Under Hawaii law, paid sick leave is a discretionary benefit. No amount of paid sick leave, other than the Hawaii State-mandated Temporary Disability Insurance (“TDI”) benefit, is required by law. Sick leave is generally considered a short-term benefit that enables an employee to be paid for time that the employee was scheduled to work but was unable to do so because of personal illness or injury. Read more…
The Department of Transporation has issued new drug-testing regulations, effective October 1, 2010. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf.
Among other changes, DOT now requires testing for Ecstasy (“MDMA”). In addition, the test cutoff concentrations for cocaine have been lowered and initial testing for 6-acetylmorphine (“6-AM”), a metabolite of heroin
Also, DOT has revised its definitions of “adulterated specimen,” “confirmatory drug test,” “initial drug test,” “invalid drug test,” “laboratory” and “limit of detection.” It has also added definitions regarding “initial specimen validity test,” “limit of quantitation,” “negative result,” “positive result,” “reconfirmed,” “rejected for testing,” and “split specimen collection.”
Employers covered by DOT regulations should familiarize themselves with the new regulations and implement changes to their drug-testing procedures as appropriate and required by DOT.
The purpose of the Hawaii Workers’ Compensation Act, HRS Chapter 386, is to provide compensation and medical care to employees who suffer an injury or disease “arising out of and in the course of employment.”
All Hawaii employers with employees must provide workers’ compensation coverage for their employees. Employers can provide coverage by either obtaining workers’ compensation insurance through an insurance carrier or obtaining approval for self-insured status.
Claims for compensation must be filed in writing within two years after the effects of the injury become manifest and within five years from the date of the accident. An injury is compensable under the workers’ compensation law if: (1) The injury arose out of employment, and (2) The injury was sustained in the course of employment. Read more…
“It happens more often than one might think: A worker sues a fellow worker of the same sex for sexual harassment.What doesn’t happen very often is that the case goes to trial. That’s why a federal trial in Louisiana, which began Tuesday, is making history. John Cherry claims that he was sexually harassed for six months in 2007 by his former supervisor, Michael Reasoner. Both men worked for the Shaw Group, a a Baton Rouge-based industrial services firm (which Mr. Cherry is also suing), and both are married. It is the first trial of its kind to reach federal court in Louisiana. Mr. Reasoner has responded to Mr. Cherry’s suit with a counterclaim for defamation. Shaw also denies any wrongdoing.”
This article goes on to note that the EEOC is seeing a significant increase in both men filing sexual harassment charges and charges alleging same sex harassment. Harassment Cases Evolving.
Under Hawaii State law, HRS Chapter 378, sexual orientation is defined as having a preference for heterosexuality, homosexuality, or bisexuality; having a history of any one or more of these preferences; or being identified with any one or more of these preferences. Hawaii employment law expressly prohibits employment discrimination and harassment because of sexual orientation. Transsexuals, transgendered individuals or transvestites are generally not protected by Hawaii employment law.
Title VII does not address discrimination based on sexual orientation. This has not precluded employees from raising discrimination claims on other discrimination theories, including discrimination “because of sex.” For example. the United States Court of Appeals for the Ninth Circuit has held that an openly gay employee had a viable claim of sex discrimination “because of sex” under Title VII. In so doing, the Court did not determine that sexual orientation is covered by Title VII, but instead stated that the employee’s sexual orientation was irrelevant. The Court reasoned that a Title VII claim was viable because the employee was subjected to offensive sexual touching that created a hostile work environment, regardless of the reason the harassment was perpetrated. Read more…
In another example of itchy Twitter fingers, Octavia Nasr has been fired. CNN fired the editor responsible for Middle Eastern coverage after she posted a note on Twitter expressing admiration for a late Lebanese cleric considered an inspiration for the Hezbollah militant movement. CNN explained that Nasr’s credibility had been “compromised” by the posting. View the article here: Another Twitter Faux Pas.
Number One? “Appearances are everything. When employees are preoccupied with staying in the office later in the evening than the boss does, fear is king. When people worry less about the quality of their work than about how they’re perceived by managers higher up the chain, you’ve got fear.”
Wow. While the “appearance is everything” mantra is king amongst green associates in big law firm cultures, I was interested to see this has now crept into other workplaces. Trust me. This is not a good sign. View the rest of the article here: Fear Based Workplaces.
The Americans with Disabilities Act Amendments Act, which went into effect on January 1, 2009, makes it easier for individuals to establish they have a disability within the meaning of the ADA. The EEOC’s anticipated regulations will further clarify how courts are to interpret the meaning of disability. Regardless of what the EEOC says in its final rules, many more employees will now fall under the ADA’s definition of disability, and employers will need to provide reasonable accommodations with greater frequency. This article discusses reasonable accommodation issues employers need to address when dealing with disabled employees: Reasonable Accommodation.
The Genetic Information Nondiscrimination Law of 2009 (“GINA”) is the first new federal discrimination law in decades. GINA makes illegal an employer’s mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members.
The Equal Employment Opportunity Commission (“EEOC”) has not decided whether GINA is violated where such information is obtained from “personal Web sites or social networking sites.” This issue is critical to employers that happen to obtain genetic information through Facebook, Twitter, or the numerous other social networking sites that have grown in popularity. The EEOC was supposed to have published regulations on Title II of the Act, which applies to employers, in May 2010. No such regulations have to date been published. I will let you know as soon as they are.
The U.S. Department of Labor today clarified the definition of “son and daughter” under the Family and Medical Leave Act. The guidance ensures that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.
