1. Disclose his or her username and password for a social media account;
2. Add an employee, supervisor, or administrator to the list of contacts associated with his or her social media account (i.e. “friending”); or
3. Change the privacy settings associated with his or her social media account.

Second, the Colorado social media law provides that an employer may not suggest, request, require, or cause an employee or applicant to do any of the following:

1. Disclose any username, password, or other means for accessing the employee’s or applicant’s personal account or service through the employee’s or applicant’s personal electronic communications device;
2. Add anyone, including the employer to the employee’s or applicant’s list of contacts associated with the social media account; or
3. Change privacy settings associated with a social networking account.

You can view the Arkansas law here and the Colorado law here.

Conversely, in New Jersey, the legislature passed a social media law of its own, but the New Jersey Governor  conditionally vetoed the measure and sent it back to the legislature with recommended revisions.  You can review his veto message here.

Altogether, with two (out of these 3 states) passing social media workplace laws, we now have seven total states with such laws.

As I’ve stated before, these laws appear to address a problem that doesn’t even exist.  In other words, “if it ain’t broke, don’t try to fix it”…

Fortunately, during the 2013 legislative session, the Hawaii state legislature was wise enough to realize that this type of law is unnecessary, and the bills dealing with social media privacy in the workplace died.  (In all likelihood, however, we will see similar measures introduced and heard at the Hawaii legislature in the upcoming sessions.)

On May 1, 2013, Judge Mollway issued her decision, and ruled that the State of Hawaii is “permanently enjoined” from enforcing any part of the statute in question.  In other words, the entire statute was invalidated.

Writing about the sick leave law reminds me of  a Dilbert strip I read a loooooooooong ways back:

You can read a copy of her order here:  Permanent Injunction on Sick Leave Law.

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.

Whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e. that an employer would not have taken an adverse impact action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e. that an improper motive was one of multiple reasons for the employment action.)

For the non-lawyers, the “but-for” standard carries a higher burden of proof than the “mixed motive” standard.  The Supreme Court’s decision will resolve a split between different federal circuits.  Specifically, the First, Sixth and Eleventh circuits have adopted the higher “but-for” standard, and the Fifth and Eleventh circuits have adopted the mixed-motive standard.

Although this case might seem to address a technical issue that only lawyers would care about, the result of this case is also important to employers – because (a) it may affect how employers make employment decisions (in order to avoid lawsuits) and (b) it will also affect how employers decide to defend against Title VII retaliation lawsuits.

You can read the transcript from the oral arguments here:  Transcript of Oral Arguments.  You can also listen to an audio version of the oral arguments on the oyez.org website here:  Audio Recording of Oral Arguments.

I think the program went really well.  The attendees were all very welcoming, attentive, and in good spirits.  They were also really engaging and asked a lot of great questions.  In addition, we were told the attendance for our presentation was the highest that SHRM Maui has ever had.  It looks like we’ll be partnering up with SHRM Maui on an annual basis to do similar presentations in the future.

Oh, and the venue – a banquet room at the Kahili Golf Course – was also really nice.  In fact, next time I’m out there, I might even try to squeeze in a round of golf…

Later this summer/fall, I’ll be traveling with another co-worker to Maui, Kauai and the Big Island to do a presentation on the interconnection between the various “leave laws,” which include the ADA, FMLA, Workers’ Comp, and TDI.  As any HR professional knows, managing employees’ leave is oftentimes a very difficult and confusing task, because of all the different laws that may apply.  This program will be open to both HEC members, as well as non-HEC members.  I hope you can join us.

Throughout the entire 2013 legislative session, it was almost a certainty that the legislature was going to pass a bill raising the state’s minimum wage.  At the beginning of session, both the House and Senate introduced several bills that proposed an increase to the state’s minimum wage.  In addition, Governor Abercrombie proposed a minimum wage increase in his State of the State address.  Finally, even President Obama has proposed an increase to the minimum wage (at the federal level.)  Therefore, on the issue of an increase to the minimum wage, it appeared the question was not “if” but rather “when, and by how much?”

Towards the end of the 2013 legislative session, one bill relating to the minimum wage – SB 331 SD2 HD1 – remained.  This bill was introduced by the Senate, amended twice by the Senate, and then amended once by the House.  The latest version of the bill proposed an increase of $0.50 for the next three years (effective January 1, 2014, 2015 and 2016), and then a $0.25 increase on January 2017.  Thus, the proposed minimum wage scale was as follows:

• January 1, 2014 – $7.75
• January 1, 2015 – $8.25
• January 1, 2016 – $8.75
• January 1, 2017 – $9.00

Unlike former versions of this bill (and some other bills), the latest version of this bill did not tie future increases to the minimum wage with inflation.  The bill also had a blank ($___) amount for the state’s tip credit, which is currently just $0.25.

