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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.

So the option that won from the poll was to do a brief overview of employee legal issues.
As it is a huge topic, I will only really briefly touch upon large aspect of the employer-employee relationship.   To keep this as brief as possible, I am going to focus on just employment of non-unionized employees.  In addition, today’s focus will be about how to think about dealing with employee legal issues with a HR perspective.  I will follow-up with a couple more Draw the Laws that focus on narrower aspects of employment law it will also be poll-based.

The Puzzle that is Employment Law

In general, employment law cares about the interactions of the business with its employees.  Both the state and federal governments have created laws to regulate hiring, workplace conditions, wages, and the like.  Due to our system though we have many laws that overlap, further exceed, or just contradict with each other.   In many times, the HR function of a business is playing puzzle-maker trying to get pieces to fit together that do not quite match.

So there are multiple ways to try and figure out how to be in compliance with employment laws.  Here are some ways to cope with dealing with the law.

Size

If you are a small business, generally the owner-operator is handling the HR function (along with marketing, operations, and everything else).  Due to the fact that you are so tiny, many laws do not affect you, as the have an employee threshold.   You can kind of think of the business as a growing bubble, as you add employees the more laws the bubble comes in contact with and must comply with.  For example, most of the federal anti-discrimination laws cover employers of fifteen or more, whereas Consolidated Omnibus Budget Reconciliation Act (COBRA) is 20 or more, and something like Family Medical Leave Act is 50 or more.

Other times a law will cover an employer based on its gross annual volume of business, such as Fair Labor Standards Act (FLSA), Equal Pay Act (EPA), and the National Labor Relations Act (NLRA).

Finally, there are laws that always affect you no matter how small or big you are like Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and Occupational Safety and Health Act (OSHA).

Timing/Process

Where are you in the process of dealing with the employee?  Are you hiring a new employee?  Did you hire the employee and are now training them?  Is this an older employee that has been with the company for a while?  Or is this an employee you may want to terminate?

Certain laws come into play depending on what stage of the process you are in.  In this case, you can kind of think of the laws interaction with your business in stages with on and off switches representing what you can and cannot do at certain stages of the process.

Never Enough Time

I have barely scratched the surface of employment law, but I hope today’s Draw the Law has helped give you a couple ways to think about them.  In general, it does seem there is never enough time for dealing with this type of law.  However, there are some great resources on the web, and I have some links on my site to help out.

Plan Ahead: Policies, Procedures, and Handbooks

A business’s best tool when dealing with employment laws is plan ahead.  It will save you some stress and worry later.  For me (as seen by these Draw the Law) I like to diagram and sketch things out, as it gives you a kind of map to navigate the issues. If you feel you do not have the energy or skills it is best to hire someone to help develop strategies for you to deal with your worker issues, as noncompliance can lead to penalties by the government and lawsuits from employees.  Due to the complexity of employment laws an attorney can advise and help draft your handbooks on polices and procedures.

As always 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.

Act 34: Protecting Gender Expression or Identity in the Workplace

Business Impact: Act 34 prohibits discrimination on the basis of gender identity or expression as a matter of public policy, specifically with regards to employment.  Basically, if you or the work environment you foster is insensitive to gender expression or identity of your employees, you may face enforcement action by the Hawaii Civil Rights Commission for discriminatory practices.  Discriminating against an employee expressing their preferred gender would be the same as discriminating against women, handicapped persons, or people of a certain race.

Specifics of the Law:  This new law amends two parts of Hawaii law, Section 368 and 378.  By amending Section 368, the law gives the Hawaii Civil Rights Commission (HCRC) the enforcement power over gender identity or expression discrimination cases.  In addition, by amending Section 378, the law aims to prevent discrimination in the workplace by making gender expression and identity a protected status similar to other categories, such as disability, race, age, and sexual orientation.

What Does “Gender Identity or Expression” Mean?

As you may already know the State already protects sexual orientation from discrimination.  You may think that sufficiently covers what is known as “gender identity or expression.”  However, that is not necessarily the case.

Sexual orientation is only describing one’s preference based on the gender of the partner.  In terms of gender expression and identity, a transgender person can have any sexual orientation.  Basically, the gender status is not the same as one sexual preference.  Gender identity is one’ internal feelings of being male or female or along those lines.  Gender expression represents all of the social and behavioral characteristics associated with femaleness or maleness.

Example

Consider a male truck driver wishing to make the transition to female.  Their appearance at work continues to be more and more feminine.  Other workers, due to the change, harass the transitioning worker.  The truck driver comes to you to discuss the harassment and gender transition.  If you suspend them for this action, then you would likely  face a visit from the HCRC for discriminating against your employee’s gender expression and identity.

Bottom line:  Is your company’s policies and procedures equipped to handle this change in the law?  Does your handbook reflect the changes?  Consider the following situations for reasonable accommodation or to prevent bias in the workplace:

  • Restrooms
  • Self-identification papers, check cards, etc . . .
  • Housing and facilities like locker/dress rooms
  • Dress code

There may be other situations that you may need to safeguard from gender expression or identity discrimination.  You should consider a legal review of your work policies, procedures, and handbooks.

Next law to be covered: Act 37, allowing non-profits to take actions by ballot and electronic voting, use of electronic notice, and conduct of meeting by teleconference. 

*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.