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HEC Legislative Digest Updated After Adjournment Sine Die

The long days and late nights at the Capitol are over, and the 2013 Legislative Session has come to an end.

The Hawaii Employers Council (“HEC”) has an updated Legislative Digest for bills that were passed by the Legislature during the 2013 legislative session.  Fortunately for employers, only a few employment-related bills survived this legislative session.  A quick summary of the fate of employment bills from this year is as follows…

Bills that have already been signed into law by the Governor include:

  • Notice Period for UI Appeals Hearings
  • Pay Records and Pay Stubs

Bills that have been sent to the Governor for his approval (or veto) include:

  • Breastfeeding Break Time
  • Workers’ Compensation (“WC”) Medical Fee Schedule Study
  • Definition of “Small Employer” for Health Insurance

Bills that did not pass this year include:

  • Minimum Wage
  • Successor Employers and Employee Retention
  • Paycheck Withholdings for Restitution Cases
  • Organ Donor Leave
  • Social Media Password Privacy
  • Unemployment Insurance Contribution Rates Changes
  • Paid Sick and Safe Leave
  • Elimination of IMEs for WC Cases
  • Meal Breaks
  • Discrimination against Unemployed Individuals
  • Abusive Workplaces
  • GET Increase

In the next couple months, I will be giving several presentations on the 2013 legislative session, including HEC’s 2013 Legislative Update on June 21, 2013.  I will also be doing in-house presentations for several of HEC’s members and industry roundtable groups.  If you are able to join us at any of those presentations (and would like to find out what “OTBD” means), I hope to see you there.

To view the updated Legislative Digest, as well as an article highlighting several of the bills mentioned above, you can visit HEC’s website here:  HEC Offers Final Bill Summary for 2013 Session.

HEC Legislative Digest Updated After First Crossover

The Hawaii Employers Council has an updated Legislative Digest, following First Crossover.  Some of the bills that are still alive address the following areas of law:

  • Successor Employers and Employee Retention
  • Social Media Privacy for Employees and Job Applicants
  • Breastfeeding for Employees
  • Paid Leave for Organ, Bone Marrow, or Stem Cell Donation
  • Minimum Wage Increases
  • Workers’ Compensation Medical Fee Schedule Increases

If you would like to view the Legislative Digest, you can view a copy here:  HEC Legislative Digest.

HEC Legislative Digest Now Available

Each state Legislative session, the Hawaii Employers Council prepares a Legislative Digest summarizing bills that may be of interest to Hawaii employers.  This year, the bills covered include those in the following categories:

  • Employment Practices and Employment Rights
  • Hawaii Family Leave Law
  • Wage and Hour – Minimum Wage
  • Wage and Hour – Miscellaneous
  • Unemployment Insurance
  • Workers’ Compensation
  • Health and Insurance
  • Public Employees
  • Public Contracts
  • Government Agencies
  • General Excise Tax; Tax Credits
  • Miscellaneous

If you would like to view the Legislative Digest, you can view a copy here:  HEC Legislative Digest.

Court Addresses “Exclusive Remedy” Provision of Workers’ Compensation Law

In Yang v. Abercrombie & Fitch Stores, et. al. (April 30, 2012), the Hawaii Intermediate Court of Appeals (“ICA”) recently held that Section 386-5 of the Hawaii Revised Statutes (“HRS”) barred a plaintiff’s claims against her employer for personal injuries (i.e. stress) she allegedly suffered arising out of and in the course of her employment, which were allegedly caused by the willful acts of her co-employees acting in the course and scope of their employment.

In that case, the plaintiff – a former Abercrombie and Fitch (“A&F”) employee – was interrogated at work by security personnel about money that was missing from a wallet that a patron had lost in the store.  After the interrogation, the plaintiff was escorted out of the AF&F store. She subsequently filed a claim for, and received, workers’ compensation benefits due to “stress” she suffered as a result of the interrogation and related incidents.

The plaintiff also filed a lawsuit against A&F and the security personnel, alleging claims such as false imprisonment, defamation and invasion of privacy, among others.  A&F sought to dismiss the suit on the grounds that workers’ compensation benefits were the plaintiff’s exclusive remedy for workplace stress.  The circuit court denied A&F’s motion, and A&F filed an appeal.

On appeal, the ICA reversed the decision of the circuit court, and ruled that HRS § 386-5 barred the plaintiff’s lawsuit with regards to injuries she suffered (a) because of her employment (b) that were caused by the willful acts of the security personnel acting in the court and scope of their employment.  The ICA also made sure to clarify, however, that HRS § 386-5 did not bar all intentional torts.  Rather, the torts must be committed “because of the employee’s employment.”

Finally, the ICA noted that that HRS § 386-5 did not bar the plaintiff’s claims against the security personnel individually.

While the Yang decision did not create any new law, it certainly clarified that workers’ compensation benefits generally serve as the exclusive remedy for injuries sustained in the course of employment.  The ICA’s decision also clarified that intentional torts that are committed because of on an individual’s employment are covered by workers’ compensation (such as in the Yang instance), whereas intentional torts that are not committed because of an individual’s employment are not.

You can read a copy of the court’s decision here.  You can also view the exclusive remedy provision under HRS § 386-5 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.