New Law in the Brief: Act 206 Protecting Domestic Violence Victims in the Workplace

Today’s New Law in the Brief focuses on a serious new law that helps out people in an unfortunate situation.Act 206 is aimed at creating a protected status for those who have been a victim of domestic violence. Some of you are probably are questioning the need for such a thing because a) you thought this was a already protected status or b) thought what kind of employer fires someone for being the victim of abuse.

Sadly, that was not the case in the State of Hawaii and it was only this year that an employer is prevented from discriminating against those who have been victims. You may ask who is callous enough to fire a woman who is being beaten? Well, the sad truth is that actually is the case and this news post from The Maui News shows this to be the case (and discusses the new law as well).

The Specifics of Law

Act 206 will go into effect next year, January 1, 2012.

The law will protect victims of domestic or sexual violence from employers discriminating against them from status. In general, it aims to prevent wrongful termination or suspension, as was the cast in the Maui News story. However, for the victim to be availed this protection the employer has to be notified from the victim or have actual knowledge. Furthermore, the employer must make reasonable accommodations for the victim, so long as it does cause an undue hardship. The law is very much fashioned similar to the ADA.

The employer is allowed to request verification of an employee’s continued status. In many cases, a Temporary Restraining Order (TRO) is issued and does end at some point or the victim’s persecutor is put away, and thus the need for protection ends.

Finally, the law also creates a civil remedy (money) for employee-victims denied their reasonable accommodation under the law.

Reasonable Accommodations for Victim-Employees

The law offers up some reasonable accommodation measures that an employer should do to help the victim-employee and they are as follows:

(1) Changing the contact information, such as telephone numbers, fax numbers, or electronic-mail addresses, of the employee;
(2) Screening the telephone calls of the employee;
(3) Restructuring the job functions of the employee;
(4) Changing the work location of the employee;
(5) Installing locks and other security devices; and
(6) Allowing the employee to work flexible hours;

provided that an employer shall not be required to make the reasonable accommodations if they cause undue hardship on the work operations of the employer.

See Act 206.

An employer may have to do all of these or some of these, but remember the standard is “reasonable” accommodation, thus whatever is necessary to protect the victim-employee and make them feel safe should be implemented to the employer’s ability without it impacting their operations.

If an employer is already experienced in handling ADA reasonable accommodations many of these changes and the kind of process you have to go through should seem familiar. However, the slight difference here is you are kind of protecting the identity and safety of the victim, so that the person harming them cannot find and harass them. Also when handling this kind of situation, remember your obligation to keep a safe work environment for ALL your employees.

Thanks for following my New Law in the Brief posts. Law in the Brief will be going from regular posting to special posting until next year. This does not mean there are no new laws in Hawaii. In fact, there are a 235 Acts from this past legislative session. You can check them out here.

Just click Law in the Brief, to see the past posts.

As always, don’t forget to “Subscribe” to this blawg do so by clicking the little orange button up in the right-hand corner of the page.

—

*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Draw the Law: People Issues VII, Protecting Workplace Privacy Part I

As you can see from the prior Draw the Law posts, you as the employer, are responsible for your employees’ health, safety, paying them, and for protecting their information.  Today’s Draw the Law (and the next two) will be about protecting employees’ private information.

So a Hawaii employer should think about the following situations when it comes to employee privacy:

1. Credit and Background Checks
2. Surveillance and Electronic Monitoring
3. Searching Personal Property
4. HIPAA Privacy
5. Job References
6. Social Security Numbers
7. Other Personal Information

As you can see there are a lot of situations you need to be worried about, so I will be breaking this topic into Part I today, which will cover the first two situations.   Part II will handle numbers 3 and 4.  Finally, Part III will handle 5 – 7.

Unless you are an all powerful all seeing eye that lords over a realm, you are going to have to respect the privacy of your employees and comply with the law in many situations.

Credit and Background Checks

While you may think that the Fair Credit Reporting Act (“FCRA”) applies only to consumer reporting, it actually also applies to employers who obtain and use information from consumer reporting industries for their job applicants or current employees.  It applies not only to consumer credit reports, but educational background checks, license checks, employment history and the like when the information is obtained from a entity that regularly puts together these types of reports (even includes private investigators).

Typically, a job applicant submits an application, the employer wants to check it out through a reporting agency, but before they do that they must notify and get approval from the applicant.

As the employer, you must:

1. give notice to the person you intend to get a report on;
2. obtain their written authorization to that the agree;
3. if you take an adverse employment action based on the information received you must also give notice in that situation.

