Virtual Hawaii Employment Lawyer

Last year, business owner Paige Darden stumbled upon an employee’s MySpace profile saying this person was planning a two-hour lunch because her boss was out of the office.

Concerned about her small firm’s reputation, which was identified as the writer’s employer, Ms. Darden says she began occasionally checking the profile. While most subsequent posts seemed like harmless venting, she says the employee eventually crossed the line by threatening a co-worker. View article here: Businesses Wary of Social Media.

According to a survey conducted by Liberty Mutual’s Responsibility Project, 56% of Americans think it’s “irresponsible” to friend your boss on Facebook, while 62% of bosses agree it’s wrong to friend an employee.

Reuters reports on other interesting results from the survey, including that 73% think it’s not OK to check Facebook at work, but 66% say checking personal e-mail is fine. Tweeting while at work is considered irresponsible for 72% of respondents, and watching online videos is wrong for 79%.

View article here:Facebook Friends

I saw this short article regarding small businesses and must say that since I started practicing employment and labor law around 15 years ago I notice the same mistakes being made by employers.

The article states:

“Small business owners might be surprised to learn they they are vulnerable to the same worker complaints that plague corporate America. In particular, more employees are suing companies for violating wage-and-hour rules, typically claiming they weren’t paid overtime. A small business that lacks in-house counsel or a human resources department can unwittingly violate federal or state laws covering workplaces. And many business owners, eager to create informal workplaces, simply neglect to educate staff on harassment or discrimination polices.”

The article goes on to list three steps that can significantly reduce the risk of liability: 1. Properly classifying your employees; 2. maintain an effective discrimination/harassment policy; and 3. maintain proper documentation.

You may view the article here: Reducing Risk in the Workplace.

The Age Discrimination in Employment Act (“ADEA”) applies to employers who employ 20 or more employees. The ADEA prohibits: (1) discharging or discriminating against employees who are at least 40 years-old; and (2) retaliating against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

Hawaii law, HRS Chapter 378, also prohibits age discrimination. Significantly, however, HRS Chapter 378 applies to all employers. Further, all employees regardless of their age are protected against age discrimination. Thus, relatively younger individuals (even those less than the age of 40) who are perceived to be less qualified or skilled for an open position, promotion, raise, etc., because of their relatively younger age, and have been harmed by the decision connected to such perception, could have a potential claim against the employer. Read more…

The Obama Administration has made clear in its proposed budget for the fiscal year 2011 that it will be targeting the misclassification of independent contractors. As part of the 2011 Budget, the Departments of Labor and Treasury are pursuing a joint proposal that eliminates incentives in law for employers to misclassify their employees; enhances the ability of both agencies to penalize employers who misclassify; and restores protections to employees who have been denied them because of their improper classification.

Employers should be aware that the Department of Labor will often find misclassification as an independent contractor where the following factors exists, singly or in combination with others:

- The independent contractor performs the same kind of work that employees also perform for the business;

- The independent contractor performs work that is essential to the business;

- The independent contractor is prohibited from selecting their own personnel;

- The independent contractor is not paid per project;
- The independent contractor may not/does not, perform similar services for other businesses;

- The independent contractor lacks the ability to control the manner in which services are performed;

- The independent contractor receives training from the business;

- The independent contractor does not provide their their own tools/suppies.

Employers should take extreme care to ensure independent contractors are properly classified. Failure to do so can lead to significant penalties.

“A useful tool for any growing company is the employee handbook, which outlines your policies on harassment, discrimination and discipline, and can serve as a shield in the event an employment claim is brought against your business. A handbook can also communicate your vision of the company to employees, and provide exact details on how you expect them to perform their jobs, treat customers and carry out the company’s goals.” Employee Handbooks.

