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Unemployment
The Newest Protected Class: The Unemployed?

President Obama’s proposed American Jobs Act has a provision that would make it unlawful for employers to (amongst other things) refuse to hire an individual “based on that individual’s status as unemployed.”  In the words of Seth and Amy of SNL fame:  Really, Mr. President?  Really?

Specifically, the proposed law has three major prohibitions regarding the unemployed.  First, employers cannot publish an advertisement stating that unemployed individuals would not qualify or would not be considered for a job opening.  Second, employers cannot fail or refuse to hire for employment, or fail or refuse to hire, an individual because of the individual’s status as unemployed.  Third, employers cannot direct or request that an employment agency take an individual’s status as unemployed into account to disqualify an applicant for a job position.

Based on this language, it appears the focus of the proposed law is to prevent discrimination because of an individual’s status as unemployed.

That being said, however, the law does allow employers to consider the reason an individual is unemployed.  Specifically, the proposed law would not preclude an employer or employment agency from considering an individual’s employment history or the reasons underlying an individual’s status as unemployed, in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual.

Like most Americans, I too am in favor of lowering the unemployment rate and creating jobs for as many people as possible.  Yet, I cannot support this law because it would just create too many opportunities for unemployed individuals to file frivolous lawsuits against any employer that does not give them a job.  So, let’s just hope this proposed law doesn’t get enacted by Congress.

You can read a copy of the proposed law here.

 
New Employment Laws in Hawaii – 2011

The 2011 Legislative session was certainly not what I would call “employer-friendly,” to put it lightly.  This was the first time in over 8 years that both the legislature and governor’s office were controlled by the Democratic party.  Therefore, it was not surprising to see that many laws passed this year favored the rights of employees and labor unions, over the rights of employers.

For example, there were several changes to Hawaii’s anti-discrimination laws, which now make it unlawful for employers to discriminate against employees (a) for taking sick leave, (b) for their gender identity or expression, or (c) for their status as a victim of sexual or domestic violence.  In addition, another significant change to the law is that it now constitutes a criminal offense for an employer to not pay wages to their employees.

With the exception of the “domestic violence victim discrimination law,” all of these laws have already become effective.  Employers are advised to update their policies and handbooks accordingly.  These laws, and some others, are as follows:

Sick Leave Discrimination (Act 118, SB 1076) – This new law amends HRS 378-32, and prohibits employers who have (a) 100 or more employees and (b) a collective bargaining agreement with those employees, from barring, discharging from employment, withholding pay, or demoting an employee who uses accrued and available sick leave.

You can read my thoughts on this new law in a previous blog post here, and a copy of SB 1076 here.

Gender Identity Discrimination (Act 34, HB 546) – This new law amends HRS 378-2, and prohibits employers from discriminating against employees on the basis of “gender identity or expression.”  The way the law is written, discrimination based on “gender identity or expression” is considered a form of sex discrimination.

The legislature defined “gender identity or expression as “a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression, is different from that traditionally associated with the person’s sex at birth.”

You can read a copy of HB 546 here.

Domestic Violence Victim Discrimination (Act 206, SB 229) – This new law also amends HRS 378-2 and prohibits employers from discriminating against employees or applicants who are the victims of sexual or domestic violence, if the victim notifies the employer of such status or the employer has actual knowledge of such status.

This new law also re-titles Hawaii’s “Victim Leave” law to “Victim Protections” and requires employers to make “reasonable accommodations in the workplace” for victims of domestic violence, such as changing the contact information of the employee, screening phone calls for the employee, restructuring the job functions of the employee, changing the work location of the employee, installing locks and other security devices, and allowing the employee to work flexible hours, unless providing such an accommodation would cause “undue hardship” on the work operations of the employer.

You can read a copy of SB 229 here.  (Note:  this law takes effect January 1, 2012)

Labor Trafficking and Nonpayment of Wages (Act 146, HB 141) – This new law provides new and specific penalties for labor trafficking offenses.

The part of this new that will have the most significant impact on most employers, however, is that it is now makes it a criminal offense not to pay wages owed to an employee.  Specifically, the new law states that a person commits the offense of “nonpayment of wages” if the person, acting in the capacity as an employer, intentionally or knowingly or with intent to defraud fails or refuses to pay wages to an employee. There is an exception to this rule, where an employer is required to make deductions from an employees wages under federal or state law, or court order.

