Blog Archives

New DOL Rules Regarding Exempt Employees Expected in Late 2016

Earlier this year, the United States Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking which would more than double the salary basis requirement under the Fair Labor Standards Act (“FLSA”).


Currently, an employee can be exempt from the FLSA’s requirements if he (1) performs certain duties (e.g. executive, administrative, professional) and (2) is paid a guaranteed salary of $455 per week (or $23,660 a year).  Under the DOL’s proposed rules, that salary guarantee would increase to around $970 per week (or $50,440 a year), which means that any executive, administrative, or professional employee who is paid under $50,440 a year would no longer be exempt.  In addition, the DOL has also proposed a couple of alternative escalator clauses, which would automatically update the salary threshold amount each year.

Ever since the DOL issued its proposed rules, one of the questions that has been on virtually every employers’ minds is “When are the final rules going to be issued?”   Many employers are trying to set their operating budgets for 2016, and the uncertainty surrounding the timing of the new rules and the new salary basis amount has been a cause of frustration.

At a recent American Bar Association conference, Solicitor of Labor Patricia Smith reportedly stated that the Final Rules are not expected before “late 2016.”  While it is not clear how soon the rules would take effect after they are issued, the federal rulemaking process requires a notice period of at least 30 days, or 60 days for any  “significant” or “major” rules (and to me, doubling the salary basis requirement should certainly be considered significant and major).

Can You Ask Applicants for a Headshot?

One of the issues that has come up quite often in the past few years is whether employers should use social media sites (such as Facebook, Instagram, and LinkedIn) to look up information about job candidates.  HR professionals and attorneys actually disagree on the answer to this question:  the conservative approach recommends that employers avoid using social media (because, hey, even the EEOC says so!) while the risk-takers think it’s okay (because, well, A LOT of companies are already doing it anyway).

d8b00134f0b2def18ee5101b7aa698e7One of the risks with researching a job candidate on social media is you can learn things about the job candidate that you are not allowed to ask about during the hiring process.  For example, one of the first items you will see when visiting an individuals Facebook or LinkedIn page is their profile picture – and that picture can reveal a lot about the individual, such as their sex, race and age.  In addition, social media profiles often contain information about an individuals marital status, religion, sexual preference, etc.  The list goes on and on.  And, with the recent Hawaii Supreme Court decision in Adams v. CDM Media, it just became much easier for a rejected applicant to prevail on a failure to hire claim and more difficult for an employer to defend against one.  So, for me, because there is currently no need to look up an applicant’s Facebook page, especially if you already have a vetting process that works well, I usually recommend that employers do not research job applicants via social media.

A related issue that has come up recently is whether an employer can ask job applicants to submit a headshot with their job application.  In fact, I was recently asked this very question by a reporter from the Pacific Business News, and so I shared my thoughts.  In a nutshell, I explained that while it was not per se illegal – at least not in Hawaii – to ask an applicant for a picture or headshot, it is a dangerous practice to do so for many of the same reasons that I advise employers against researching a job applicant’s social media account (unless the individual is applying to be a model, spokesperson, or other job position where their looks would constitute a BFOQ).  I also specified that a picture can reveal many characteristics about an individual, such as race, sex, age, and ethnicity that an employer cannot inquire about through the job application or other parts of the hiring process.  In addition, in the section of their website discussing “Prohibited Employment Policies/Practices” the EEOC has stated that “employers should not ask for a photograph of an applicant.  If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.”

An online version of the PBN article can be viewed here:  PBN Article on Sky Waikiki Hiring Process.