Personnel and related records present risk to employers if not stored, maintained and disposed of appropriately. Employers should designate at least three levels of security for access to employee information/records. A person receiving one or more of the three designations should be given the authorization in writing. The levels are as follows: Read more…

Secretary of Labor Hilda L. Solis today, through a national online discussion with stakeholder groups, the general public and the news media, outlined the president’s fiscal year (FY) 2011 budget request for the U.S. Department of Labor, which is built around the vision of “good jobs for everyone.” The budget launches innovative ways to prepare workers for 21st century jobs, and makes new investments in programs that protect workers’ rights, safety and health in the new economy. It reaches out to diverse audiences to ensure that all people from all communities are included in the jobs of the future. See Secretary Hilda L. Solis’ Press Release here: DOL Press Release

When a formal charge of sexual harassment is filed with the EEOC or the Hawaii Civil Rights Commission, or a lawsuit is brought in federal court or Hawaii State court, one primary issue will be what, if anything, the employer did to prevent or stop the harassment.

There are several specific steps an employer should take to emphasize to employees that sexual harassment will not be tolerated in the workplace. An employer’s managers and supervisors take on an important role at each of these steps. One of the most important steps is the effective implementation of a sexual harassment policy. Read more…

I can imagine Dick Vitale announcing games in this all-white basketball league called “The All-American Basketball Alliance.” I am almost certain each of the players on the Court “brings their hard-hat” and are “blue-collar” players. I am just as certain that their “fundamental” play is matched only by their “high basketball IQ,” and that several of their fathers were themselves coaches.

According to the league announcement, “Only players that are natural born United States citizens with both parents of Caucasian race are eligible to play in the league.”

Well, will this league pass legal muster? Here’s one legal take on the proposed league: All White Hoops League Legal?

Recent changes enacted as part of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and its implementing regulations require Covered Entities and their Business Associates to implement Security Breach Notification procedures and may require revisions to existing Business Associate Agreements (“BAAs”). HITECH was passed as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). The new requirements became effective September 23, 2009, following the publication of the Department of Health and Human Services (“DHHS”) Security Breach Notification Interim Final Rule (the Interim Rule) in August of 2009. Their enforcement begins on February 23, 2010.

HITECH requires Covered Entities to report to the affected patient, and in some cases to the Centers for Medicare and Medicaid Services(CMS) and/or the local media, any breach to the security of “unsecure” protected health information (“PHI”) held in electronic form. The law applies to Business Associates and BAAs are required to incorporate specific provisions of the law. Accordingly, all Covered Entities and Business Associates should review their BAAs and policies/procedures to ensure compliance with HITECH.

On January 13, 2010, the U.S. Department of Labor (“DOL”) issued new model COBRA notices that incorporate the changes from the Department of Defense Appropriations Act, 2010, which was signed into law by President Obama on December 19, 2009. The Act effectively extended COBRA benefits from nine to 15 months. The new notices can be found at http://www.dol.gov/ebsa/COBRAmodelnotice.html.

The new “Premium Assistance Extension Notice” should be sent to the following individuals: (1) Those who were “Assistance Eligible Individuals” and receiving the COBRA subsidy as of October 31, 2009; (2) those who were involuntarily terminated after October 31, 2009 and lost health benefits coverage, but have not been provided with the updated General Notice; and (3) those in a “transition period,” i.e., those whose COBRA subsidy ended because they had exhausted the original number of months (generally nine months), but are entitled to continue the subsidy to 15 months.

Employers should visit the the DOL and incorporate the new notice to the extent necessary and required by the law.

A work environment is considered “hostile” under both Hawaii and federal law when sexual behavior is severe or pervasive enough to alter the complaining employee’s employment conditions and create an abusive work environment.  This occurs when unwelcome sexual or gender-based conduct has the purpose or effect of creating an intimidating or offensive work environment or unreasonably interfering with an individual’s work performance.

Sexual flirtation or innuendo, even vulgar language or sexist remarks that are trivial or merely annoying, would probably not meet the legal definition of a hostile environment.  But such activity can still be prohibited by workplace policy and should be stopped as soon as management becomes aware of it. Read more…

Effective Jan. 1, Big Island motorists are prohibited from using hand-held cell phones while driving.  The new law also bans the use of other electronic devices such as laptop computers and video games but permits the use of hands-free devices.  Violators can be penalized up to $150, with fines increasing up to $500 if use of the electronic device causes an accident.  See Big Island Cell Phone Ban.