A failure to pay wages of $2,000 or more constitutes a Class C felony.  In addition, it will also be a Class C felony if a person convicted of nonpayment of wages falsely denies the amount or validity of the wages owed.  A failure to pay wages of under $2,000 constitutes a Misdemeanor.  Finally, the law provides that each missed pay period will constitute a separate offense.

You can read a copy of HB 141 here.

Workers’ Compensation for Partnerships, LLC’s, etc. (Act 196, HB 519) – This new law provides that the following individuals are exempt from workers’ compensation coverage:  (a) a partner of a partnership, (b) a partner of an LLP who has 50% or more interest in the LLP, (c) a member of an LLC who has 50% or more interest in the LLC, and (d) sole proprietors.  You can read a copy of HB 519 here.

Partial Unemployment (Act 165, SB 1088) – This new law repealed the sunset provisions on partial unemployment benefits and removed the prior 8 week limitation on partial unemployment status.  In addition, this new law also established conditions for which an individual who has established eligibility based on full-time employment may be found to have good cause for voluntarily separating from subsequent part-time employment.  You can read a copy of SB 1088 here.

Increased HOSH Penalties (Act 123, SB 1040) – This new law imposes a 10% increase on monetary penalties for violations of the Hawaii Occupational Safety and Health Law.  You can read a copy of SB 104 here.

 
Governor Lingle Vetoes Sick Leave and Unemployment Bills

Earlier today, Governor Linda Lingle vetoed two bills that would have affected Hawaii employers in a negative way.

First, the Governor vetoed SB 2883, otherwise known as the sick leave bill.  If enacted into law, the bill would have made it an unlawful practice for an employer to bar or discharge from employment, withhold pay from, or demote an employee because the employee uses accrued and available sick leave.  The law would have applied to employers who had a collective bargaining agreement and had 100 or more employees.  This bill had serious legal flaws, including being preempted by the National Labor Relations Act and would have been an unlawful impingement on employer’s collective bargaining rights.  In addition, it could have potentially led employers to do away with sick leave policies, which would have been an unintended but adverse effect on employees.

Second, the Governor vetoed SB 2324, which addressed unemployment benefits.  If enacted into law, the bill would have allowed an individual who was a part-time worker, but quit his or her job without a valid reason, or was terminated for cause, to still receive unemployment benefits.  This bill would have clearly been inapposite to the purpose and intent of Hawaii’s current unemployment laws.  Additionally, it would have depleted the State of Hawaii’s unemployment insurance funds, because anybody would then be eligible to receive unemployment benefits, even when their employment was terminated for cause.

Both vetoes are good news for Hawaii employers, and were good vetoes based on sound legal and practical reasoning.

 
Senate Passes Unemployment Extension; Awaiting House Vote

By a vote of  59-39, the United States Senate has passed legislation extending unemployment insurance benefits.  The measure will now go to the House of Representative for a vote tomorrow.  The House is expected to pass the measure, and President Obama is also expected to sign the measure into law.

 
Impact Of Unemployment Benefits Extensions For Hawaii

Recently, a lot of people have been asking me about the current status of the federal Emergency Unemployment Compensation (“EUC”) program.  The EUC originally started in 2008, and provided up to 13 weeks of federally funded EUC benefits to unemployed individuals who had exhausted their state unemployment benefits.  Since its inception, the EUC has been extended several times, and additional weeks of EUC have been provided.

In Hawaii, unemployed individuals could have received up to 47 weeks of EUC benefits, in addition to their state unemployment benefits (for a grand total of 99 weeks).  There are limitations, however, on who can receive such EUC benefits.  Most importantly, anybody who files a current claim for unemployment will not qualify for EUC benefits, unless the program is extended again.

As a bit of background, the EUC benefits were released in “tiers.”  Tier I provided for 20 weeks of EUC benefits, Tier II provided for 14 weeks of EUC benefits, and Tier III provided for 13 weeks of EUC benefits.  To have qualified for Tier I benefits, the unemployed individual must have received and exhausted state unemployment benefits back in 2008.  To qualify for Tier II benefits, the individual must have received and exhausted Tier I benefits on or before April 5, 2010.  To qualify for Tier III benefits, the individual must have exhausted Tier II benefits on or before April 5, 2010.

For those individuals who are currently receiving EUC benefits, they may continue to do so – within their current Tier level – until September 4, 2010.  They will not, however, be able to move up to the next Tier level.  After September 4, 2010, all EUC benefits will be cut off, unless the benefits are extended again.