Don’t Put This On Your Resume

For some reason last week, my Facebook feed was full of people complaining about the fact that it was Monday and they had to go back to work.  It was a little unusual to see so many posts complaining about Monday, and I almost thought that there was an internet movement that I wasn’t aware of where everybody was supposed to say how much they hated Mondays.  Poor Mondays, they never did anything wrong…


Today (also a Monday), strangely enough, I did not see a single post from anybody in my Facebook feed complaining about Monday. But then again, I was only on Facebook for about 5 minutes during my lunch break.  Nevertheless, because a large segment of my readership includes HR professionals, I thought I’d share a funny HR article entitled “31 of the Stupidest Things Ever Put on a Resume” to bring some lightheartedness to our Monday.  The article comes from the HR Morning website, and compiles a list of user comments from Reddit in response to a thread asking other HR professionals to share “the most ridiculous things [they've] seen on a resume.”  Some gems from the article include the following resume items:

  • “None of my references really like me, so please don’t believe what they say.”
  • “Grate communication and atention to details”
  • “Applied to Harvard” (under the education profile)
  • “2.0 GPA”
  • “Italian Cuisine Logistics Engineer” (he was a pizza guy)

You can see the entire list on the’s website here:  31 Things…  Happy Monday, everybody!

Linda Chu Takayama Confirmed as DLIR Director

Linda Chu Takayama has been confirmed by the Hawaii State Senate to serve as the newest Director of the Department of Labor and Industrial Relations (“DLIR”).  She was appointed by Governor Ige to lead the DLIR after the Governor’s earlier appointment of Elizabeth Kim ran into some technical difficulties because Ms. Kim had not lived in Hawaii for at least one year immediately preceding her appointment.

Ms. Takayama’s appointment sailed right through the Senate confirmation process and she did not receive any “no” votes in either the Advise and Consent hearing held before the Senate commitee on Judiciary and Labor or during the full floor vote of the Senate.  Prior to serving as the DLIR Director, Ms. Takayama was the executive director of the Honolulu Mayor’s Office of Economic Development.  She also previously served as the Deputy Director of the State Department of Commerce and Consumer Affairs and as Insurance Commissioner.  You can read more about Ms. Takayama in the Governor’s press release here:  Takayama Press Release.

New NLRB Election Rules Take Effect

This is just a reminder that the NLRB’s new rules regarding representation elections have taken effect today, April 14, 2015.


These new set of rules have been called “Ambush Election Rules” or “Quickie Election Rules” by many because they shorten the amount of time between when a petition for an election is filed and when the election takes place by removing or expediting many of the procedures that took place under the old rules.  In effect, this shorter time period will reduce the amount of time employers will have to talk to their employees about what it means to join a union or how being represented by a union will affect their workplace.

Some components of the Final Rule include the following:

  • the pre-election hearing that determines the logistics and scope of the election must be held within 8-days of the filing of the election petition;
  • less issues are allowed to be addressed during the pre-election hearing;
  • post-hearing briefs which are used to present arguments to the hearing office will no longer be permitted, unless the Regional Director allows it;
  • no “automatic stay” (or delay of the election) upon the filing an appeal of the hearing officer’s decision; and
  • hearings on any legal challenges that a party may file regarding the conduct of the election must be held within 21 days of the date of the election.

In addition, the Final Rule also imposes new requirements on employers who are facing a union organizing campaign, such as the following:

  • posting and distributing a notice of the union petition and possible election to all employees;
  • filing a detailed and written position statement one day prior to the pre-election hearing identifying the issues they wish to litigate (and any arguments not posited in the position statement are deemed waived);
  • providing the union with a more detailed “Excelsior List” within 2 days (instead of 7 days) to now also include email and phone numbers, as well as information about the employees’ job shifts, job classifications and work locations;
  • delivering an electronic copy of the Notice of Election to all employees.

On April 6, 2015, the NLRB’s General Counsel issued a Guidance Memorandum on the new representation election rules.  This 30+ page document provides an explanation of how the General Counsel will interpret the changes to the rule and provides guidance to NLRB regional offices, employers, labor consultants, and attorneys on how to work with the new rules.  A copy of the Guidance Memorandum can be viewed here:  GC Memo 15-06.

The majority of the Final Rule is similar to what the NLRB attempted to implement in 2011, with some revisions.  (The 2011 version of the new rules was invalidated by a Federal Court because the Board did not have a quorum of members when it tried to adopt those rules.  See Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).  The Board had only two members at the time it adopted the 2011 rules.)