As a transactions attorney that drafts agreements for businesses I have found that explaining what certain clauses do is beneficial to the client and organization.  Therefore, today’s Law in the Brief covers Act 139.   Also lookout in the future I will be doing little posts on boilerplate language to help you understand what is going into an agreement.

General Overview

This new law aims to help consumers by regulating the language used for contracts with automatic renewal clauses.  Act 139: Relating to Contracts, requires the following:

  • use of clear and conspicuous disclosure of automatic renewal clauses and cancellation procedures for all consumer contracts and offers with an automatic renewal provision and additional disclosure for contracts with a specified term of twelve months or more.

This new law will be assigned a number under Chapter 481 of the Hawaii Revised Statutes, which is the Fair Trade Regulations chapter.  Specifically, it will be under Part I, the Unfair Practices Act.  Currently, there are about eleven states that have enacted similar disclosure requirements at the inception and immediately prior to the renewal of the contract type of laws.

The Rationale

The lawmakers hope is that with the use of “clear and conspicuous” language (as defined by the Federal Trade Commission’s standard) that this gives consumers a change to be fully apprised of the situation.  Namely, that there is an automatic renewal clause and what steps they have to take in order to stop the contract from renewal.
Basically, this is an attempt to shift the burden back to the entity issuing the contract so that consumers may not be bound to a contract for a period longer than they anticipated or finding themselves stuck with something they do not want.

Exemptions

Act 139 applies to almost everyone selling things to people under a consumer contract that is for a specific term of more than one month and contains n automatic renewal clause for a term of more than one month.  However, there are some exemptions made to certain entities:
  1. Financial Institutions, for the activities regulated under under Chapter 412);
  2. Insurers, for the activities regulated under their respective chapters, as follows:
  3. Insurance companies(Chapters 431);
  4. Mutual benefit societies (Chapter 432);
  5. HMOs (Chapter 432).

Last Word

If you are an organization that does not fall under the exemption you will need to take a look at your agreements and your processes of notification. While, the law is in effect, the substantive portion does not go into effect until next year, July 1, 2012.  Therefore, it gives you some time to review.  So consider the following questions
  1. Do you let the consumer know what the terms of automatic renewal are?
  2. Is it clear and conspicuous in the agreement?
  3. Do you have a system that monitors contracts and sends out notices when their term is almost up?
These are some of the things to think about and have an attorney conduct a legal audit and review of all your contracts so you can update them.  By the way, if you don’t know what “clear and conspicious” means in terms of written agreements this is the definition:
  1. means in larger type than the surrounding text;
  2. in contrasting type, font, or color to the surrounding text of the same size; or
  3. set off from the surrounding text of the same size by symbols or other marks in a manner that clearly calls attention to the language.

If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  I would recommend subscribing, as I will be doing the Boilerplate Blurbs (explaining regularly used clauses) sporadically.  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.

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.

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).

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 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 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

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.

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

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.

No new Law in the Brief post today, instead I am going to talk about something related to my Draw the Law from last week.  The post on Paying Employees was very timely given the ruling that the 9th Circuit Court of Appeals issued last week Friday.

FLSA Exemption: The Learned Professional

Recall that I discussed the Fair Labor Standards Act (FLSA), which has to do deal with payment of wages, overtime, and exemptions to those situations.  Under the Act, remember that certain types of employees are exempt from the requirements.  For example, if you truly are an executive your employer need not pay at the minimum wage rate or pay at the overtime rate because your status is exempted from the FLSA.

Learned professionals are also exempted like executives. Typically, doctors, lawyers, teachers, nurses, scientists, writers and artists are considered “Learned Professionals.

To qualify for the Learned Professional employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Source: DOL’s website.

The Case: Solis v. Washington

Why do I bring this all up?  Well, on the same day as Draw the Law, the U.S. 9th Circuit Court of Appeals (which Hawaii falls under) issued its decision in Solis v. Washington.

In this case the U.S. Secretary of the Department of Labor (DOL) sued State of Washington’s Department of Social and Human Services (DSHS).  Remember, how I talked about that the DOL has enforcement powers?  Well, they can use those enforcement powers in a suit against a state agency as well. The DOL felt that DSHS was wrongly categorizing its social workers as Learned Professionals, thus exempting having to follow the FLSA pay requirements.

However, DSHS contended that their social workers job requirements met the 4th criteria of advanced knowledge must be customarily acquired by prolonged course of specialized intellectual instruction.  The US District Court agreed with the State of Washington, but the DOL appealed and the 9th Court of Appeals reversed this ruling.

