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Fair Labor Standards Act
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.

Some 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 (pending)
  • Veto Deadline (pending)

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!

 
Flex Schedules and Telecommuting

A couple weeks ago, I was interviewed by Jenna Blakely from the Pacific Business News (“PBN”) on some of the legal issues employers should consider when allowing employees to work “flex time” or work from home.  The article was printed on PBN’s website this afternoon as part of their cover story on how employers and employees are dealing with work/life balance issues.  You can view the article on PBN’s website here:  The Legal Ramifications of Being a Flexible Employer.

Special thanks for Jenna for the interview and article.

 
U.S. Supreme Court Hears Oral Arguments In Two Employment Law Cases

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.

 
Court Stays Implementation Of New Rule On Mortgage Loan Originator Compensation

Last last night, the Court of Appeals for the District of Columbia Circuit issued a stay of the implementation of the new rules that would have changed the way mortgage loan originators needed to be compensated.  The news rules were scheduled to take effect today, April 1, 2011.

The final rules, if enacted, would apply to all persons who originate loans, including mortgage brokers and the companies who employ them, as well as mortgage loan officers employed by depository institutions and other lenders.

Among other things, the final rules:

  • Prohibit payments to the loan originator that are based on the loan’s interest rate or other terms.  Compensation that is based on a fixed percentage of the loan amount is permitted.
  • Prohibit a mortgage broker or loan officer from receiving payments directly from a consumer while also receiving compensation from the creditor or another person.  This means that the loan officer must either be “borrower paid” or “lender paid.”
  • Prohibit a mortgage broker or loan officer from “steering” a consumer to a lender offering less favorable terms in order to increase the broker’s or loan officer’s compensation.

The court’s stay was in response to a motion for emergency relief filed by the National Association of Mortgage Brokers (“NAMB”).  The court has also ordered the government to file a response to the motion for emergency relief by April 4, 2011, and ordered NAMB to file any reply by April 5, 2011.  The court will issue a decision after receiving the submissions from the parties.

You can view a copy of the final rules here.  You can view the court’s stay order here.