The specifics of when to give notice.

The Reports and Reporting Agency

The Federal Trade Commission is responsible for this law and it only focused on certain types of information to be found in the reports.  The following pieces of information are not covered by FCRA:

1. criminal or court records, when obtained from the state agency that is responsible for providing the public with this information; and
2. drug testing results, when directly provided by the lab to the employee.

The court and drug testing labs are NOT consumer reporting agencies for the purposes of this law.

The key to this law has to do with from whom you obtain the reports from.  This law only cares about if you obtain information from an entity that makes its business from providing the protected information.  For example, if you have a job applicant and you directly contact their prior employer for information that does not make their prior employer a consumer reporting agency.  Likewise, if the job applicant lists references, their professors, colleagues, and the like are not furnishing you with consumer report.

You, the employer, have to make very specific disclosures to applicants/employees at these time frames:

1. before getting the report
2. before make an adverse decision (includes denial of employment, transfer, raise, promotion, etc . . . )
3. and after taking an adverse action.

A thing to note here, there are two different types of reports: consumer and investigative consumer.  They both have different and very specific requirements in terms of disclosure.   If you have questions ask an attorney or expert in the matter.

Takeaway

The main thing to take away from this section is you probably want to use these checks sparingly.  While, there are all these legal ramifications, sometimes ordering a report can just be more costly compared to a simple call based on the applicant’s reference list.  If you do decide to get a report be sure to follow specific procedures of disclosure.  Once again, if you are unsure contact an attorney to help you.

Monitoring Your Employees

For those of you have been following my blawg for a while you know that I did a series of posts on Social Media and the Law, well this section is related to that.  In general, when you monitor your employees through accessing e-mail, social networks, etc . . . you have a series of laws to watch out for.  I am only going to focus on two federal laws, but there are a series of other laws to consider as well.

Electronic and Stored Communications

The ECPA is concerned about the sending and interception of information and the SCA is focused on the storage of data. You are the employer sitll be concerned about both.

Electronic Communications Privacy Act (ECPA) governs electronic communications in the workplace that transmit data (this includes the telephone).  Specifically, Title I of the act cares about the transmission and interception of the communications.  Title II, which is known as the Stored Communications Act (SCA), protects the privacy and is focused on the access of stored electronic information.  The main concern for employers is that they should watch themselves when they begin monitoring employees through communication devices.

Employers may have the opportunity to take advantage of three exemptions in the ECPA.  They are as follows:

1. electronic communications may be monitored if a person gives consent (which an employer should obtain written consent);
2. “business extension” situation which applies to an employer that uses telephone extension to monitor employees in the ordinary course of business; and
3. the “provider” of the electronic communication service who monitors communications as a “necessary incident” to the providing or service (or to protect its rights or property) may also be exempt.

The two main exemptions pf EC{A employers should care about are: (i) consent and (ii) the oridnary course of business situations.

In general, an intercepted communication may only be used for a stated business purpose.  Once you have reasonably determined that the subject of an intercepted communication is not relevant to the business purpose for which monitoring took place the monitoring must cease and the contents of the communication disregarded.  Generally, software that merely records e-mail addresses/URLs should be legal under the business extension exception to federal prohibitions against recording without consent.

In general, a lot of the information covered in the Social Media and the Law series talks about more specific concerns employers have when monitoring social media.  However, a lot of that is relevant to this matter, as employees use the devices covered by the ECPA and SCA to use their social media accounts.

Last Word

Notice and consent are the two big concepts, if anything you should take away from today's post.

The main thing to takeaway from all this is to use NOTICE AND CONSENT.  The laws only protect a reasonable expectation of privacy held by employees.  The employee no longer as a reasonable expectation if you notify them you intend to monitor telephone calls, they have given you the right of access to their e-mail, text messages, and internet transmissions, etc . . . .  Basically, consent will cut off any claims of violating ECPA or privacy common law.  This is why having a comprehensive policy that deals with electronics, their use, and what rights employees have regarding them is important.  As stated in the Social Media and the Law, you should seek out an attorney or expert to help craft your policies or review them periodically to make sure that your procedures are in compliance.

Next time, I will focus on searching employees’ personal property (think of it like what was discussed today, but now in physical space) and HIPAA regulations with regard to employee information.  If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

—

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Draw the Law, People Issues VI: Paying Employees

Well, it’s Friday and since many people tend to get paid at the end of the workweek it’s a good day to talk about Wage and Hour laws.