B.A. in ANY Field Not the Same as a Degree in a SPECIFIC Discipline

The decision to side with the DOL for the 9th Circuit really turned on the fact that the social worker positions required only a degree in ANY one of several diverse academic disciplines or sufficient coursework in ANY of those disciplines.  The position requirement was not contingent upon a degree in a SPECIFIC discipline.

To fall under the exemption for Learned Professional, the position in question really needs to require a degree in a specialized course of study it must be sufficiently specialized and relate directly to the position.  Therefore, when the education requirement is satisfied by degrees in diverse fields, such as anthropology, education, and criminal justice, but does not call for a course in specialized intellectual instruction.   Even more problematic for DSHS was that they casted an even wider net for the position, by accepting applicants with other degrees so long as they have sufficient coursework in any of those fields.

To read the whole opinion click on: Solis v. Washington.

Takeaway

What you should takeaway from this case, if you are an employer:

  1. DOL enforces the FLSA and takes seriously the use of the exemption (even in the case of state agencies);
  2. Learned Professional is an exemption that can only be claimed if the job requirements are highly specialized and specific;
  3. A higher learning of education is not enough to satisfy the 4th criteria of the Learned Professional requirements;
  4. A specialized and directly related coursework requirement does satisfy the requirement.

Lastly, for employers, whether they be state agencies or business entities, need to take seriously the posting and hiring based on job requirements if they are going to claim an exemption from the FLSA.  Recall that FLSA also exempts executives, administrators, computer employees, outside salespeople, and other industry-specific workers.  You should seek professional or expert advice when designing job requirements if you expect to exempt that position from standard FLSA pay provisions.

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.

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.

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.

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.

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

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.

What is a Sustainable Business Corporation or B-Corp?

You can now find Hawaii’s Sustainable Business Corporations at Chapter 420D of the Hawaii Revised Statutes. (UPDATED 10.08.12)

Act 209 Establishes an organizational and regulatory framework for sustainable business corporations.  “Sustainable business corporations” or “benefit” corporations (b-corps) are a specialized corporation committed to sustainable practices.  Their intended purpose is to develop and commit to sustainable practices and produce a public benefit.

Consider it a marriage between for-profit corporations with the public good that a non-profit is supposed to provide.

Some Specifics

Filing and Maintenance

Basically, you or your attorney would file the normal Articles of Incorporation with the Department of Commerce and Consumer Affairs (DCCA).  However, to put in the sustainable part an attachment would have to be filed that has a statement declaring that this a sustainable business corporation.

In general, when maintaining a B-Corporation you are following everything set forth by Chapter 414 (the Hawaii Business Corporation Act) of the Hawaii Revised Statutes.  The additional paperwork necessary will come from whatever chapter number the Legislative Reference Bureau decides to assign this Act.

Benefit Director and Benefit Officer

In addition, a sustainable business corporation is required to have a benefit director.  It also may choose to have a benefit officer. The role of these positions is to maintain that the company is following its goals for benefit and keeps record of it.  The benefit officer prepares the annual benefit report using a standard developed by a third party.  This third party acts sort of like an accounting firm for a corporation that publishes its financials.  The third party determines whether or not the goals are being met.

DCCA’s Role

The government’s role with a benefits corporation is minimal and only ministerial. DCCA will accept the filing and you only need interact with it and other governmental agencies, as you would normally do with a regular corporation.  The prime example is this:  a corporate annual report needs to be filed with the DCCA, but the benefit report that needs to be produced is for the shareholders.  The benefit report does not get filed with DCCA.   In fact, the hope of this Act is that the corporations make a commitment to sustainable business practices and produce communal benefit and that the shareholders who agree to invest in them police themselves.  Government role is kept to a minimal.

Last Word

If you are interested in specifics about creating a B-corporation you can contact me or if you want to know what kind of resources or generalized information check out Certified B Corps.  It is a good site to get a grasp about what a B Corps is and what is going on a national level.  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.

Earlier this week, I discussed how Hawaii Act 123 of 2011 increased the maximum penalties by 10% for HIOSH violations.  Well, today we shall cover the more substantive parts of the law.

General Overview

The Occupational Health and Safety Act (OSHA) and the Hawaii Occupational Safety Health Law (HIOSH) primarily cover an employer’s responsibility for keeping a safe and healthy work environment.

