Hey everyone before I get to today’s Draw the Law, let me remind anyone in the Honolulu area that I will be having two talks next week.

Events

First, on Monday (12/19), come join me at The Green House Innovation Hub, a center of creativity, innovation, and coworking down in Kaka’ako. I will be talking about CAN-SPAM Act, primarily for small business and marketing points of view. I covered a little bit about it back in this post for Draw the Law. This Law Lunch will be more in-depth and starts at 12PM. Click on the links to find out.

Then the following evening, Tuesday (12/20), starting at 7PM at The Box Jelly, I will be conducting a talk about Succession Planning with fellow attorney and Estate Planner Scott Suzuki. We will primarily focus on what happens to your business and personal assets of when you are gone, and the need to plan for the future. For more information, click here.

If you are a business owner, marketer, curious about advertising or tax planning come join us down in Kaka’ako the place to be for work and play!

Draw the Law: Equal Credit Opportunity Act

So last week I talked about thinking about extending credit, and that you would need a policy and application. Moreover, when you advertised about this credit application process you would be regulated by the Truth in Lending Act (TILA). Today I turn how you must treat a consumer’s  credit application under the Equal Credit Opportunity Act (ECOA).

What is ECOA?

ECOA is a law that prohibits entities that extend credit from discriminating against certain aspects of the applicant.

What are those Factors?

If you are familiar with human resource management or remember the prior discussion on Employee Protection laws, then you can kind of guess what factors ECOA protects.

The factors you are prohibited from considering when deciding whether to extend credit or not are as follows:

  • Race
  • Color
  • National Origin
  • Sex
  • Marital Status
  • Age
  • Receipt of Public Aid
  • Exercise of the Person’s Legal Rights as a Credit-Seeker

Age? Does that mean I have to Give Credit to a 14-year old?

No, age as a factor is not a straight-forward analysis; first, the person has to have reached the age of majority (which is 18 in most states) to be protected by ECOA. With that being said, from the age of majority and up, you as the credit grantor cannot discriminate based on the applicant’s age, whether young or old. However, you may be favorable toward older people and may consider their future income stream. Furthermore, retirement complicates matters and generally you should consult an attorney if you are going to have a highly nuanced credit policy with regard to age.

Are there Factors I can Consider?

Yes, there are factors you can consider for granting credit, and they do get to the heart of the matter, which is why did you want extend credit in the first place? To make money, thus here are factors to look at:

  • Assets – what do they have as collateral? If they are asking for a huge extension and have very little to their name, where are you going to get your money if they default? Leads to the next factor –
  • Ability to Repay – what is the applicant’s current job or income source?  (usually, a mortgage lending practice and not consumer credit)
  • Credit History – how much money does the applicant owe? Do they pay bills on time? Have they ever declared bankruptcy?
  • Credit Foundation – do they own a home? How long have they been there? The ability to maintain a home and long residence there usually indicates sound money management by the applicant.


See you next week and look out for announcements for changes to this blog for 2012. If you enjoyed this post or any of my others please “Subscribe” to this blawg!

*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.

Remember that that tomorrow night is my talk with attorney, Wayne Chi, on the legal issues surrounding crowdfunding. Here is the information on that:

  • Summary: Need capital fast? Have a hot idea for a product or service? Don’t want to deal with the bank or institutional investors? Are you curious about crowdfunding? This talk will feature Wayne Chi, startup attorney licensed in Hawaii and California and Ryan K. Hew, local small business attorney. Wayne brings experience from the area known for startups and even has done a project related to crowdfunding. They will discuss the legalities and some of the issues of turning to crowdfunding as a vehicle for raising capital. (45 min. talk, 15 min. Q&A)
  • Time: Talk starts at 7:00 PM and goes for an hour with Q&A afterward
  • Suggested Price: $20 for non-members, $15 for members
  • Location: 703C Kamani Street. The Box Jelly popup coworking space is located inside the contemporary furniture store, fishcake.

Sign up on Facebook.

In addition, with all my posts on disclaimers I wanted to share these silly disclaimers with you all.

Hey everyone, I will be conducting another talk at Hawaii’s First Coworking Space, The Box Jelly this upcoming Tuesday (11/15) from 7:00 – 8:00 p.m. However, this time I will not be alone and will have attorney Wayne Chi with me, who is both licensed here (in Hawaii) and the state of California. Wayne also does a lot of entrepreneur work and has experience with crowdfunding.
If you recall I briefly talked about crowdfunding in this Draw the Law post and touched upon it again when the SEC cracked down on two guys trying to raise money for their beer business in this post.

This should be a really good talk for those of you trying to think of new ways to get some resources for your business. Here is further information:

  • Summary: Need capital fast? Have a hot idea for a product or service? Don’t want to deal with the bank or institutional investors? Are you curious about crowdfunding?
  • This talk will feature Wayne Chi, startup attorney licensed in Hawaii and California and Ryan K. Hew, local small business attorney. Wayne brings experience from the area known for startups and even has done a project related to crowdfunding. They will discuss the legalities and some of the issues of turning to crowdfunding as a vehicle for raising capital. (45 min. talk, 15 min. Q&A)
  • Suggested Price: $20 for non-members, $15 for members
  • Location: 703C Kamani Street. The Box Jelly popup coworking space is located inside the contemporary furniture store, fishcake.

