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Sexual Harassment
2019 Legislative Update after Second Crossover

The Hawaii Employers Council has just published its latest updates on what types of new employment laws may be passed during the 2019 legislative session.  Some of the areas of law that maybe impacted include:

  • Minimum Wage
  • Equal Pay and Pay Disclosures
  • Sexual Harassment and Confidentiality
  • Social Media Privacy
  • Medical Marijuana Non-Discrimination
  • Employment Discrimination
  • Hawaii Family Leave Law for Grandchildren
  • Workers Compensation

The Legislative Digest is available to the public and can be accessed here:  Legislative Digest for Second Crossover. 

A more detailed and comprehensive article discussing several of the key measures that are being considered is available to HEC members only and can be accessed here:  Highlights of Employment Bills after Second Crossover.

 
2018 Legislative Proposals

The 2018 legislative session is well underway.This year, lawmakers introduced dozens of bills that could impact many different areas of labor and employment law.  For instance, some of these proposals could revise Hawaii law on the following topics:

  • Notice of Work Schedules
  • Paid Sick Leave
  • Hiring Practices
  • Employment Discrimination
  • Paid Family and Medical Leave
  • Pay Secrecy and Transparency
  • Social Media Privacy
  • Workplace TRO’s
  • Independent Contractors
  • Wage Discrimination
  • Minimum Wage
  • Workers Compensation
  • Temporary Disability Insurance

Many of these measures have been heard and passed out by their assigned committees, whereas others may end up on the cutting room floor this week.  The Hawaii Employers Council (“HEC”) will be closely monitoring these bills during the 2018 legislative session.

You can view a listing of bills that HEC will be monitoring here:  2018 Employment Bills Introduced.   An updated list of bills will be issued following the First Crossover deadline.

 
EEOC Fact Sheet on Transgender Employee Bathroom Access

In what appears to be a definitive answer to the question of whether employers must allow a transgender employee to use a restroom that is reserved for the sex with which the employee identifies, the EEOC has issued a fact sheet addressing bathroom access rights for transgender employees.

In its fact sheet, the EEOC cited to federal cases which found that denying an individual equal access to a common restroom corresponding to the individual’s gender identity is sex discrimination.  Similarly, an employer also cannot require a transgender employee to use a single-use restroom (or presumably, a unisex restroom, if a single sex restroom is available).  The EEOC has defined the term “transgender” as people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate).

Of course, this is just the EEOC’s position on the matter, and there is no guarantee federal courts will adopt the same conclusion.  Nevertheless, the EEOC’s interpretation of the law is usually given deference by the courts, so it’s a safe bet that courts will also require employers to allow transgender employees to use the restroom that corresponds to the employee’s gender identity.  In Hawaii, there is no law that directly addresses this question.  However, based on a lawsuit that was filed against the state a couple of years ago, Hawaii employers are advised to allow transgender employees to use the bathroom of their corresponding gender identity.

The EEOC’s fact sheet is in line with a fact sheet issued by the DOL’s Occupational Safety and Health Administration (“OSHA”) in 2015.

 
How to Respond to an EEOC Charge

For the first time ever, the Equal Employment Opportunity Commission (“EEOC”) has issued a memorandum on “how Respondents can draft effective position statements.”

guidance

Oftentimes, employers who receive a charge of discrimination from the EEOC will hire an attorney to draft a position statement in response to the charge.  The attorney will normally work with the employer to gather a set of facts to be used in response to the allegations contained in the charge of discrimination, and then prepare a position statement that summarizes those facts (oftentimes refuting the allegations contained in the charge) and discusses those facts in light of the law.  The position statement should be carefully drafted to ensure that all allegations raised in a charge of discrimination are addressed, and that the employer provides a fact-based response instead of one that simply raises conclusive statements such as “we didn’t discriminate.”

Regardless of whether you hire an attorney or prepare the position statement yourself, it is strongly advised to review the EEOC’s memorandum on what constitutes an effective position statement.  The EEOC’s memorandum addresses the following issues:

  • The importance of fact-based position statements
  • Examples of supporting documentary evidence
  • Segregating confidential information
  • Providing a response by the due date
  • Requesting an extension
  • Uploading the Position Statement into the EEOC’s portal

The EEOC’s memorandum can be viewed here:  EEOC on Effective Position Statements

 
‘Tis The Season

Happy Holidays, everybody!

As we are all aware, holiday parties are an excellent way for employers to boost employee morale, build camaraderie, and celebrate a successful year of business.  At the same time, however, employers should be cautious about the pitfalls that throwing a holiday party can bring.

Alcohol Issues

Employers should take caution when serving alcohol at a company-sponsored holiday party.  First and foremost, employers should make sure that somebody is checking the ID’s of anybody who consumes alcohol.  The purpose of checking ID’s is to avoid serving alcohol to a minor.

Second, employers should also make sure that any individual who is visibly intoxicated is not served any more alcohol.  The purpose of this is to avoid “dramshop” type liability for anybody who drinks at a company-sponsored party and then attempts to drive afterward.  It is also a good idea to provide several non-alcoholic drink options, so guests don’t feel like alcoholic drinks are their only option.  Some employers also limit the amount of drinks their employees can consume by the use of drink coupons.

Third, employers should also provide guests with alternative forms of transportation if they are unable to drive, such as cab rides or designated drivers.

Fourth, in order to avoid some of the problems mentioned above, employers should remind employees (and their guests) to drink responsibly.

Finally, employers should also review their insurance policies to determine if they can serve alcohol at a company-sponsored party in the first place.

Sexual Harassment Issues

Oftentimes, when employees attend company-sponsored parties, they forget they are still in a work-related setting.  Once you add some alcohol into the mix, there is a potential that employees may engage in conduct that would violate a company’s anti-sexual harassment policy.  Therefore, employers should make sure to remind employees that the party is work-related, and that all workplace rules still apply at the party.

For example, while it may be festive to have somebody dressed in a Santa Claus suit during the event, employees should not be “sitting on Santa’s lap” because such behavior could be deemed inappropriate under Hawaii and Federal sexual harassment laws.  As another example, employees should be reminded to dress appropriately, so that they don’t dress in a manner that could be deemed inappropriate for a work-related event.

Finally, employers are warned to NOT hang a mistletoe at the party.  See, Exhibit A:

Other Issues

Employees should be reminded that the holiday parties are completely voluntary, and therefore, they are not required to attend the event.

Finally, employers should weigh the pros and cons of having a holiday party on a weekday versus the weekend.  If the party is on a weekday, the employees might not drink as much alcohol or get too rowdy, which alleviates some of the concerns above.  On the other hand, if employees do drink too much alcohol or stay up late, they might be unproductive at work the next day.  If the party is on a weekend, employers do not have to worry about employees’ loss of productivity on the day after the party, but there is a high likelihood the employees will consume more alcohol than they would on a weekday.