OSHA falls under the US Department of Labor and is the responsibility of the Occupational Safety and Health Administration.  They set the standards, enumerated by an extensive list of regulations.   The Department, through the Administration agency, is responsible for everything involved with OSHA. This includes activities like site inspections, issuing citations, conducting hearings, and directing/enforcing remedies.

What OSHA Requires

Under OSHA employers must:

  1. furnish each employee a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm;
  2. comply with occupational safety and health standards set forth by the regulations promulgated under the law;
  3. keep records as prescribed by the regulations (such as records of accidents, injuries and deaths);
  4. post notices informing employees of their protection and the employers’ obligations under the law; and
  5. refrain from discriminating against employees who exercise their rights under the Act.

The employers that are covered: business affecting commerce (includes professional, agricultural, nonprofit and charitable organizations) –  state and federal governments are excluded.

HIOSH

Several states, including Hawaii, have state-level plans that work through the incorporation of OSHA language, to administer the law.  So while Department of Labor and Industrial Relations (DLIR) may enforce the safety and health violations through the HIOSH office, federal OSHA regulations are often cited when issuing fines or penalties against non-compliant employers.

Differences: the Hawaii version specifically states that employers are to provide employees with safety devices and safeguards in addition to the other requirements.  In addition, ALL employers are to comply with the law.

I will now touch upon some more salient features in a quick, general way, as the law is much too large in scope to cover in a post.  The complexities of compliance with OSHA and HIOSH are important, and you may want to consider a formal training or discussion with attorney or expert.

Safety and Health Program

HIOSH requires all employers with 25 or more employees to maintain a written safety and health program.   If you are in construction and have fewer than 25, but do work that is worth an excess of $100,000 you must have a written program as well.

Recordkeeping

There are many standards, but one of the most applicable standards requires employers with more than 10 employees, to maintain a chronological log of recordable occupational injuries and illnesses with a detailed supplementary information about each occurrence.

Reporting

The purpose of that recordkeeping, is that for injuries and illnesses that result in fatality, hospitalization or 3 or more people, or property damage in excess of $25,000 must be reported to HIOSH.  This includes situations where the employer has fewer than 10 employees.

Posting and Labeling

Every employer has to place in a prominent location information regarding employees’ rights and obligations under OSHA, an annual summary of recorded injuries and illnesses.  Other posting requirements are hazard signs and the proper labeling that entails.

Training and Education

Generally, every employer has to establish some sort of occupational safety and health program, which includes training to provide employees instructional information on safe work practices.  I’d like to bring up workplace violence here because a lot of people have the impression that OSHA and HIOSH is only situations with construction, chemicals, or the like, but the specifics of the law is that the employer is to create a safe environment for the employees.  This includes a work environment free from violence.  Thus, criminal conduct or dangerous personnel situations also do fall under workplace safety.  Therefore, when you consider training and education it should be much broader than instructions on yellow hazard signs and warning labels.

Final Words

There is more to say about HIOSH and OSHA, but those specifics can be handled by an attorney, specialist, or compliance officer.  There are resources available on both the OSHA and HIOSH websites.  So check them out.  Ultimately, the point of all this is so that employers are responsible for keeping their workers safe and to do that requires a lot of planning and implementation of procedures.  The goal is to pass safety inspections and avoid being cited or even possible imprisonment (check out this week’s Law in the Brief).

If you have more questions about the inspecting and monitor, dealing with the Department, appeals, and in general further details of the law ask an attorney or contact the department.  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.

I got a couple of responses of how interesting the Leadership Institute subject matter was last post, so I decided to impart some other interesting ideas and advice I have learned from my fellowship. So here goes.

I was born and raised on Oahu and it was only until college that I lived away for any significant portion of time away from “the Rock” as it is affectionately known.  However, growing up I quickly learned the odd ritual of asking the following three questions to people I would in Hawaii.  They are as follows, in order:

  1. What highschool did you go to?
  2. What year did you graduate?
  3. Do you know [insert name of person you know that might the person you are questioning]?

I never knew the subtleties of why I did it, but I knew it gave me some comfort and was always a good icebreaker for meeting new local people.  This even followed me as I updated my resume for after law school, as I intended to return home.  I remember the Career Services Office staff looked at me funny, and asked why would I put my highschool on my resume.  My only response is that it mattered when applying for jobs in Hawaii, and I kind of got the look of course it matters only in Hawaii because it is a odd state.  I left it that, and left my highschool on my resume.