If you have Facebook sign-up here. If you do not have Facebook, contact me or The Box Jelly for further information or questions.

Just a reminder, today’s topic of choice for legal information at KHON2’s Actionline will be landlord-tenant issues. If you have questions about what to do in Hawaii please call. Today is my volunteer spot, as well as two great attorneys from Goodsill Anderson Quinn and Stifel. For more info check it out here.

For Everyone –

Just a reminder today begins the HSBA Young Lawyers Division volunteering at KHON2 News Actionline call center. Volunteer lawyers will be providing legal information on the following:

  • Tuesday, October 25, 2011 – Bankruptcy and Loan Modification
  • Wednesday, October 26, 2011 – Landlord/Tenant
  • Thursday, October 27, 2011 – Divorce with Custody/Child Support

I conducted an interview regarding Landlord-Tenant issues, such as, issues before signing a rental agreement, what a landlord can do with security deposits, and handling smoking neighbors. If you have similar issues please call tomorrow to speak to a volunteer attorney.

Please call the studio between the hours of 11:00 AM – 1:00 PM at 591-0222. For further information click here.

For Attorneys –

There is a Pro Bono Fair today at the Hawaii State Supreme Court.  The YLD will have a booth, so if you are interested in helping or volunteering for future projects please come down and check it out.

For further information click here.

Thank you for everyone who participated in voting for the subject matter of the next talk. After Social Media and the Law it seems everyone is still craving to hear about Intellectual Property.
So the next talk at Hawaii’s first coworking space will be “Protecting Your Brand: An Overview of Intellectual Property Law.” Here is the rest of the important information:

  • Location: The Box Jelly, located at Fishcake Furniture Store – 307 Kamani St.
  • Date: Tuesday, October 18th,  2011
  • Time: starts at 6:30 p.m., talk begins 7:00 p.m. and ends at 8:00 p.m., Q&A to follow
  • Description: The price of this talk will be $10 for members of The Box Jelly and $15 for non-members. A brief overview of intellectual property laws from the perspective of small business. Basics of trade/servicemark, tradename, trade secrets, copyright and patent laws will be discussed and the steps a business can take when navigating IP situations. Materials included.

In addition, I will be doing the Social Media and the Law talk, again on the following week on Monday, October 24, 2011 for all of those you that expressed an interest, but could not make it. The talk will follow the same format as the one just mentioned. Same starting/ending time, location, and price.

Also lookout next week on the Aloha Startups website, as I will be contributing a special post about the IP topic.

Hey Everyone,
As some of you know I have recently covered Business Entity Formations and Social Media and the Law (both with a small business perspective) as 1-hour long talks at Hawaii’s first Coworking space, The Box Jelly.  Well, for October’s new topic we are letting you decide!

We (The Box Jelly and me) will be conducting polls on my blawg and Facebook, and The Box Jelly’s Facebook page. We will put together the numbers and you, the people, will  have decided what I will focus on for the next talk.

So vote now!

[polldaddy poll=5550649]

*Intellectual Property is a large topic, and if this is selected, just know that the first talk will be a primer/overview of IP issues, and that more in-depth talks on Copyright, trademark, trade name, and NDA/NCAs will follow.

Hey everyone,
I will be doing a brief 30-45 minute talk on business entity formation tomorrow night (Wed., 9/21).  It will be on some of the topics that you have seen in the Draw the Law series.  It is primarily geared for people thinking of starting a new business and things to consider for planning on the legal end of things.

Info on Business Entity Formation:

  • Where:  The Box Jelly, Hawaii’s first coworking space
  • When: 9/21 starting at 6 – 7 pm – after the talk there will be time for Q&A and networking
  • Price: The cost of the presentation is a mere $5.00 and if you’d like some specialized materials that go with the presentation that will be an extra $3.00.

I hope to see you there, but subscribe to my blawg, as I will be doing more talks at The Box Jelly and other locations in the future.

Professional Services Social

As an Oahu Director of the Young Lawyers Division I would like to let you also know that the YLD and the Shidler School of Business Alumni Association will be putting on their Professional Services Social this Thursday (9/22). It will be at Ka Restaurant and Lounge and it begins at 6 pm.

Please consider attending and to sign-up or get all the information check it out here.

For the rest of the week check back, as I will be doing a post about my Leadership Institute visit with some of the State’s public servants from the “We the People” program set-up by former representative and managing director of Honolulu City and County, Kirk Caldwell.

Also Draw the Law will be on Thursday, as I will be at the Hawaii State Bar Convention all day Friday (and who knows I may get some tweets in, so follow me on Twitter @Rkhewesq).

See you later!

-RKH

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.

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.