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Wage and Hour Law
FAQ: Hepatitis A and the Workplace

Hawaii is currently experiencing a major outbreak of Hepatitis A.  At last count, nearly 140 individuals in Hawaii have been infected with the Hepatitis A virus (“HAV”).   As a result, many Hawaii employers are left with a myriad of questions about the rights of employers and employees with regards to HAV in the workplace.

Many People Thinking of Questions

Examples of questions raised by employers regarding Hepatitis A include the following:

  • What is Hepatitis A?
  • How long is a person with Hepatitis A contagious?
  • Who should get tested for Hepatitis A?
  • Is there a vaccine that can prevent Hepatitis A infection?

In addition, workplace-specific questions have included the following:

  • Does the Department of Health (“DOH”) require employees in certain fields of work, such as food service or healthcare, to obtain Hepatitis A vaccinations prior to working?
  • How does a food service employer know if an employee has been found to have been infected with Hepatitis A?
  • How does a food service employer know which employees are a “contact” that needs to obtain a negative IgM test before resuming work?
  • Can an employer require employees to get vaccinated?  If so, can the employer limit this requirement only to certain job classifications?
  • Is the employer required to pay for Hepatitis A vaccinations?
  • Is time spent getting a Hepatitis A vaccination compensable under wage and hour laws?
  • Is there anything else an employer can do to help prevent the spread of Hepatitis A?
  • If an employee informs his employer that he has tested positive for Hepatitis A, what if anything can the employer tell its employees?
  • If an employee informs his employer that he has consumed food from a business that has an infected employee, what can the employer do?
  • Where can I read more information about Hepatitis A?

In response to the multitude of questions that employers have been asking the past few weeks, the Hawaii Employers Council (“HEC”) has prepared a FAQ on HAV and the workplace.  The FAQ can be accessed on HEC’s website here:  HEC Issues FAQ for Hepatitis A and Workplace Issues.

For any questions that have not been answered in the FAQ, please feel free to contact me

 
Brace Yourselves: The DOL’s New Overtime Rules Are Here

On Tuesday, May 17, 2016, news broke that the U.S. Department of Labor (“DOL”) will be publicly issuing their final rules regarding overtime exemptions under the Fair Labor Standards Act on Wednesday, May 18, 2016.  The final rule will raise the salary threshold exemption from $23,660 to $47,476, which is more than double the current amount.  While the salary threshold is not quite the $50,440 that was initially proposed by the DOL, it is still certainly a very high number that will negatively impact many small businesses, non-profit organizations, and other companies that simply cannot afford to raise salaries to $47k for all of their exempt employees.

The final rule will also trigger automatic increases to the salary threshold every three years, beginning on January 1, 2020.  To put it lightly, this escalator clause could prove to be a real back breaker for many companies.  Under the DOL’s estimation, this would increase the salary threshold to $51,168 in 2020.  It is also not clear whether the DOL has fully thought about the implications of this escalator clause, but that is a different discussion for another day (see below).

In addition, the final rule also raises the salary threshold that is used for the “highly compensated employees” exemption from $100,000 to $134,004.   With the escalator clause, this number is estimated by the DOL to be $147,524 in 2020.

Finally, the new rule also provides that non-discretionary bonuses and incentive payments (including commissions) can be used to satisfy up to 10% of the new standard salary level, as long as they are paid on a quarterly basis (or sooner).

The new rules will take effect on December 1, 2016.  This gives employers just under 200 days to start preparing for these major rule changes.

Certainly, this is BIG NEWS!  And bad news, too.

In order to assist employers with understanding and preparing for the DOL’s final overtime rule, the Hawaii Employers Council (“HEC”) will be conducting a seminar/webinar next Wednesday from 8:30 to 10:30 am.  This program will contain three main components:  (1) a discussion of the current and new rule; (2) actions plans employers can implement in response to the new rule; and (3) how to communicate with employees about changes that are (or will be) implemented by the employer.  I will be presenting the first part of the program.  

