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2014 Legislative Session: Final Report

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.

 
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.

 
2014 Legislative Forecast

The 2014 Legislative Session begins on Wednesday, January 15, 2014 and runs through May 1, 2014.  This year, the legislature will likely address several labor and employment law bills that could have a significant impact on companies doing business in Hawaii.  Some of those bills include those affecting the following areas of law:

  • Minimum Wage
  • Prevailing Wage Violations for Public Works Projects
  • Successor Employers and Employee Retention
  • Paycheck Withholding Requirements
  • Independent Medical Examinations for WC Cases
  • Social Media Privacy
  • Meal Breaks
  • Sick and Safe Leave
  • Organ Donor Leave
  • Family School Leave
  • Discrimination Against Unemployed Individuals
  • GET Increase

I recently conducted a webinar for HEC members discussing each of these bills and what they could mean for employers. During the webinar, I (a) discussed the proposed changes or additions to Hawaii’s laws and (b) shared my thoughts on the impact that each of these proposed bills could have on companies doing business in Hawaii.  (HEC members can contact me for a copy of the handouts.)

In addition, I was also recently interviewed by the Pacific Business News (“PBN”) on some of the bills we anticipate will be heard during the 2014 legislative session, and their write-up ended up being the cover story for today’s edition of the PBN.  In addition to discussing employment law bills, the PBN article also discussed bills related to other issues affecting Hawaii employers.  PBN subscribers can access the article here:  Major Business Issues Facing the State Legislature in 2014.

On a final note:  To anybody who goes to the Capitol during session, if you see me there (and I will be there often), please feel free to say “Hi.”  Oh, and Happy New Year everybody!

 
NLRB Issues Report on Social Media Cases

The General Counsel for the National Labor Relations Board (“Board”) has issued a report on social media cases addressed by the Board in the past year.

The introduction to the report noted that recent developments in the Office of the General Counsel have presented “emerging issues” concerning the protected and/or concerted nature of employees’ social media activities, the coercive impact of social media activities, and the lawfulness of employers’ rules and policies on social media.  In the report itself, the General Counsel discussed several different cases and scenarios where employees were disciplined for posting statements through social media outlets – which were usually on Facebook or Twitter.

In each of these cases, the Board focused on whether the activity in question was “protected and concerted.”  Protected activity includes discussions that relate to an employee’s terms and conditions of employment.  Concerted activity needs to involve more than just one employee.  Thus, in many of the cases discussed in the report, the Board did not find that a disciplinary action taken against an employee violated the National Labor Relations Act (“Act”), because the employee had not engaged in “concerted” activity.  More specifically, those employees made statements on Facebook or Twitter, but such actions did not involve discussions with other employees. Therefore, such statements did not constitute “protected and concerted” activities.  Rather, they were simply considered to be “individual gripes.”  In other cases, however, the Board found that the employer violated the Act when it disciplined employees for engaging in “protected and concerted” activities.

Another series of cases dealt with employers who had “overbroad” social media policies.  Such polices were deemed to be unlawful, because “employees could reasonably construe them to prohibit protected conduct.”  In those cases, the employers were required to amend their social media policies.  Additionally, any disciplinary actions implemented under such overbroad policies were invalidated.

You can read a full copy of the report here.

 
New Employment Laws in Hawaii – 2011

The 2011 Legislative session was certainly not what I would call “employer-friendly,” to put it lightly.  This was the first time in over 8 years that both the legislature and governor’s office were controlled by the Democratic party.  Therefore, it was not surprising to see that many laws passed this year favored the rights of employees and labor unions, over the rights of employers.

For example, there were several changes to Hawaii’s anti-discrimination laws, which now make it unlawful for employers to discriminate against employees (a) for taking sick leave, (b) for their gender identity or expression, or (c) for their status as a victim of sexual or domestic violence.  In addition, another significant change to the law is that it now constitutes a criminal offense for an employer to not pay wages to their employees.

With the exception of the “domestic violence victim discrimination law,” all of these laws have already become effective.  Employers are advised to update their policies and handbooks accordingly.  These laws, and some others, are as follows:

Sick Leave Discrimination (Act 118, SB 1076) – This new law amends HRS 378-32, and prohibits employers who have (a) 100 or more employees and (b) a collective bargaining agreement with those employees, from barring, discharging from employment, withholding pay, or demoting an employee who uses accrued and available sick leave.

You can read my thoughts on this new law in a previous blog post here, and a copy of SB 1076 here.

Gender Identity Discrimination (Act 34, HB 546) – This new law amends HRS 378-2, and prohibits employers from discriminating against employees on the basis of “gender identity or expression.”  The way the law is written, discrimination based on “gender identity or expression” is considered a form of sex discrimination.

The legislature defined “gender identity or expression as “a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression, is different from that traditionally associated with the person’s sex at birth.”

You can read a copy of HB 546 here.

Domestic Violence Victim Discrimination (Act 206, SB 229) – This new law also amends HRS 378-2 and prohibits employers from discriminating against employees or applicants who are the victims of sexual or domestic violence, if the victim notifies the employer of such status or the employer has actual knowledge of such status.

This new law also re-titles Hawaii’s “Victim Leave” law to “Victim Protections” and requires employers to make “reasonable accommodations in the workplace” for victims of domestic violence, such as changing the contact information of the employee, screening phone calls for the employee, restructuring the job functions of the employee, changing the work location of the employee, installing locks and other security devices, and allowing the employee to work flexible hours, unless providing such an accommodation would cause “undue hardship” on the work operations of the employer.

You can read a copy of SB 229 here.  (Note:  this law takes effect January 1, 2012)

Labor Trafficking and Nonpayment of Wages (Act 146, HB 141) – This new law provides new and specific penalties for labor trafficking offenses.

The part of this new that will have the most significant impact on most employers, however, is that it is now makes it a criminal offense not to pay wages owed to an employee.  Specifically, the new law states that a person commits the offense of “nonpayment of wages” if the person, acting in the capacity as an employer, intentionally or knowingly or with intent to defraud fails or refuses to pay wages to an employee. There is an exception to this rule, where an employer is required to make deductions from an employees wages under federal or state law, or court order.

A failure to pay wages of $2,000 or more constitutes a Class C felony.  In addition, it will also be a Class C felony if a person convicted of nonpayment of wages falsely denies the amount or validity of the wages owed.  A failure to pay wages of under $2,000 constitutes a Misdemeanor.  Finally, the law provides that each missed pay period will constitute a separate offense.

You can read a copy of HB 141 here.

Workers’ Compensation for Partnerships, LLC’s, etc. (Act 196, HB 519) – This new law provides that the following individuals are exempt from workers’ compensation coverage:  (a) a partner of a partnership, (b) a partner of an LLP who has 50% or more interest in the LLP, (c) a member of an LLC who has 50% or more interest in the LLC, and (d) sole proprietors.  You can read a copy of HB 519 here.

Partial Unemployment (Act 165, SB 1088) – This new law repealed the sunset provisions on partial unemployment benefits and removed the prior 8 week limitation on partial unemployment status.  In addition, this new law also established conditions for which an individual who has established eligibility based on full-time employment may be found to have good cause for voluntarily separating from subsequent part-time employment.  You can read a copy of SB 1088 here.

Increased HOSH Penalties (Act 123, SB 1040) – This new law imposes a 10% increase on monetary penalties for violations of the Hawaii Occupational Safety and Health Law.  You can read a copy of SB 104 here.