July 17th, 2009 at 07:07am
Under Labor Law
Hawaii Card Check Bill Passes:Â Billsâ Fate in Question as it is Transmitted to Governor Lingle
A bill which will allow unions to organize agricultural employers without a secret ballot election, HB 952 CD1, was passed on May 8, 2009, by the Hawaii Legislature. Governor Lingle will have until June 30, 2009 to issue a veto message.
If Governor Lingle vetoes the bill, the Hawaii Legislature can override the Governorâs veto by obtaining a 2/3 majority vote in both the House and Senate. Based on her previous history of vetoes, it is likely that Governor Lingle will veto the bill.
The âcard checkâ bill amends the Hawaii Labor Relations Act to require an employer to recognize a union as the bargaining representative of its employees if it is presented with union authorization cards signed by a majority of employees in an appropriate bargaining unit.
The card check bill, if not vetoed by Governor Lingle, or vetoed but overridden by the legislature, would apply to agricultural employers and certain small businesses exempt from the coverage of the federal National Labor Relations Act and effective July 1, 2009.
The card check bill closely mirrors President Obamaâs push for passage of the Employee Free Choice Act (âEFCAâ). Like the recently passed Hawaii bill, generally, EFCA would require the National Relations Board (âNLRBâ) to certify a labor union as the exclusive bargaining representative of employees through union authorization cards signed by employees, without the benefit of a government-supervised, secret-ballot election, as long as 50% plus one of an appropriate bargaining unit sign the cards. Critics contend that among other problems with EFCA, the card check system is prone to the use of intimidation and peer pressure by union organizers.
In addition to the potential of doing away with secret elections, HB 952 CD1 limits the card check provision to employers with annual gross revenues of $5 million dollars or more, and provides that if an employer and union negotiating for an initial contract do not reach agreement within 110 days through bargaining or mediation, they shall be referred to an arbitration panel, which will establish the terms of the partiesâ collective bargaining agreement for a period of up to two years. Finally, the bill includes new penalties of up to $10,000 for unfair labor practices.
A copy of the final bill transmitted to Governor Lingle can be accessed here:Â http://www.capitol.hawaii.gov/session2009/bills/HB952_CD1_.htm
Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com
Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies.
Visit him at http://www.amaguinlaw.com and http://employmentlawyerhawaii.com
July 12th, 2009 at 03:01am
Under Uncategorized
HAWAII EMPLOYMENT LAW BASICS: PREGNANCY DISCRIMINATION LAW UNDER FEDERAL AND HAWAII LAW
INTRODUCTION:
Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide. The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.
Accordingly, it is clear that employers need to become more aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.
FEDERAL LAW AND HAWAII LAW ARE SIGNIFICANTLY DIFFERENT WITH RESPECT TO PREGNANCY DISCRIMINATION:
Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to limit, segregate or classify employees or applicants for employment in any manner which deprives or tends to deprive an individual of employment opportunities because of the individual’s race, color religion, sex or national origin. Generally, the law covers all employers engaged in an industry affecting commerce with 15 or more employees.
Title VII was amended by the Pregnancy Discrimination Act (“PDA”) to prohibit all forms of discrimination in employment based on pregnancy, childbirth, or related medical conditions. Under PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances.
Under the PDA, pregnant employees must not be treated less favorably than a non-pregnant employee under similar circumstances. Thus, an employer that refuses to hire or promote a female because of pregnancy has violated PDA. Also, an employer that forces a pregnant employee to take a leave of absence despite being able to perform her job has violated PDA. Conversely, it is unlawful to force a pregnant employee to continue performing work she is incapable of doing due to her pregnant condition from which other similarly situated disabled employees are excused.
If the employee litigates her federal PDA claim the available remedies include the Court: Issuing an injunction prohibiting the employer from committing future violations of the law; granting equitable relief such as reinstatement or promotion; awarding back pay limited for a period beginning two years before the date the charge of discrimination was filed, less any interim earnings; awarding front pay, and; reasonable attorneys’ fees.
In addition, the total amount of compensatory and punitive damages are limited depending on the size of the employer. Specifically, the caps are set by statute as follows:
Number of Employees Cap
015-100 employees $ 050,000
101-200 employees $ 100,000
201-500 employees $ 200,000
500 plus employees $ 300,000
Under the Hawaii Employment Practices Act, HRS Chapter 378, covered employers are prohibited from discriminating in public and private employment on the basis of “sex.” Like PDA, Hawaii law prohibits discriminating against women in employment because of “pregnancy.”
There are significant differences between PDA and Hawaii law. First, the Hawaii statute covers any employer with “one or more” employees, thus affecting many small business owners that perhaps lack resources to fully educate themselves on the law or implement risk reduction policies and procedures.
Second, while it is clear under federal law that individual employees cannot be held individually liable for adverse decisions deemed unlawful under the law, there is virtually uniform authority amongst state court judges that no such protection is afforded under state law. Thus, supervisors along with the employer are commonly named as individuals in lawsuits filed by plaintiffs in Hawaii state court pursuant to HRS Chapter 378.
Third, while federal law simply requires the employer to treat a pregnant employee as it would similarly situated non-pregnant employees under Hawaii law employers are required to do much more. Specifically, Hawaii law requires by regulatory mandate that employers “make every reasonable accommodation to the needs of the female affected by disability due to and resulting from pregnancy, childbirth, or related medical conditions.”
Regardless of the policies applicable to non-pregnant disabled employees, female employees who are disabled due to pregnancy, childbirth, or related medical conditions must be permitted to take a leave of absence, paid or unpaid, for a “reasonable period of time.” A “reasonable period of time” is that time determined by the employee’s health care provider.
Hawaii law requires the reinstatement of an employee returning from pregnancy leave to her original job or to a position of comparable pay, without loss of accumulated service credits and privileges. Prior to the employee’s return to work the employer may request a physician’s certificate approving her return to work.
Finally, and in many cases most significantly, under Hawaii law a court may award unlimited punitive and compensatory damages in cases brought under HRS Chapter 378.
CONCLUSION:
PDA and the Hawaii Employment Practices Act are significantly different in scope and breadth. Under federal law employers must remember to treat pregnant employees the same as similarly situated employees. However, under Hawaii law employers are required to afford pregnant special protections regardless of how similarly situated employees are treated. Employers should seek counsel if they have questions regarding the law.
Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com
Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.
Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation. His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes. As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.
Mr. Amaguin litigates a wide range of civil cases involving common law and statutory claims. He litigates claims involving torts, right to privacy, sexual and other forms of harassment, wrongful termination, discrimination and retaliation. He regularly provides counsel on Title VII, the Hawaii Employment Practices Act, FLSA, HIPAA, FMLA, ADA, ADEA, COBRA, non-competition agreements, contracts, workplace investigations, civil rights, whistleblower, drug-testing, and all other statutes that apply to Hawaii employers.