employers to boost employee morale, build camaraderie, and celebrate a successful year of business.  At the same time, however, employers should be cautious about the pitfalls that throwing a holiday party can bring.

Alcohol Issues

Employers should take caution when serving alcohol at a company-sponsored holiday party.  First and foremost, employers should make sure that somebody is checking the ID’s of anybody who consumes alcohol.  The purpose of checking ID’s is to avoid serving alcohol to a minor.

Second, employers should also make sure that any individual who is visibly intoxicated is not served any more alcohol.  The purpose of this is to avoid “dramshop” type liability for anybody who drinks at a company-sponsored party and then attempts to drive afterward.  It is also a good idea to provide several non-alcoholic drink options, so guests don’t feel like alcoholic drinks are their only option.  Some employers also limit the amount of drinks their employees can consume by the use of drink coupons.

Third, employers should also provide guests with alternative forms of transportation if they are unable to drive, such as cab rides or designated drivers.

Fourth, in order to avoid some of the problems mentioned above, employers should remind employees (and their guests) to drink responsibly.

Finally, employers should also review their insurance policies to determine if they can serve alcohol at a company-sponsored party in the first place.

Sexual Harassment Issues

Oftentimes, when employees attend company-sponsored parties, they forget they are still in a work-related setting.  Once you add some alcohol into the mix, there is a potential that employees may engage in conduct that would violate a company’s anti-sexual harassment policy.  Therefore, employers should make sure to remind employees that the party is work-related, and that all workplace rules still apply at the party.

For example, while it may be festive to have somebody dressed in a Santa Claus suit during the event, employees should not be “sitting on Santa’s lap” because such behavior could be deemed inappropriate under Hawaii and Federal sexual harassment laws.  As another example, employees should be reminded to dress appropriately, so that they don’t dress in a manner that could be deemed inappropriate for a work-related event.

Finally, employers are warned to NOT hang a mistletoe at the party.  See, Exhibit A:

Other Issues

Employees should be reminded that the holiday parties are completely voluntary, and therefore, they are not required to attend the event.

Finally, employers should weigh the pros and cons of having a holiday party on a weekday versus the weekend.  If the party is on a weekday, the employees might not drink as much alcohol or get too rowdy, which alleviates some of the concerns above.  On the other hand, if employees do drink too much alcohol or stay up late, they might be unproductive at work the next day.  If the party is on a weekend, employers do not have to worry about employees’ loss of productivity on the day after the party, but there is a high likelihood the employees will consume more alcohol than they would on a weekday.

 
U.S. Supreme Court Hears Oral Arguments In Two Employment Law Cases
Written by admin
Tuesday, 04 December 2012 22:53

The 2012-2013 term of the United States Supreme Court is currently in session, and the High Court recently heard oral arguments for two cases involving employment law issues.

The first case, Vance v. Ball State University, deals with the issue of what type of authority must an employee possess to constitute a “supervisor” for purposes of imposing strict liability on an employer for the actions of its supervisors, under Title VII of the Civil Rights Act of 1964.  The specific question in this case is whether an employer is strictly liable under Title VII for harassment by (a) employees who have authority to oversee and direct the work of the alleged victim, or (b) only those who have the authority to “hire, fire, demote, promote, transfer, or discipline” the alleged victim.

This issue is significant, because of the landmark cases of Faragher v. City of Boca Raton and Burlington Industries, Inv. v. Ellerth, where the Supreme Court ruled that an employer is vicariously liable for severe or pervasive workplace harassment committed by a supervisor of the victim.

Currently, the different federal circuit are split on this issue.  The Second, Fourth, Ninth and Tenth Circuits have adopted a broader approach, and ruled that strict liability under Title VII extends to employees who have the authority to direct and oversee their victim’s daily work.  Additionally, the EEOC Guidelines also set forth a broader definition of “supervisor” as somebody who has the authority to direct employees’ daily work activities.  On the other hand, the First, Third, Sixth, Seventh, and Eighth Circuits have adopted a narrower approach, and ruled that strict liability applies only for supervisors who have authority to “hire, fire, demote, promoted, transfer, or discipline” the alleged victim.

The Supreme Court heard oral arguments for this case on November 26, 2012.

The second case, Genesis Health Care Corp. v. Symczyk, deals with the issue of whether a collective action under the Fair Labor Standards Act (“FLSA”) becomes moot when the lone plaintiff receives an offer of judgment from the employer that fully satisfies the FLSA claim.

In this case, the Third Circuit Court of Appeals ruled that the employer’s offer of judgment did not render moot a plaintiff’s claim under the FLSA.  The court reasoned that it did not want to enable employers to “pick off” individually-named plaintiffs in order to avoid FLSA collective action claims.

The Supreme Court heard oral arguments for this case on December 3, 2012.