Blog Archives

Independent Contractors
American Payroll Association 2015 Employment Law Update

Last Friday, I presented a 2015 Employment Law Update to the Hawaii Chapter of the American Payroll Association.  The presentation was held in the sports room at Dave and Busters and it was an interesting experience being in that room with the big TVs and projection screen, but for a work function instead of watching the football or basketball games.

APA employment law update

My discussion included three main parts:  (1) Hawaii legislative updates; (2) recent actions by the United States Department of Labor and Hawaii Department of Labor and Industrial Relations; and (3) decisions from the Hawaii Supreme Court, United States Supreme Court, and the National Labor Relations Board.

For the Hawaii legislative update, the topics included:

  • E-Cigarettes
  • Porterage Charge Disclosures/Distribution
  • Non-Compete Agreements
  • Medical Marijuana

For the DOL/DLIR update, we discussed the following topics:

  • DOL’s Notice of Proposed Rulemaking on Exempt Positions
  • Independent Contractors

Finally, my discussion on recent court and Board decisions covered the following topics:

  • Joint employer status
  • Arrest and court record discrimination in hiring
  • Age discrimination in hiring
  • Religious discrimination in hiring
Hawaii Insurers Council Workers’ Comp Panel

Last week, I had the privilege of speaking on a panel for the Hawaii Insurers Council to discuss current workers’ compensation trends.  The panel discussion was a part of the Insurers Council’s two-day 2015 Annual Planning Meeting.

Clearly, workers’ compensation is a very hot topic, both locally and nationally.  And, with the costs of running a business being incessantly on the rise, employers are constantly concerned about increased costs and obligations under Hawaii and federal labor and employment laws.

For this particular panel discussion, I discussed some of the hot topics I thought would be of particular interest to employers and insurance carriers.  For example, medical marijuana is currently a very hot topic, especially with the passage of Act 241 SLH 2015, which legalized medical marijuana dispensaries in the State of Hawaii.  (Although medical marijuana has been legal in Hawaii for 15 years, individuals had no way of legally purchasing medical marijuana.  Rather, they either had to grow their own or purchase it from the black market.)  With medical marijuana being readily available within the next year or so, employers in Hawaii will have to face some key questions – i.e. can they terminate the employment of an employee who uses medical marijuana and are they required to cover the costs of medical marijuana for the purposes of workers’ compensation treatment?

Another topic I discussed is the possible vulnerability of the “exclusive remedy” provision for workers’ compensation cases, especially in light of such legal challenges that have been posed on the mainland.  In addition, there is also a growing trend for workers’ compensation opt-out provisions, whereby an employer can be excused from providing workers’ compensation insurance if they provide equivalent benefits in some other way.

Finally, due to the lack of time (there were four panelists total for just an hour of discussion), I didn’t have a chance to discuss issues related to the employee vs. independent contractor dichotomy in the context of the new “sharing economy” (e.g. Uber, Yelp, etc.)  This discussion is certainly worthy of its own blog post, which I will surely write one day, but one thing is clear – the way people obtain certain services is changing rapidly, and employers need to keep apprised of their legal obligations in light of such changes.

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.

Employers (Generally) Own Creative Works Of Their Employees

Over the years, I have had many clients ask me who owns the intellectual property rights to the creative works of their employees.  This question has arisen in a variety of situations, ranging from design companies, to companies that are asking their employees to assist with company branding.

In JustMed, Inc. v. Byce (9th Cir. April 5 ,2010), the Ninth Circuit recently gave us some guidance on this issue.  In issuing its decision, the court first noted that the federal Copyright Act provides that copyright ownership “vests initially in the author or authors of the work.”  The court then noted, however, that an exception to this rule exists under the “works made for hire” doctrine, where the “employer or other person for whom the work was prepared is considered the author” and owns the copyright, unless there is a written agreement to the contrary.

The court also explained that a “work made fore hire” is a “work prepared by an employee within the scope of his or her employment.  Therefore, works created by employees belong to the employer, but works created by an independent contractor remain with the original author.

In this case, the court ruled that the original author was an employee, and not an independent contractor.  Interestingly, there were factors that supported a finding that the author was either an employee or independent contractor, and the deciding factor was that the employer was a “small start-up” company that conducted business more informally.  Therefore, it was more difficult to decide whether the individual in question was an employee or independent contractor, and for the purposes of this particular case, it should not make the company more susceptible to losing control over products created within the company.  Go figure.

IRS To Audit 6000 Employers On Independent Contractors

The Internal Revenue Service has recently announced that it will be conducting random audits of approximately 6,000 U.S. employers for employment tax compliance and proper classification of independent contractors.  The audits will be conducted over the next three years, and will include employers of all sizes and types, including non-profit organizations.

The audits are intended to serve two purposes:  (a) generate revenue from non-compliant employers  and (b) serve as a statistical sample of employers that are in compliance while identifying areas of non-compliance and techniques used to avoid employment taxes.  The audits will focus on worker classification, fringe benefits, non-filers, officer’s compensation, and employee expense reimbursement.

Oftentimes, employers are tempted to classify workers as independent contractors, rather than employees, in order to save costs on employee benefits and employment taxes.  Employers should be aware, however, that incorrectly classifying employees as an independent contractor can lead to hefty penalties and fines.  In addition, employers can also be liable for other claims, such as medical bills, workers compensation benefits, and unpaid overtime, should they arise.

Employers are advised to check whether their workers are properly classified as employees or independent contractors.  You can view the federal guidelines on independent contractors here and the State of Hawaii guidelines here.  You should also contact an experienced labor and employment attorney if you need assistance interpreting these guidelines.