Blog Archives

Employment Discrimination
2018 Legislative Proposals

The 2018 legislative session is well underway.This year, lawmakers introduced dozens of bills that could impact many different areas of labor and employment law.  For instance, some of these proposals could revise Hawaii law on the following topics:

  • Notice of Work Schedules
  • Paid Sick Leave
  • Hiring Practices
  • Employment Discrimination
  • Paid Family and Medical Leave
  • Pay Secrecy and Transparency
  • Social Media Privacy
  • Workplace TRO’s
  • Independent Contractors
  • Wage Discrimination
  • Minimum Wage
  • Workers Compensation
  • Temporary Disability Insurance

Many of these measures have been heard and passed out by their assigned committees, whereas others may end up on the cutting room floor this week.  The Hawaii Employers Council (“HEC”) will be closely monitoring these bills during the 2018 legislative session.

You can view a listing of bills that HEC will be monitoring here:  2018 Employment Bills Introduced.   An updated list of bills will be issued following the First Crossover deadline.

 
Got Questions About Medical Marijuana?

These past few months, I’ve been getting a lot of questions about medical marijuana.  And no, the questions haven’t been about how to get medical marijuana!  Rather, companies and the media have been asking me various questions about the rights of businesses when it comes to medical marijuana usage, either by employees or even customers.  It appears these questions have become more and more common because medical marijuana dispensaries will be opening shortly here in Hawaii.

 questions

Recently, the Kokua Line – a column for the Star Advertiser – wrote a couple of brief articles addressing some of the questions that are commonly raised by businesses.  You can read the articles on the following links:

There were also several bills relating to medical marijuana moving through this year’s legislative session.  Only one bill is still alive, however, and that measure would expand the reasons for which an individual could qualify for a medical marijuana card.  Under current law, an individual qualifies for medical marijuana usage if s/he has a “debilitating condition” – which currently includes cancer, glaucoma, HIV, AIDs, or a chronic or debilitating disease or condition that involves cachexia, severe pain, severe nausea, seizures, severe and persistent muscle spasms, or PTSD.

For further information about Hawaii’s medical marijuana laws, you can read the applicable statutes here:  HRS Chapter 329.

 
EEOC Issues New Enforcement Guidance for National Origin Discrimination

The Equal Employment Opportunity Commission recently announced that it updated its enforcement guidance for national origin discrimination.  This updated guidance replaces a manual that was issued in 2002.

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In total, the EEOC issued three documents:

According to the EEOC, the updated guidance set’s forth “the agency’s interpretation of the law and explains how federal anti-discrimination laws and regulations apply to specific workplace situations….The guidance also addresses developments in the courts since 2002, as well as topics such as job segregation, human trafficking and intersectional discrimination.”

 
Can You Force Employees to Wear a Costume on Halloween?

In the Kokua Line for the Star-Advertiser, Christine Donnelly answers the question of whether an employer can fire an employee who refuses to wear a Halloween costume to work because it is against her religion.  In a nutshell, the answer is no.  And, even if you could, why would you (unless you like having angry employees)?

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You can read the full article here:  Labor Law Protects Refusal to Don Costume Due to Faith

 
EEOC Fact Sheet on Transgender Employee Bathroom Access

In what appears to be a definitive answer to the question of whether employers must allow a transgender employee to use a restroom that is reserved for the sex with which the employee identifies, the EEOC has issued a fact sheet addressing bathroom access rights for transgender employees.

In its fact sheet, the EEOC cited to federal cases which found that denying an individual equal access to a common restroom corresponding to the individual’s gender identity is sex discrimination.  Similarly, an employer also cannot require a transgender employee to use a single-use restroom (or presumably, a unisex restroom, if a single sex restroom is available).  The EEOC has defined the term “transgender” as people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate).

Of course, this is just the EEOC’s position on the matter, and there is no guarantee federal courts will adopt the same conclusion.  Nevertheless, the EEOC’s interpretation of the law is usually given deference by the courts, so it’s a safe bet that courts will also require employers to allow transgender employees to use the restroom that corresponds to the employee’s gender identity.  In Hawaii, there is no law that directly addresses this question.  However, based on a lawsuit that was filed against the state a couple of years ago, Hawaii employers are advised to allow transgender employees to use the bathroom of their corresponding gender identity.

The EEOC’s fact sheet is in line with a fact sheet issued by the DOL’s Occupational Safety and Health Administration (“OSHA”) in 2015.