Blog Archives

Legislative Updates
New Persuader Rules Issued!

They’re finally here:  the DOL’s new persuader rules have been published in the Federal Register and – at first glance – they look pretty bad.  The DOL watered down their proposed rules just a lil’ bit, and even provided a small set of different rules to allow trade associations to engage in certain activity without triggering any reporting requirements, but overall the rules will be a game-changer for most employers.

discussionI’m currently going through the rules with a fine tooth comb (the rules are either 129 or 446 pages long, depending on whether you read the version with small print or the one with a larger font and double spacing).  In a nutshell, the new persuader rule will no longer accept the “accept or reject” test for the “advice” exception.  As a result, persuaders and employers will be required to file a report for “indirect” persuader activities, which could include the following:

  • Planning, directing, or coordinating supervisors or managers;
  • Providing persuader materials;
  • Conducting seminars; and
  • Developing or implementing personnel policies or actions.

It appears trade associations are exempt from the reporting requirements if they (1) host a counter-organizing seminar but bring in outside speakers or (2) simply provide “off the shelf” materials to an employer for a union campaign.  To get a firmer grasp on how these new rules will affect organizations like the Hawaii Employers Council (“HEC”), however, I need to read through the rules and examine them in more detail.

For anybody who wants to read up on the rules, you can view the following:

In addition, HEC will be providing a seminar on May 11, 2016 that will provide an overview of the new rules, a discussion of how the new rule will impact employers, instructions on how to fill out the LM-10 form for employers, and a review of some of the legal challenges that have arisen against these new rules.  That seminar will be available to HEC members only, and on a first-come-first-served basis.

Finally, once I have a chance to read through all the rules, I’ll prepare and send out an article summarizing the new rule – which will also be available only to HEC members.

 
Electronic Cigarettes Prohibited in the Workplace

Per Act 19, Session Laws of Hawaii 2015, “electronic smoking devices” are now prohibited anywhere that smoking cigarettes or other tobacco products are also prohibited, including all enclosed or partially enclosed places of employment, as well as within 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.  This new law took effect on January 1, 2016.

e-cig ban

An “electronic smoking device” is defined as any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling from the device, including but not limited to the following:

  • Electronic cigarettes;
  • Electronic cigars;
  • Electronic cigarillos;
  • Electronic pipe;
  • Hookah pipe;
  • Hookah pen; and
  • Any cartridge or other component of the device or related product, whether or not sold separately.

Employers who have no smoking policies for their workplace should update those policies to also include electronic cigarettes as well.

 
2016 Legislative Forecast

Earlier this week, on Monday, I presented a 1.5 hour webinar that discussed several issues I anticipate will be hot topics during the 2016 legislative session in the realm of labor and employment law.  The webinar was free and available only to members of the Hawaii Employers Council.  This was the fourth year in a row that I conducted this type of webinar before the start of the legislative session.

Although this is an election year, I expect to see lawmakers addressing several significant issues during session.  Such issues will likely include the following:

  • Paid Sick and Safe Leave
  • Expansion of HFLL
  • Wage and Hour Exemptions
  • Expanded Rights for Medical Marijuana Users
  • Increased WC and TDI Penalties
  • NAICS Reporting Requirements
  • PHC Premium Supplementation Fund
  • ACA and Connector Issues
  • Employment Discrimination (in light of the Adams decision)
  • WC and IME’s
  • Social Media Privacy
  • Independent Contractors vs. Employees

Of course, these are just predictions about what we can expect to see during this legislative session.  As anybody who has been through the legislative process surely knows, the only certainty about session is that it will be full of uncertainty.

 
Let’s Talk About Drugs and Money, But Not in the Same Sentence (Quotes in the PBN)

Just recently, the Pacific Business News published a couple short articles where they included my thoughts about what we can expect during the upcoming legislative session.  The first article talked about possible medical marijuana legislation and the second article discussed Hawaii wage and hour law.

With regards to medical marijuana, I mentioned that we can expect to see bills that propose to expand the rights of medical marijuana patients in two ways.  First, medical marijuana is currently available only to individuals who have a debilitating condition, such as cancer, glaucoma, severe pain, or PTSD.  With the growing social acceptance of medical marijuana, we will likely see legislation opening up marijuana to conditions such as anxiety, stress, insomnia, and arthritis.  Second, we might also see measures that provide job protection for users of medical marijuana – meaning that an employer would be prohibited from firing an employee because the employee uses medical marijuana.

With regards to wage and hour law, we might see an increase in the salary threshold for Hawaii wage and hour exemption, which is currently set at $2,000 per month (in other words, an employee who is guaranteed a salary of $2,000 per month is exempt from Hawaii minimum wage and OT requirements, although they still need to comply with federal law).  Such legislation is especially likely in light of the DOL’s proposed increases to the salary basis for the FLSA’s exemptions.

You can read a copy of the articles here:  Medical Marijuana and Wage and Hour Exemption.

 
Hawaii Minimum Wage Now $8.50 Per Hour

Happy New Years everybody and welcome back to work!  This is just a quick reminder that the Hawaii minimum wage increased by 75 cents on January 1, 2016, which makes the new minimum wage in Hawaii $8.50 per hour.  The tip credit is still just 75 cents per hour (assuming the tipped employee earns at least $7.00 per hour in tipped income and wages).

Minimum+wage+increase.mgn (1)

In addition, the minimum wage is also scheduled to increase twice more in the next two years.  Beginning January 1, 2017, the minimum wage will be $9.25 per hour and on January 1, 2018 it will increase to $10.10 per hour.

For further discussion on the Hawaii minimum wage or tip credit, you can read a helpful guide issued by the Hawaii Department of Labor and Industrial Relations back in 2014:  DLIR Wage and Hour Notice.