During conference, the Senate and House Conference Committee members met on SB 331 HD1 five times.  The last meeting occurred last night, Friday, April 26, 2013 at 5:45 pm, just 15 minutes before the legislature’s self-imposed deadline for passing all bills out of conference.  At that final meeting, House Conference Chair Mark Nakashima noted that (a) the proposed minimum wage increase signified a 24% increase from the current minimum wage and (b) the parties had spent 90-95% of their time on discussions over the proper amount of the tip credit, and as a result, were unable to reach a resolution on the amount and timing of the minimum wage increases.

In response, Senate Conference Chair Clayton Hee said it was a “damn shame” that they could not reach agreement on the minimum wage bill.

A last minute amendment to CISPA was attempted by U.S. Representative Ed Perlmutter, that would have banned employers from requiring employees to share the login information for their social media accounts.  The House members rejected the proposed amendment by a vote of 224-189, and passed the bill without Rep. Perlmutter’s amendments.  The bill now has to be heard by the Senate.

On a related note, another bill that is pending before the U.S. House of Representatives is the Social Networking Online Protection Act (“SNOPA”), which also proposes to prohibit employers and certain other entities from requiring or requesting that employees and certain other individuals provide a user name, password, or other means for accessing a personal account on any social networking website.  This same exact bill was introduced in 2012, but was not given much attention.  For this year, govtrack.us is giving this bill a 1% chance of making it out of committee, and a 0% chance of being enacted into law.

As noted in a prior blog post, seven states have already enacted such a law.  Hawaii heard similar bills during the current legislative session, including HB 713 HD2 SD1, but all of those bills are dead.

While we’re on the subject, some humor:

This unfavorable ranking for Hawaii is probably not a surprise for a lot of people.  After all, Hawaii has consistently ranked poorly on similar studies and lists.  For example, last year, ChiefExecutive.Net (and Chief Executive magazine) ranked Hawaii as the 10th worst state for doing business.  Similarly, Entrepreneur.com also noted that Hawaii ranked at the bottom of the list in a study conducted by Thumbtack.com’s Small Business Survey.  Thumbtack.com gave Hawaii a failing grade of “F” for doing business.

I realize this blog entry is different from the types of entries I usually write, but I wanted to highlight Hawaii’s poor rankings in “worst states for business” type studies in light of the fact that we are currently at the end of another legislative session.  This year, many of the anti-employer bills already died, but there is still some pending legislation that would have an adverse impact on businesses, such as bills dealing with (1) successor employers and (2) the minimum wage.  (For further discussion on pending legislation, please see this blog post here:  HEC Legislative Digest Updated.)

Therefore, this blog post is a call-to-action for businesses to remind their legislators that Hawaii has consistently ranked among the worst states for businesses, and that we cannot afford further legislation that would hamper the ability of businesses to operate in Hawaii.  When businesses cannot prosper, the economy is adversely affected.  Interestingly, an announcement by AEDI on their website noted that nine of the worst states all have high budget deficits for fiscal year 2013, and that Hawaii had a budget deficit of $500 million.

If you want to get in touch with your legislature about any issues pertaining to the 2013 legislative session, you can find their phone numbers and email addresses here:  Legislative Directory.

You can view the original article on the AEDI website here:  AEDI Ranks Hawaii 41 out of 50 For Doing Business.

• Minimum Wage
• Successor Employers and Employee Retention Requirements
• Paid Leave for Organ, Bone Marrow or Stem Cell Donations
• Employee Breastfeeding Rights
• Workers’ Compensation Medical Fee Schedule
• Income Withholding Requirements for Criminal Restitution Cases

If you would like to view the Legislative Digest, you can view a copy here:  HEC Legislative Digest – After Second Crossover.  Earlier versions of the Legislative Digest as well as our “Highlights” (which provide a more detailed discussion of some of the bills) can be viewed on HEC’s website here:  HEC Newsletters.

Utah recently passed a law that would prohibit employers from asking an employee or job applicant for their social media log-in credentials (login ID and password.)  There are now a total of five states that have such laws:  California, Illinois, Maryland, Michigan, and Utah.

For Hawaii, a few bills were introduced this legislative session to create a similar law in Hawaii, but those bills all died.  In addition, Congress introduced the “Password Protection Act of 2012″ which would have provided similar restrictions on employers, but that bill did not pass either.

Speaking of social media, here’s a cute cartoon I saw on a social media site today: