Mirror of Justice

Hawaii Labor Law and Employment Law Update: Hawaii Card Check Bill Passes–Bills’ Fate in Question as it is Transmitted to Governor Lingle

July 17th, 2009 at 07:07am Under Labor Law

Hawaii Card Check Bill Passes:  Bills’ 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 Governor’s 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 “card check” 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 Obama’s push for passage of the Employee Free Choice Act (“EFCA”).  Like the recently passed Hawaii bill, generally, EFCA would require the National Relations Board (“NLRB”) 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 parties’ 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:  http://www.capitol.hawaii.gov/session2009/bills/HB952_CD1_.htm

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com

National Origin Discrimination, Labor Law, and Employment Law in Hawaii: Employers Increasingly Facing Litigation over English-Only Rules

July 15th, 2009 at 01:06pm Under Labor Law

National Origin Discrimination, Labor Law, and Employment Law in Hawaii:  Employers Increasingly Facing Litigation over English-Only Rules as More Complaints are Filed with the EEOC

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.

The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination.  

Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise.  Many of these claims arise from employers promulgating English-Only policies.  In the EEOC’s view only the most limited policies do not violate Title VII.

Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.

According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often.  In April 2009 the EEOC and the company settled for $450,000.

Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination.  Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their “ancestry.” However, as a practical matter “ancestry” and “national origin” are synonymous under Hawaii law.

Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person’s ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.

Both the EEOC and the Hawaii Civil Rights Commission (“HCRC”) have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.

The EEOC and HCRC’s regulations presume that blanket English-Only rules are per se unlawful.  Their position also is that limited English-Only policies are lawful only if justified by business necessity.  2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy: 

Employers with English-Only rules should also consider doing the following:

Additional information may be accessed here: www.eeoc.gov/policy/docs/national-origin.html#VC.

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com