So I’ll do a brief run-through of the Fair Labor Standards Act (FLSA), Hawaii Wage and Hour Law (Chapter HRS 387), Payment of Wages Law (Chapter HRS 388). So Let’s get to it.

For laws regulating wage and hour of workers we will be looking at FLSA, HRS Chapters 387 and 388, under DOL and DLIR, respectively.

Fair Labor Standards Act

The US Department of Labor, Wage and Hour Division, is the governmental agency responsible for handling FLSA issues.  It acts through the following means: creation of rules and regulations, issuance of agency opinions, conducts inspections and investigations, handles complaints, and can institute legal proceedings for matters relating to pay issues.

FLSA is going to apply to employers who have employees engaged in the act of commerce (so almost everyone). The main requirement of the FLSA is that employers are to a pay minimum wage ($7.25) to employees and to pay overtime compensation to employees who work in excess of forty(40) hours per week.  In addition, employers are to maintain extensive time records of the hours worked by their employees.  In fact, recordkeeping requirements show up in a lot of labor laws, so much so stay tuned to this blog for a discussion on that and handbooks in the future.  In addition, I do conduct seminars and training on the matter.

Some things to keep in mind of FLSA: (1) minimum wage payments; (2) overtime pay; and (3) certain workers are exempt.

Anyway, some final points to take away FLSA it also regulates heavily the use of minors (in general, those younger than 16 years old) as employees and that the following categories of employees are exempt from the application of FLSA:

1. bona fide executives;
2. administrators;
3. professionals;
4. computer employees;
5. outside salespeople;
6. as well as some industries are exempt from FLSA provisions.

Hawaii Wage and Hour Law

The Hawaii version of the FLSA can be found in Chapter 387.  There are many overlapping and similar provisions.  The main requirements are as follows:

1. pay minimum wage (both federal and state is $7.25) and overtime to employees who work forty (40) or more hours per work week;
2. maintain records – detailed time and pay for each employee;
3. provide the employees detailed explanations in their paychecks of the time worked and paid;
4. posting notice from Hawaii Department of Labor and Industrial Relations (DLIR) in a conspicuous location;
5. do not discriminate on the basis of race, religion, and sex in the payment of wages;
6. also regulates child labor (which are those that are under the age of 18, see also HRS Chapter 390);
7. applies to all employers except the state and federal governments.

For Hawaii's Wage and Hour Law keep in mind: (1) paying minimum wage; (2) recordkeeping; (3) explaining those records; (4) posting requirment; and (5) no discrimination in pay based on race, religion, or gender.

As with the FLSA, there are exempted are categories, such as employees guaranteed compensation of $2,000 or more per month, and specific groups like agricultural workers. DLIR has similar to powers as the DOL, but with respect to the enforcement of this state law.  The specific DLIR agency is the Wage Standards Division.

Hawaii Payment of Wages

Payment of wage law (HRS 388) is concerned about: (1) timing of pay; (2) withholdings; (3) payment for vacation, sick leave, and severance; (4) notification of pay rate change; and (5) once again posting notice from DLIR.

Whereas the prior two laws were concerned about who is protected by certain pay requirements, the Payment of Wages Law (HRS Chapter 388) is focused on the how.  The requirements of this law are as follows:

1. timing of payment for employees that resigned/terminated/died;
2. determines how to do withholdings from employees’ wages;
3. regulates payment for vacation, sick leave, and severance pay;
4. employers must notify employees change in pay rates;
5. and once again there is a posting of notice requirement from DLIR.

If HRS 387 applied to you, then 388 will also effect you. This law is also enforced by the same Wage Standards Division at DLIR.

Final Words

Here are some other things to make note of:

• If you own a restaurant or have a situation were your workers are getting by via tips, please be aware that Hawai`i uses a more restrictive tip credit of twenty-five cents per hour and not the federal $2.13 per hour tip credit
• The basic calculation for overtime payment is one-and one-half times the employee’s regular rate for ALL hours worked in excess of the forty (40) hour workweek under both the FLSA and Hawaii Wage and Hour Law.
• Finally, we calculating the amount of hours worked, we use a “suffered or permitted” to work test.  The employer can give permission implicitly or explicitly. An employer is not liable for the time worked by an employee if they have no knowledge or did not give permission to it. To determine this it will be asked if:

1. the employer was aware that the employee was working during the time periods in question; and
2. the employer permitted the employee to do so.

• If you have knowledge that they worked, but it was without permission you MUST pay them, but you can discipline them for working without your permission.

If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

—

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.