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National Labor Relations Act
Presentation for University of Hawaii’s HR Ohana Meeting

Yesterday, I had the opportunity to speak at the HR Ohana Meeting to about 100 human resources professionals from all campuses of the University of Hawaii, which included the Manoa campus, as well as all neighbor island campuses and community colleges.

The meeting took place at Windward Community College, and man, I had no idea that WCC had such a beautiful campus.  On one side of the campus, you have a majestic view of the Koolau mountain range.  On the other side, you have a magnificent view of the ocean.  It was incredible, to say the least:


I was asked to speak about current hot topics in labor and employment law, so I included the following four topics in my presentation:  (1) 2014 legislative update; (2) social media and the workplace; (3) the possible unionization of Northwestern University football players and (4) employment law rights of same-sex couples in Hawaii following the Windsor court decision and legalization of same-sex marriage in Hawaii.

One of the speakers who presented before me talked about the “HR Tsunami” and how the duties of HR professionals in the workplace are becoming more significant as they take on more active roles in the strategic planning and management of corporations.  In other words, HR professionals are not just performing administrative functions.  I felt that this particular topic was a great segue into my presentation, because it gave me an opportunity to discuss the importance of being proactive in employment-related decisions and reinforce my motto that “the best defense is a good offense.”  It was also good to see that so many people chose to attend the meeting; considering that it was voluntary, having 100 attendees is fantastic because it shows that these HR professionals are doing their own part to be more proactive about their job functions.

DOL Postpones Persuader Rules, Again

Last November, the United States Department of Labor pushed back the publication of its new rules governing persuader activity to March 2014.  Just today, however, the United States Department of Labor announced that it ill will again be postponing the publication of its new rules.  No new date was provided.

The proposed changes to the rule have drawn controversy because they impose significant restrictions on the “advice exception” to the Labor Management Reporting and Disclosure Act (“LMRDA”).  The LMRDA requires employers and legal consultants to report any arrangement for activity involved in persuading employees on issues regarding their right to organize and bargain collectively.  Currently, the advice exception provides that no employer or consultant has to file a report if that consultant simply gives advice to the employer.  If the proposed changes take effect and the advice exception is eliminated or restricted, however, it could potentially require unprecedented disclosures from attorneys and law firms that represent employers in labor relations matters.

Although it is not entirely clear why the DOL has (again) postponed publication of their new rules on persuader activity, it is very likely the DOL is concerned about the potential legal challenges critics of the proposed new rules have threatened to make.  Such critics include the American Bar Association (the lawyers!) and the Association of Corporate Counsel (more lawyers!), who have argued that the proposed rules impede on rules of professional conduct pertaining to the attorney-client privilege.

HEC Legislative Digest Updated After Adjournment Sine Die

The long days and late nights at the Capitol are over, and the 2013 Legislative Session has come to an end.

The Hawaii Employers Council (“HEC”) has an updated Legislative Digest for bills that were passed by the Legislature during the 2013 legislative session.  Fortunately for employers, only a few employment-related bills survived this legislative session.  A quick summary of the fate of employment bills from this year is as follows…

Bills that have already been signed into law by the Governor include:

  • Notice Period for UI Appeals Hearings
  • Pay Records and Pay Stubs

Bills that have been sent to the Governor for his approval (or veto) include:

  • Breastfeeding Break Time
  • Workers’ Compensation (“WC”) Medical Fee Schedule Study
  • Definition of “Small Employer” for Health Insurance

Bills that did not pass this year include:

  • Minimum Wage
  • Successor Employers and Employee Retention
  • Paycheck Withholdings for Restitution Cases
  • Organ Donor Leave
  • Social Media Password Privacy
  • Unemployment Insurance Contribution Rates Changes
  • Paid Sick and Safe Leave
  • Elimination of IMEs for WC Cases
  • Meal Breaks
  • Discrimination against Unemployed Individuals
  • Abusive Workplaces
  • GET Increase

In the next couple months, I will be giving several presentations on the 2013 legislative session, including HEC’s 2013 Legislative Update on June 21, 2013.  I will also be doing in-house presentations for several of HEC’s members and industry roundtable groups.  If you are able to join us at any of those presentations (and would like to find out what “OTBD” means), I hope to see you there.

To view the updated Legislative Digest, as well as an article highlighting several of the bills mentioned above, you can visit HEC’s website here:  HEC Offers Final Bill Summary for 2013 Session.

Hawaii One Of The Worst States For Businesses, Again

This morning, the Star-Advertiser reported that Hawaii has made yet another list of worst states for businesses.  This time, the list was compiled by the American Economic Development Institute (AEDI) and Pollina Corporate Real Estate, Inc.  In this list, Hawaii was ranked as the 10th worst state (41 out of 50) for doing business.  The Advertiser also noted that the AEDI study examined 32 factors over which “states have control, relative to becoming pro-business.”  (The AEDI website did not expound on what 32 factors were examined for this study.)

This unfavorable ranking for Hawaii is probably not a surprise for a lot of people.  After all, Hawaii has consistently ranked poorly on similar studies and lists.  For example, last year, ChiefExecutive.Net (and Chief Executive magazine) ranked Hawaii as the 10th worst state for doing business.  Similarly, also noted that Hawaii ranked at the bottom of the list in a study conducted by’s Small Business Survey. gave Hawaii a failing grade of “F” for doing business.

I realize this blog entry is different from the types of entries I usually write, but I wanted to highlight Hawaii’s poor rankings in “worst states for business” type studies in light of the fact that we are currently at the end of another legislative session.  This year, many of the anti-employer bills already died, but there is still some pending legislation that would have an adverse impact on businesses, such as bills dealing with (1) successor employers and (2) the minimum wage.  (For further discussion on pending legislation, please see this blog post here:  HEC Legislative Digest Updated.)

Therefore, this blog post is a call-to-action for businesses to remind their legislators that Hawaii has consistently ranked among the worst states for businesses, and that we cannot afford further legislation that would hamper the ability of businesses to operate in Hawaii.  When businesses cannot prosper, the economy is adversely affected.  Interestingly, an announcement by AEDI on their website noted that nine of the worst states all have high budget deficits for fiscal year 2013, and that Hawaii had a budget deficit of $500 million.

If you want to get in touch with your legislature about any issues pertaining to the 2013 legislative session, you can find their phone numbers and email addresses here:  Legislative Directory.

You can view the original article on the AEDI website here:  AEDI Ranks Hawaii 41 out of 50 For Doing Business.

NLRB Will Appeal Canning Decision To US Supreme Court

Just today, the NLRB announced that it will file a petition for certiorari for the Canning v. NLRB case, where the DC Circuit invalidated three appointments by President Obama to the NLRB.

The NLRB issued the following statement on its website:

The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid.  The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision.  The petition for certiorari is due on April 25, 2013.

Earlier this year, I wrote about the Canning decision and how the DC court ruled that the NLRB could not operate because it did not have a quorum of members.  In response, the NLRB stated that it would continue to operate.  You can read the original DC Circuit’s decision here:  Canning v. NLRB, and my blog post on the DC court’s decision here:  NLRB Cannot Operate.

You can view the NLRB’s office News Release on their website here: NLRB Canning News Release.