Well, during one of the Leadership Institute seminars former Judge Thomas Kaulukukui Jr. explained to me why it is the case.  The basic gist of what I learned from Judge Kaulukukui is that you need to get to know people before you serve them as a leader.  How can you effect change if you have no idea about the people you are dealing with?  So it is in Hawaii, a pre-dominatly Pacific Islander/Asian culture, where we want to know who you are because it matters to us.

Now, this isn’t the “who you know” game where you spend time one-upping the other person.  No, it is the “who you know” as in what is your background (who are you and where do you come from).  Let me explain further using the ritualistic three highschool questions.

  • “What highschool did you go to?” represents the locality question, idenityfing where is the place that you come from and what was your environment.
  • “What year did you graduate?” represents the time component of what generation and what time did you come of age, as this shapes our identity and formation as an adult.
  • “Do you know [insert person that you know, that you think the other person may know]?” attempts to get to know your people, who is your group, who are your friends (your clan, so to speak).

Now, if this seems foreign to people of the continental United States it should be apparent to those who have European ancestry that in medieval times you identified your lineage.  Where do you think fantasy novels like Lord of the Rings and A Game of Thrones came up with “I am so-and-so, son of XYZ.”?  Before, you think I bring out my dorky readings for no reason, be aware that our legal system evolved from medieval England.  They used have trial by combat, all that has happened is we replaced the suits of armor with suits and ties, and the swords with word-filled motions.

So where does this leave us?  Remember I said that some of the judges from the Meet the Bench write-up felt be true to yourself, well that applies here.  Your personal background gives context and history and makes you an individual, so when you do business in Hawaii we care who you are.  It may seem to make doing deals longer, but it does mean we are focused on relationship building, which means longer lasting partnerships.

Also if you read through all this and are still wondering where I went to highschool and what year did I graduate, well here is the answers:

  • I went to Punahou, and I graduated with the class of 1999.
  • I will leave the last question to you if you ever meet me to ask do I know “so-and-so.”

Due to Rick’s question in my Draw the Law ADA post, I decided share this information with you all, as I know some of my readers like to coffice at Starbucks.
Anyway, Starbucks has recently agreed to settle a dispute with the EEOC over an ADA violation.  The situation was that Elsa Sallard applied for a barista job at a Starbucks located in El Paso, Texas.  The job did not require prior experience.  Ms. Sallard is of small stature due to dwarfism (which is considered protected under the ADA).  Therefore, she suggested as a reasonable accommodation the use of a stool or a stepladder for her to reach the counters and coffee machines.  The manager there disregarded her suggestion, and stated that it would be “dangerous” then terminated her after orientation.

The EEOC felt other wise and here we are now with Starbucks paying out a $75,000 settlement and must train its managers and supervisors on American with Disabilities Acts with specific regard to the amendments.  Remember I mentioned in the Draw the Law post that while the language looks the same it significantly expanded the definition of “disability.”

In addition, the EEOC attorney cited that Starbucks is known for its inclusive nature toward its customers and that its behind-the-counter attitude should match.

So it is always good to do training and compliance on changes of the law before they go effective or right around before you have to settle $75,000 for not providing someone a stool to do their job.

For more information see the EEOC’s press release here.  Thank you to Rick for the question.

Hey everyone, today’s Law in the Brief will be short and simple, but I am connecting it to this Thursday’s Draw the Law so check back later. So do you remember that explosion out in Waikele that killed 5 workers?  Well, that is the kind of situation that might be fined under the Act we are discussing today depending on what investigators discover.  That is the type of situation that falls under Hawaii Occupational Safety and Health Law (HIOSH), which means the company could face severe penalties for violations.

What: Act 123 of this year’s state legislative session has increased the fines under Chapter 396 (HIOSH) of the Hawaii Revised Statutes.  Basically, this is the state of Hawaii’s version of the Occupational Safety and Health Act (OSHA). HIOSH is administered by the Hawaii’s Department of Labor and Industrial Relations (DLIR). So this week’s Draw the Law will discuss OSHA and HIOSH together.

Specifics:  The law makes a 10% increase across the fines found under HRS §396-10.  Here are the specifics of the penalties for an employer or other concerned parties:

  1. if cited for a serious violation, and non-serious one as well – $7,700;
  2. if cited for violating the posting requirements – $7,700;
  3. for willful or repeated violations of 396 – $5,500 – 77,000 for each violation;
  4. if convicted for willful or repeated violations that results in an employee death it is $77,000 for the violation and a possible imprisonment term;
  5. if you discharge or discriminate against employee for asserting rights under 396 it is a $1,100 per violation;
  6. if someone without authority from DLIR Directors gives advanced warning of a surprise inspection it is $1,100 and possible imprisonment;
  7. for falsifying records, certification and documentation it is $11,000 and/or possible imprisonment;
  8. for criminal offenses against employees of the State doing their job it is $55,000 added to the maximum fine for a class A felony and ten years added to the term;
  9. for Class B felonies it is $27,500 added and a five years;
  10. for Class C felonies it is $11,000 added and three years; and
  11. for misdemeanors and petty misdemeanors it is $2,200 added and 1 year added to the term.

Last Word:  So in this economic downturn can you face increase 10% penalties?  That could be up to an extra $700 for a serious violation.  Are you ready to afford extra penalties and possible imprisonment? If you are trying to comply with safe and health standards contact an attorney or a safety specialist to help you point out problems in your business to avoid violating HIOSH.  In addition, return to this Blawg Thursday to check out Draw the Law.

If you like 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.

 

 

As some of you know I was fortunate to be a fellow for this year’s Hawaii State Bar Association’s Leadership Institute.  We have monthly meetings with various attorneys and leaders throughout the State of Hawaii to discuss leadership attributes.

I’ve always been curious about leadership skills, and that was part of the reason I obtained an MBA to take classes on leadership and management.  Anyway, yesterday was the “Meet the Bench” focus study where the fellows were introduced to the following judges and attorney:

  1. U.S. District Court Judge Susan Oki Mollway
  2. Magistrate Judge Barry Kurren
  3. Bankruptcy Attorney Susan Tius
  4. Chief Justice Mark Recktenwald
  5. Justice James Duffy
  6. Justice Sabrina Mckenna
  7. Intermediate Court of Appeals Judge Alexa Fujise
  8. Judge Steven Alm
  9. Judge Bert Ayabe
  10. Judge Virigina Lea Crandall

And our facilitator of the day was retired Judge Riki Amano.

I’ll have to be honest, I was skeptical at first of how much I would get out of this session due to the fact that I am transactional and compliance attorney that focuses on small business.  However, it was a fascinating day of meeting with the judges and getting their personal view of what makes a good attorney and leader.  In addition, it was interesting how they all kept touching on some of the same themes and ideas, despite largely differing backgrounds. I was able to distill some themes and guidelines, which I think as a person, attorney, and businessman that I will strive to follow.

Anyway, as I believe in sharing information and insight through social media I am going to highlight some of the nuggets of wisdom passed on by these learned jurists.

In no particular order or from a single judge here is what I got out of it:

  1. be prepared – sounds cliché, but it is really true and for judges they can tell who isn’t prepared;
  2. don’t lie or play hide the ball/be credible – most of the judges find that if for whatever you aren’t prepared you should be honest about it, as they hate it when an attorney lies or misdirects – it hurts your credibility in the long run;
  3. have perspective/be respectful – one of the judges wanted us to understand that “your emergency is not my emergency” – being rude, demanding, and such is not going to change the fact that other people have their things that they have to do;
  4. be true to yourself – this goes back to the credibility thing and many felt it shows your character and lets people know what you are going to do;
  5. meet with everyone – in a management situation, you should at  least make an effort to meet all the people you are managing, it helps for you to create buy-in, anticipate issues, and shed light on problems;
  6. do things that interest you – you never know where you will wind-up, and therefore, try for jobs, opportunities, and such that come your way;

(The next three are for trial attorneys, as you all always tell me great stories, so I took notes for you all!)

  1. always object and make the record – one of the judges suggested it is better to get something into the record that waive or withdraw because then it doesn’t show up; they want to see the argument and have it play out;
  2. don’t argue the whole motion – the judges all agreed they have read the brief, focus on 4-5 main points and persuade them;
  3. making persuasive arguments: (1) what does the judge NEED to know; and (2) what is the most reasonable course – give the judge a reason to side with;

(This last one is for everyone.)

  1. listen – I run into a lot of situations where someone can hear me (as I tend to speak really loudly), but they lack the comprehension part because they weren’t listening – a leader can only respond to people if they truly get what is being asked of them

Anyway, I would like give a big mahalo to the judges for allowing us to speak with them and take away from their valuable time for their stories, insights, and advice.  In addition, thanks to Judge Amano for setting this up as it was a lot of fun.  Also if all you readers are interested I will tweet or blog about the Leadership Institute, send me an e-mail and let me know!

Have an aloha Friday and good weekend!