Generally, the FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves. The 1993 law also allows employees to take time off for the adoption or the birth of a child.
The interpretation clarifies, for example, that an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.
The press release announcing the issuance of the interpretation may be viewed here: DOL Clarifies FMLA Definition of \"Son and Daughter.\"
Under Hawaii law, HRS § 378-62, an employer is prohibited from threatening to discharge, discharging, or otherwise discriminating against any employee or a person acting on behalf of the employee, who is a whistleblower.
Read more…
In City of Ontario v. Quon, No. 08-1332, U.S. Supreme Court (June 17, 2010), the U.S. Supreme Court held that a city police department’s search of an employee/police officer’s text messages was reasonable, and did not violate the individual’s Fourth Amendment rights. Read more…
According to this article, “stupid,” “big mistake,” and “uncomfortable,” are just some of the words or terms that are susceptible to targeted searches of e-mails in litigation related discovery. Read the article here: E-mail Words to Avoid.
According to the lawyer advising the Big 12 Conference, under the confererence by-laws the University of Colorado and the University of Nebraska failed to provide a proper two-year notice that they were leaving the conference. In theory, the by-laws call for any school who withdraws improperly to disgorge up to 80 percent of its share of conference revenue for a two-year period. It will be interesting how this mess unfolds and ultimately how the have-nots of the NCAA are affected by the changing landscape. View article here: Big 12 Conference Lawyer Comments.
The U.S. Department of Labor published a final rule in the May 20 edition of the Federal Register requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act.
Federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces. The notice lists employees’ rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or complaints.
The rule implements provisions of Executive Order13496, which was signed by President Barack Obama on Jan. 30, 2009. The requirement for posting this employee notice must be included in every covered federal contract and subcontract.
Under the rule, employees will have the right to file complaints with the Department of Labor about contractors that do not comply with the prescribed requirements. Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract. Two Labor Department agencies, OLMS and the Office of Federal Contract Compliance Programs, are responsible for administering and enforcing the rule’s requirements. More information can be found here: Notification of Employee Rights.
A court has “ruled that the two plaintiffs, who alleged that their employer’s behaviour had led to severe emotional distress, must hand over significant chunks of their social networking profiles and postings, which included videos and photographs. This was because such content could `reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.’”
The court also stated that “regardless of whether the content was marked ‘locked’ or ‘private’, some of it would be indirectly relevant to the plantiffs’ claims and was, therefore, discoverable. The court emphasised the expansive boundaries of relevance, but also noted that it was not without limits.’”
See article here: Social Media Comments Relevant to Lawsuit
The Hawaii Family Leave Act (“HFLA”), Chapter 398, Haw. Rev. Stat., requires employers who employ one hundred (100) or more employees for each working day during each of twenty (20) or more calendar weeks in the current or preceding calendar year to provide up to four (4) weeks of family leave during any calendar year upon the birth of a child or the adoption of a child, or to care for the employee’s reciprocal beneficiary, child, spouse, or parent with a serious health condition. The family leave may consist of unpaid or paid leave, or a combination. An employee or employer may elect to use any of the employee’s applicable accrued paid leave such as sick, vacation, personal, or family leave for any part of the four (4) week period. Read more…
Employers and employees alike are using social media for business and personal reasons. Social websites, such as Facebook, can allow large group of people into a person’s life and also help a business grow. Employers and employees also have the ability to use social websites as a way of gathering information. An individual might contemplate whether to accept a position with a company based on the information they glean from the company website and existing employees’ postings on social media. At the same time, employers often make hiring decisions based on “research” done on prospective employees. “Google” a name and it is not unusual for you to receive hundreds of “hits.”
Consequently, it is critical that both employers and individuals take steps to protect their reputation and to the extent possible ensure that unflattering postings and images are kept off or “wiped off” the web. For many individuals who have fallen victim to on-line smearing, or who have had private information posted on-line without their permission, having the posting deleted may be difficult or virtually impossible without some form of legal action. The following link contains a Honolulu news story that covers the issue of how difficult it is to wipe off the internet information or pictures that are embarassing, defamatory, or private not meant for public consumption.
\”Wiped Off the Web\” Read more…
The majority of all employment relationships can be divided into three categories:
- Collective Bargaining Agreement: Wages, hours, and other terms and conditions of employment are set forth in a collective bargaining agreement which is the product of negotiations between the employer and the union.
- Employment Contracts: Employment contracts for a definite duration are subject to certain termination conditions ( i.e., good cause) and are usually negotiated on an individual basis.
- Employment-at-Will: Either the employee or the company may terminate the employment relationship at any time for any reason (or even no reason).
Employment At Will Doctrine
The traditional doctrine of at-will employment permits an employer to terminate an employee “for good cause, for no cause, or even for cause morally wrong without being thereby guilty of legal wrong.” To avoid the harsh impact of the well-established doctrine of at-will employment, state, federal courts and legislatures have created or enacted many laws to restrict this otherwise unfettered right. Read more…
The Supreme Court on Monday leaps into the high-tech world of text messaging in a challenge with potentially huge implications for the privacy rights of senders and receivers and for workplace communications.
City of Ontario, Calif. v. Quon, one of two cases leading off the final round of oral arguments this term, is the Court’s first foray into workplace monitoring of electronic and digital communications.
The city asks the justices whether a member of its police SWAT team had a Fourth Amendment “reasonable expectation of privacy” in text messages transmitted on his SWAT pager. The case also raises the issue of whether the senders of messages to the SWAT pager had their own reasonable expectation that the city would not review their messages.
View article here: Text Messaging and Workplace Privacy.
