Blog Archives

National Labor Relations Board
Kent Hirozawa at the HEC Annual Luncheon

The guest speaker for the HEC Annual Luncheon this year was Kent Hirozawa, current member of the National Labor Relations Board.  It was quite an honor to have Mr. Hirozawa give a presentation during the luncheon.  He shared some of his insights on current issues the Board is facing, including cases dealing with the interplay between employees’ Section 7 rights and company policies.  He also urged the audience to take take a close look at GC Memorandum 15-04, which provides a detailed analysis of how the NLRB’s General Counsel determines whether a work rule violates Section 7.

In addition, Mr. Hirozawa also spent some time discussing the impact the new quickie election rules have had on the timing of representation elections.  He presented the following figures, which are based on the time period from April through October of 2014 and 2015 (the new rules took effect on April 14, 2015).  As seen below, representation elections now occur about two weeks earlier than they did under the old rules.  Based on these figures, the new rules have clearly earned the moniker “quickie election rules.”

Median number of days between filing of petition and representation hearing:

  • 2014 – 13 days
  • 2015 – 10 days

Median number of days between the filing of petition and all elections:

  • 2014 – 38 days
  • 2015 – 24 days

Median number of days between filing of petition and stipulated elections:

  • 2014 – 38 days
  • 2014 – 23 days

Median number of days between filing of petition and directed elections:

  • 2014 – 68 days
  • 2015 – 34 days

Amount of blocked petitions based on filing of unfair labor practice charges:

  • 2014 – 119
  • 2015 – 64

The stipulation rate (% of cases where parties agreed to a stipulated election):

  • 2014 – 89%
  • 2015 – 94%
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
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.