Virtual Hawaii Employment Lawyer

“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…

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…

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.

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.

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.

The majority of all employment relationships can be divided into three categories:

1. 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.
2. 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.
3. 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…

“Recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically.” View article here: Electronic Privacy and Email.

The Hawaii Prepaid Health Care Act, Chapter 393, Haw. Rev. Stat., requires private sector employers to provide minimum prepaid health care coverage to eligible employees. Employees become eligible for coverage once they work for an employer at least twenty (20) or more hours per week for four (4) consecutive weeks and earn a monthly wage of at least 86.67 times Hawaii’s minimum hourly wage.  

Employees must be covered at the earliest possible time permitted by the health care contractor after meeting eligibility requirements. The employer must notify eligible employees of their rights under the Act, provide advance notice of any changes, and provide the employer’s health care contractor’s name, plan number, group number, effective date of coverage, and employee’s cost share for funding health insurance premiums. Read more…

During an investigation into a harassment claim involving allegations of harassment by text message, can an employer access employees’ text messages outside of a discovery request without violating their expectations of privacy?  View an article on this issue here:  Text Harassment Investigations.

Prompt, thorough and effective investigations are an integral part of an employer’s prevention and correction of sexual and other forms of unlawful harassment in the workplace. Recent United States Supreme Court decisions have emphasized the importance of the employer’s efforts to prevent sexually harassing behavior and promptly correct any such behavior which does occur.

These decisions establish that in sexual harassment job cases involving harassment by a supervisor where no tangible employment action is taken, the employer may avoid liability if it can prove as an affirmative defense that: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of the employer’s anti-harassment policies and any preventive or corrective opportunities. Read more…

From 2007—the recession first started in December of that year—to the end of 2008, overall claims filed with the EEOC increased by 28%, from 83,000 to 95,000. Discrimination claims jumped by 28%, and retaliation charges—what lawyers call the hottest charge these days—jumped by 22% last year, from 27,000 to 33,000 claims. The EEOC does not have numbers yet for 2009.  View article here:  EEOC Flooded With Complaints.

As of November 21, 2009, covered employers will be required to post information on the ban on employment discrimination based on genetic information contained in the Genetic Information Nondiscrimination Act of 2008 (“GINA”).  GINA prohibits employers from discriminating against applicants and employees based on genetic information.  The law also restricts employers’ acquisition and disclosure of genetic information.  The employment provisions of GINA apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.  They also cover Congress and federal executive branch agencies.

The Equal Employment Opportunity Commission (EEOC) has approved a proposed final rule implementing the employment nondiscrimination provisions and has revised its “Equal Employment Opportunity is the Law” poster to add information about GINA.  The revised poster also includes updates from the Department of Labor.  Employers may obtain the EEOC’s approved posting at www.eeoc.gov.

Hawaii law, HRS Chapter 378, already makes it illegal to discriminate against anyone based on a “disability.”  “Genetic information” is classified as a diability in Hawaii and “includes but is not limited to employer consdieration of an individual’s genetic information, including genetic information of any family member of an individual, or the individual’s refusal to submit to a genetic test as a condition of initial or continued employment.” Read more…

“One of the few women ever to write for Late Night with David Letterman, the author (a longtime V.F. contributor) remembers a hostile, sexually charged atmosphere. What’s to be done? Start by breaking late night’s all-male gag order.”  Letterman Show-Sexually Charged Atmosphere.

A former cashier for a big box retailer who has been wearing a “One nation under God” button on his work apron for more than a year has been fired, he says because of the religious reference.  The company claims that expressing such personal beliefs is simply not allowed.  “I’ve worn it for well over a year and I support my country and God,” Trevor Keezor said Tuesday. “I was just doing what I think every American should do, just love my country.”  Fired Over God Button?  This is an interesting case.  While Hawaii and federal law protects employees from discrimination based on religion, employers are permitted to control speech in the workplace, and arguably the button connotes more of a political statement than anything else.  Stay tuned.

The EEOC reports a surge in complaints of retaliation being filed with the EEOC.  Claims including a retaliation charge rose 23% in the year ended Sept. 30, 2008, to 32,690 — more than a third of all claims filed with the agency.  Claims that didn’t involve retaliation rose 12% in the same period.  View article here:  Retaliation Claims Increase.

Workplace violence is in the news again after Yale doctoral student, Annie Le, was found murdered and stuffed behind a wall at the research lab where she worked.  Police said the murder was an example of “workplace violence.”  The expert interviewed for this article  states that “workplace attackers usually don’t just explode . . . if you’re attuned to warning signs, perpetrators usually telegraph their motives.”  View the article here:  Workplace Violence Once Again Subject of Focus.

On September 23, 2009, the EEOC published in the Federal Register proposed regulations and interpretive guidance in response to the ADA Amendments Act of 2008 (“ADAA”).  The Americans with Disabilities Act (“ADA”), an antidiscrimination statute, was signed into law in July 1990.  The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities.  You can view a copy of a press release regarding the proposed regulations here:  http://www.eeoc.gov/press/9-16-09f.html. Read more…

The U.S. Department of Labor just announced it’s hiring 250 investigators to look into wage-and-hour violations by employers across the country. View the article here: 250 More Investigators for DOL.

A lawsuit recently filed by the EEOC under the Americans with Disabilities Act (“ADA”) highlights how employers commonly misunderstand the extent of their obligations towards disabled employees, including the requirement that they provide reasonable accommodation. In its press release announcing the filing, http://www.eeoc.gov/press/9-11-09.html, the EEOC alleges the employer have refused to allow qualified employees with disabilities who are on authorized disability leave, or who are eligible for it, to return to work if they have any work restrictions, and to have terminated them if they reach the one-year mark on leave. The EEOC also charges that the company has refused to allow qualified employees with disabilities to be assigned to temporary light duty jobs unless they were injured on the job.