Here are some links for further information:

Oh, one last thing – I should also note that the final rules do not make any changes to the duties tests for the Executive, Administrative and Professional exemptions.  Employers can probably view that as a good thing, although I do not think such changes were likely because the DOL did not include them in its proposed rule.  Therefore, implementing such changes would have probably been in violation of the Administrative Procedures Act anyway.

 
Let’s Talk About Drugs and Money, But Not in the Same Sentence (Quotes in the PBN)

Just recently, the Pacific Business News published a couple short articles where they included my thoughts about what we can expect during the upcoming legislative session.  The first article talked about possible medical marijuana legislation and the second article discussed Hawaii wage and hour law.

With regards to medical marijuana, I mentioned that we can expect to see bills that propose to expand the rights of medical marijuana patients in two ways.  First, medical marijuana is currently available only to individuals who have a debilitating condition, such as cancer, glaucoma, severe pain, or PTSD.  With the growing social acceptance of medical marijuana, we will likely see legislation opening up marijuana to conditions such as anxiety, stress, insomnia, and arthritis.  Second, we might also see measures that provide job protection for users of medical marijuana – meaning that an employer would be prohibited from firing an employee because the employee uses medical marijuana.

With regards to wage and hour law, we might see an increase in the salary threshold for Hawaii wage and hour exemption, which is currently set at $2,000 per month (in other words, an employee who is guaranteed a salary of $2,000 per month is exempt from Hawaii minimum wage and OT requirements, although they still need to comply with federal law).  Such legislation is especially likely in light of the DOL’s proposed increases to the salary basis for the FLSA’s exemptions.

You can read a copy of the articles here:  Medical Marijuana and Wage and Hour Exemption.

 
Hawaii Minimum Wage Now $8.50 Per Hour

Happy New Years everybody and welcome back to work!  This is just a quick reminder that the Hawaii minimum wage increased by 75 cents on January 1, 2016, which makes the new minimum wage in Hawaii $8.50 per hour.  The tip credit is still just 75 cents per hour (assuming the tipped employee earns at least $7.00 per hour in tipped income and wages).

Minimum+wage+increase.mgn (1)

In addition, the minimum wage is also scheduled to increase twice more in the next two years.  Beginning January 1, 2017, the minimum wage will be $9.25 per hour and on January 1, 2018 it will increase to $10.10 per hour.

For further discussion on the Hawaii minimum wage or tip credit, you can read a helpful guide issued by the Hawaii Department of Labor and Industrial Relations back in 2014:  DLIR Wage and Hour Notice.

 
Quick Reminder: Minimum Wage Just Went Up To $7.75

Hi everybody, the minimum wage just went up!  Yeah, yeah, I get it…old news…you all already know about minimum wage increase. Well, I realize that it’s been discussed ad nauseum, but just in case there are a handful of people out there who forgot to make the requisite changes with their payroll, here’s a quick reminder that the minimum wage has gone up (and will continue to rise) according to the following schedule:

  • January 1, 2015 – $7.75
  • January 1, 2016 – $8.50
  • January 1, 2017 – $9.25
  • January 1, 2018 – $10.10

In addition to the higher minimum wage, there are a couple other things you should know.  First, the tip credit also increased to $0.50 an hour on January 1, 2015 and will tick up to $0.75 an hour on January 1, 2016, provided that the employee earns at least $7.00 above the minimum wage in tipped income and wages.  What does this mean?  Basically, in 2015, employees must make at least 7.50 an hour in tips to qualify for the $0.50 tip credit, which means that employers just lost the $0.25 tip credit they used to have for employees who earn less than $7.50 an hour in tips.  In other words, for employees in low tipped categories who might make just $5-6 an hour in tips, there is no longer a tip credit.

Second, in July 2014, the state DLIR issued a new Wage and Hour that discussed the new minimum wage amounts.  You can get a copy of the new poster here:  July 2014 Wage and Hour Poster.

You can also view the state’s tip credit and minimum wage guide here:  Minimum Wage and Tip Credits.