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission (“EEOC”) defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1.

“National origin” is a vague concept.  The EEOC attempts to resolve some of the uncertainty by recognizing that while one’s “ancestry” is not necessarily synonymous with one’s national origin, where a person was born, the terms overlap as a legal matter.  The United States Supreme Court has itself stated that, “the term `national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.”

Hawaii law, HRS Chapter 378, prohibits “ancestry” discrimination, but not national origin discrimination.  Like Title VII, the terms “ancestry” and “national origin” as a practical matter overlap under Hawaii law.  The state regulations are more expansive in that employers are precluded, unless there is a bona fide occupational qualification, from making pre-employment inquiries and requests for information which tend to disclose the applicant’s ancestry.  Under federal law, such inquires are not illegal per se, but may constitute evidence of unlawful discrimination. Read more…

Title VII and Hawai’i Revised Statute Chapter 378 prohibit employment discrimination on the basis of race and color. The term “race” generally includes all distinctive racial characteristics such as physical characteristics (i.e., color, hair, or facial features), culture (i.e., cultural grooming practices or racially distinctive accent such as “Black accent” or “sounds White”), and race-linked illnesses (e.g., sickle anemia primarily affects persons of African descent).  ”Race” can also include a person’s name.

Discrimination and Definition of “Color”

The term “color” has been interpreted to mean pigmentation, complexion, or skin shade or tone. Although color and race discrimination often overlap, a person may allege color discrimination without alleging race discrimination.  For example, a darker-skinned Hispanic person may claim color discrimination when the employer allegedly favored lighter-skinned Hispanics over darker-skinned Hispanics.  Read more…

The U.S. Equal Employment Opportunity Commission (“EEOC”) has published in The Federal Register a Notice of Proposed Rulemaking on a series of discrete changes to discrimination complaint regulations. The agency is soliciting comments from the public and other interested parties by Feb. 19, 2010.

The proposed changes represent consensus measures identified in the report of an internal federal sector work group run by Acting Chairman Stuart J. Ishimaru when he was an EEOC Commissioner.  The changes include allowing agencies to conduct pilot projects for complaints processing, conforming the standard for bringing complaints of retaliation in the federal sector to private sector standards, and requiring agencies to notify complainants of their right to request a hearing when an agency investigation has gone on for more than 180 days.  View the press release here:  EEOC Solicits Comments.

On December 21, 2009, President Obama signed legislation extending the COBRA premium subsidy established under the American Recovery and Reinvestment Act of 2009 (“ARRA”).  Originally under ARRA, individuals who were involuntarily terminated and who lost group health insurance coverage before December 31, 2009 were eligible to receive the subsidy for nine months of coverage. 

The new legislation extends federal COBRA health coverage cost subsidies for 6 additional months for a total of 15 months of subsidized coverage.  The extension applies to those COBRA beneficiaries whose nine-month premium subsidy under the ARRA had expired.  The legislation also extends the qualifying event deadline to February 28, 2010.  The legislation amends the ARRA provisions that required terminated employees to have been eligible for COBRA coverage by December 31, 2009.  Now, the terminated employee only must have been terminated by December 31, 2009, even if COBRA eligibility isn’t effective until some time in 2010.

The legislation also gives beneficiaries whose subsidy expired and who didn’t continue to pay the full unsubsidized premium the opportunity to receive retroactive subsidized coverage.

The EEOC will be receiving an extra $23 million to help tackle the growing problem of backlogged cases.

The 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would funnel those additional millions to the EEOC to help the agency get a handle on more than 70,000 unresolved discrimination complaints.

The resource-starved EEOC recently saw a 35 percent jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20 percent increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination.

Meanwhile, the agency has watched staffing levels shrink 25 percent in recent years, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators.  View article here:  EEOC Receives More Funding.