Virtual Hawaii Employment Lawyer

Hawaii Employment Policies and Procedures: Sick Leave Basics

admin — Thu, 19 Aug 2010 19:27:36 +0000

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.

Hawaii State law permits employers to customize their TDI policy, so long as the policy is “equivalent” to the mandated benefit. Some employers choose to use their temporary disability insurance as their sick leave policy, or to integrate paid sick leave with their TDI plan. These employers must have their “equivalent plans” approved by the Hawaii Department of Labor and Industrial Relations (“DLIR”).

Employers with paid sick leave policies who are covered by the Hawaii Family Leave Act (“HFLA”) (generally 100 or more employees) must allow employees eligible for leave under HFLA to use up to ten (10) days of accrued and available sick leave for HFLA purposes. Thus, even if paid sick leave is normally to be used for an employee’s own illness or injury, employees covered by the HFLA may use up to 10 days of sick leave for any HFLA purpose.

The exception is that benefits provided under a Hawaii DLIR-approved TDI plan which incorporates sick leave benefits are not subject to the HFLA.

Hawaii employers should specify how sick leave is earned, is accrued and used. A written policy should set forth how many (for example, 7 days) days of unused sick leave may be carried over into a following year. However, the number of days that may be carried over is discretionary.

Sick leave policies may provide that employees cannot carry accrued sick days over into the following year—that accrued but unused sick leave at the end of the year is forfeited. They may also state that the employer will pay out accrued but unused sick leave at the end of each year, rather than have it carry over to a following year.

Unless a Hawaii employer has legitimate grounds in individual cases to suspect factors such as abuse of sick leave, or that the employee is incapable of performing essential or non-essential job functions, employers should generally limit the required medical certification upon an employee’s return from sick leave to a statement that the employee was “unable to work.” Such a request (unlike a diagnosis) does not elicit information about a potentially health impairment or disability protected from disclosure. Employers and employees alike, however, need to be aware that other laws (e.g., FMLA, HFLA, ADA) may permit a request for information regarding a diagnosis.

As an alternative to separate sick leave and vacation policies, employers are increasingly utilizing a personal time off or “PTO” policy. PTO policies provide employees with a bank of paid leave which can be used by the employee for vacations, illnesses, or for any other purpose. Conversion to a PTO policy may be slightly complicated, because sick leave plans are often administered on an anniversary year basis, while PTO policies are often administered on a calendar year basis.

DOT Issues New Drug Testing Regulations

admin — Tue, 17 Aug 2010 20:55:47 +0000

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.

Hawaii Employment Law: Workers’ Compensation Law Basics

admin — Fri, 30 Jul 2010 19:24:08 +0000

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.

Within seven working days after an employer has knowledge of an injury which causes an absence for more than one day or requires medical attention beyond first aid, the employer must report the injury on a WC-1 Report of Industrial Injury Form.

Unless rebutted by substantial contrary evidence, it is presumed under Hawaii law that: (1) The employee’s claim is for a covered work injury; (2) Sufficient notice of the injury was given to the employer; (3) The injury was not caused by the intoxication of the injured employee; and (4) The injury was not caused by the willful intention of the injured employee to injure her or himself.

In order to overcome or rebut the presumptions, the employer is required to offer up substantial evidence that the claim is not for a work-related injury.

Four types of benefits are available to employees who suffer occupational injuries or diseases: (a) indemnity benefits; (b) medical benefits, (c) vocational rehabilitation benefits; and (d) death benefits. If there is a dispute whether compensation is due or the amount that is due, either party may request a hearing. Hearings are scheduled before a hearing officer.

Within 60 days after a hearing, the hearings officer will issue a determination including findings of fact, decision and order. Within 20 days after the mailing of the award, a party may appeal the decision to the Labor and Industrial Relations Appeals Board for a de novo review of the award. Either party may appeal a final decision by the Appeals Board to the Intermediate Court of Appeals within 30 days.

Generally, recovery under Hawaii’s workers’ compensation law is an employee’s exclusive remedy for work-related injuries or diseases. However, an employee generally cannot sue his or her employer or a co-worker for damages resulting from occupational injuries caused by the employer’s or co-worker’s negligence. This does not necessarily preclude injuries resulting from intentional acts, for example.

Same Sex Harassment Cases on the Rise

admin — Fri, 23 Jul 2010 00:13:49 +0000

“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.

Hawaii Employment Law: Sexual Orientation Discrimination

admin — Thu, 22 Jul 2010 01:13:58 +0000

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.

The Ninth Circuit’s refusal to openly state that sexual orientation discrimination claims are covered by Title VII comports with conclusions reached by other jurisdictions, which have generally refused to allow employees to bring a sexual orientation discrimination or harassment claim under Title VII until the federal legislature amends the statute. This approach does not preclude employees from bringing same-sex harassment claims, however, as the U.S. Supreme Court has held that such claims can violate Title VII where discrimination occurred “because of sex”.

In 2006, the Hawaii Legislature passed legislation to prohibit discrimination in housing and public accommodation on the basis of sexual orientation, gender identity or expression. The provision defines “gender identity or expression” is defined 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. The term includes transvestites, transsexuals, hermaphrodites, and other individuals who spend portions of their time in a gender other than that of birth.

The housing and public accommodation law also provides that patrons who perceive they have been discriminated against may file claims with the Hawaii Civil Rights Commission. Remedies available for this type of claim include: (a) a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is greater; (b) reasonable attorneys fees and costs; (c) injunctive relief; and (d) a civil penalty of $500.00 to $10,000.00 for each violation.

While it is protected within the context of public accommodation and housing, gender identity is not a protected category under Hawai’i employment discrimination law. Further, in considering discrimination claims raised by transsexuals under federal law, many courts have reasoned that “[w]hile Title VII’ s prohibition of discrimination on the basis of sex includes sexual stereotypes the phrase ’sex’ has not been interpreted to include sexual identity or gender identity disorders.” This area of law is continues to evolve, however, and it should be noted that other jurisdictions have allowed transgendered individuals to bring claims of sex discrimination under a sex stereotyping theory.

CNN Editor Fired Over Twitter Posting

admin — Mon, 12 Jul 2010 20:16:39 +0000

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.

“Ten Signs of a Fear-Based Workplace”

admin — Mon, 12 Jul 2010 20:10:30 +0000

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.

“What is Reasonable Accommodation Anyway?”

admin — Fri, 02 Jul 2010 19:26:02 +0000

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.

No EEOC Regulations on GINA to Date

admin — Mon, 28 Jun 2010 19:21:05 +0000

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.

Department of Labor Clarifies FMLA Definition of “Son and Daughter”

admin — Wed, 23 Jun 2010 19:37:40 +0000

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.\"