Virtual Hawaii Employment Lawyer

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…

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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

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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…

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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?

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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.

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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.

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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…

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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.

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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…

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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…

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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.

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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.

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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.

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The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager.  The Supreme Court has given public employers wide latitude to search their employees’ offices and files.  But it has also said that the Fourth Amendment, which forbids unreasonable government searches, has a role to play in any analysis of that latitude.  It will now address a case involving the Ontario Police Department, which had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.”  It did not directly address text messages. 

Members of the department’s SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month.  Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.  The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business.

Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated.  Judge Kim McLane Wardlaw, writing for a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy.  Read the article here:  Supreme Court Case to Shape Electronic Privacy Issues.

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More employees are using their own laptop computers at work, a trend that employers should approach with considerable caution, observers warn.  Concerns about establishing boundaries between personal and company information, protecting company networks against viruses and malware that may infect workers’ computers, and retrieving vital company data when the employee leaves the firm are just a few issues with which employers must contend, observers say.  Read article here: Employee-Owned Laptops Present Risks.

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Under HRS Chapter 389, owners and operators exercise authority, control, or discretion over places of public accommodation.  In this capacity, owners and operators are subject to liability for unfair discriminatory practices due to race, sex, color, religion, ancestry, or disability by themselves, or their employees and agents.  

The Hawaii Civil Rights Commission (“HCRC”) has established that all owners and operators of public accommodations are liable for the discriminatory acts of its employees and agents, regardless of whether the acts were authorized or even forbidden, and regardless of whether the owners or operators knew or should have known that the act occurred. Read more…

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“A workplace holiday party is not really a party.  In fact, it’s downright misleading to even call it a ‘party.’  It’s actually a ‘business event.’  As in, ‘work.’   Therefore, the way to successfully navigate your workplace holiday party is to treat it like work. Confuse it for a night out with old college buddies, your siblings, or even the members of your book club, and you have created a recipe for career disaster.  Sounds rather gloomy and unfestive, doesn’t it?  Fret not. You do still get to have (some) fun.  You do still get to eat and drink (some) at the company’s expense. The trick is simple: Always remember the “work” in workplace holiday party, and you’ll be OK.”   Holiday Party Not a Party.

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According to the latest study from Jury Verdict Research, employment verdicts continue to be on the rise. 

The median award for all types of employment claims rose a whopping 60% in the past year, from $204,000 to $326,640. Discrimination verdicts rose 16%, from $208,000 to $241,119.

What are an employer’s chances of winning at trial?

Employers won only 39% of discrimination lawsuits in the past year, tied for the worst win rate in the past decade.  View article here:  Jury Trial Research.

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GDP Revised:  Economic growth was weaker in the third quarter than originally reported, according to government data released Tuesday.

The gross domestic product, the broadest measure of the nation’s economic activity, rose at an annual rate of 2.8% in the three months ending in September, according to the Commerce Department’s first revision of the reading. The initial reading of the report a month ago came in with a 3.5% growth rate.

The decline in the growth rate was expected, in large part because of a recent report showing a growing gap between the nation’s imports and exports. Importing goods from other countries is a drag on domestic U.S. growth.

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Amid the economy’s many ailments, some good news has remained mostly off the radar: The at-home work force is growing, and it is encompassing new occupations ranging from radiology and nursing to auditing and teaching.  View article here:  The Five Second Commute.

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