On New Years Eve, U.S. District Court Judge Susan Oki Mollway issued an order ruling that Hawaii’s “sick leave law” – as passed during the 2011 state legislative session – was unlawful.

As background, in 2011, the State of Hawaii passed the “sick leave discrimination” law, which would prevent unionized employers with 100 or more employees from discriminating against an employee for using accrued and available sick leave.  Specifically, Act 118 from 2011 amended Section 378-32  to provide as follows:

(b)  It shall be unlawful for an employer or a labor organization to bar or discharge from employment, withhold pay from, or demote an employee because the employee uses accrued and available sick leave; provided that:

(1)  After an employee uses three or more consecutive days of sick leave, an employer or labor organization may require the employee to provide written verification from a physician indicating that the employee was ill when the sick leave was used;

(2)  This subsection shall apply only to employers who:

(A)  Have a collective bargaining agreement with their employees; and

(B)  Employ one hundred or more employees;

and

(3)  Nothing in this subsection shall be construed to supersede any provision of any collective bargaining agreement or employment benefits program or plan that provides greater employee benefits or rights.”

In a lawsuit entitled Hawaii Pacific Health, et. al. v Dwight Takamine, DLIR, several Hawaii employers sued the Hawaii Director of Labor to challenge the validity of this new law.  Their attorneys argued that that it this new state law (1) was preempted by Federal law and (2) violated the equal protection rights of unionized employers.  Judge Mollway agreed with both arguments, and struck down the law.

Specifically, the judge noted that the sick leave discrimination law was attempting to regulate conduct that should be “left to the control of economic forces.”  In other words, this was the type of issue that should be left to collective bargaining between a union and employer.  Additionally, the court also ruled that the law treated unionized employers less favorably than non-unionized employers.  Therefore, the law violated the equal protection rights of unionized employers.

The court set a hearing for April 15, 2013 to determine whether she would invalidate the entire law, or just the portion that referred to unionized employers.  (She also indicated an inclination, however, to strike down the entire law.)

You can read Judge Mollways decision here:  HPH v. Takamine.  You can view the original bill that led to the sick leave discrimination law here:  Sick Leave Bill.