Hawaii News & Analysis

  • Hawaii jury to decide deaf job applicant's failure-to-hire claim

    The Equal Employment Opportunity Commission (EEOC) is suing a Hawaii car dealership for failing to hire a deaf applicant. The company recently sought dismissal of the lawsuit, but a federal judge denied the request, setting the stage for a trial to decide the matter. Among the company's defenses the jury will need to consider is whether the position the applicant applied for even existed.

  • Just pay it: 9th Circuit revives California wage claims for brief 'off-the-clock' inspections

    The de minimis doctrine under the Fair Labor Standards Act (FLSA), the federal minimum wage and overtime law, says that employers do not need to pay employees for otherwise compensable amounts of time that are small, irregular, or administratively difficult to record. When deciding whether certain amounts of time are de minimis, federal courts governed by the U.S. 9th Circuit Court of Appeals (whose rulings apply to employers in Hawaii and eight other Western states) consider:

    1. The practical administrative difficulty of recording the time;
    2. The aggregate amount of time involved; and
    3. The regularity of the work in question.

    Some courts use a rough rule of thumb that daily periods of up to 10 minutes of unpaid time are de minimis, meaning employers are not required to pay employees for that time. In a recent case, however, the 9th Circuit relied on a California Supreme Court decision to find that Nike must pay its nonexempt retail employees for the time they spend undergoing "exit inspections" before they leave the store on breaks or at the end of their shifts.

    Facts of the case

    Nike has 34 retail stores in California. The nonexempt employees who work in those stores are required to clock in at the start of their shifts and clock out when they leave the store on breaks and at the end of their shifts. After clocking out but before leaving, they must undergo exit inspections by a manager. The time spent in those inspections varies from a few seconds to several minutes depending on things like whether the employee is carrying a package that must be inspected and how long the employee must wait for a manager to be available.

    In early 2014, Isaac Rodriguez, a former Nike employee, filed a class action on behalf of all nonexempt retail employees at all 34 Nike stores in California, claiming the company violated the state's wage and hour laws by not paying employees for the time they spent undergoing exit inspections. The trial court agreed with Rodriguez that he could pursue a claim on behalf of all nonexempt retail employees who worked for Nike in California from early 2010 to the present.

    However, Nike challenged the merits of Rodriguez's claims, arguing the de minimis doctrine applies to California's wage and hour laws in the same way it applies to claims under the FLSA. The trial court agreed with Nike, concluding that California should recognize the de minimis doctrine under state law. Because the exit inspections were covered by the de minimis doctrine, the court dismissed Rodriguez's claims, and he appealed to the 9th Circuit.

    Does California recognize the de minimis doctrine?

    At the time of the trial court's decision in Rodriguez's case, the applicability of the de minimis doctrine under state law was pending before the California Supreme Court in another case, but a decision hadn't been issued. By the time Rodriguez's appeal reached the 9th Circuit, the supreme court had decided the question and rejected the doctrine under state law because California's wage and hour laws are more protective of employees than federal law, and state law makes it clear that all work time must be compensated.

    Although it didn't completely rule out the possibility that there might be situations in which the time in question is so short or irregular that it would be unreasonable to expect an employer to record and pay it, the supreme court found that the much more forgiving federal de minimis doctrine doesn't apply to claims based on California's laws. The court concluded, "An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine."

    Because the trial court had explicitly relied on the de minimis doctrine to dismiss Rodriguez's claims and because the exit inspections are a regular part of employees' workday and there was evidence that they can take several minutes, the 9th Circuit panel reversed the trial court's ruling and sent the case back for further proceedings in accord with the decision of the California Supreme Court. Rodriguez v. Nike Retail Services, Inc., Case No. 17-16866 (June 28, 2019).

    Takeaway for employers

    The takeaway for employers in California is clear: Nonexempt employees are entitled to be paid for all of their work time unless, perhaps, the time in question is so trifling or happens so irregularly that it would be unreasonable to expect it to be recorded. Although the 9th Circuit's decision is limited to California law, employers in other states would do well to take note of the case, too.

    Like California, many states have wage and hour laws that are more protective of employees than the FLSA. Even under federal law, off-the-clock work is frequently challenged, particularly when it's a regular part of the workday. And in light of modern electronic timekeeping systems, it's increasingly difficult for an employer to argue that recording de minimis time is administratively difficult.

  • How to identify and minimize employee burnout

    You may have seen reports recently that the World Health Organization (WHO) has classified employee burnout as a diagnosable medical condition. While that's not exactly accurate, the group has expanded its definition of the term in its latest edition of the International Classification of Diseases.

  • They're back! Responding to 2019 no-match letters

    In March 2019, the Social Security Administration (SSA) began mailing educational correspondence (EDCOR)—also known as employer correction request (ECR) notices and formerly known as "no-match letters"—to employers that filed W-2 forms for 2018 containing at least one mismatched name and Social Security number (SSN). You should not ignore the notices. You must ensure you're complying with your obligations to resolve the errors. Failure to comply could result in an I-9 audit by U.S. Immigration and Customs Enforcement (ICE) and/or penalties from the IRS. To avoid noncompliance, you should act quickly.

  • Agency Action

    DOL takes more steps to advance apprenticeships. The U.S. Department of Labor (DOL) has announced a Notice of Proposed Rulemaking (NPRM) along with monetary awards in its continuing effort to expand apprenticeships. In the announcement, the DOL said the NPRM would establish a process for the agency to advance the development of high-quality, industry-recognized apprenticeship programs (IRAPs). A 2017 Executive Order created the Task Force on Apprenticeship Expansion, which developed recommendations on how to best expand the apprenticeship model. The new NPRM reflects key recommendations from the task force. The DOL also announced awards totaling $183.8 million to support the development and expansion of apprenticeships for educational institutions partnering with companies that provide a funding match component. The agency also will make available an additional $100 million for efforts to expand apprenticeships and close the skills gap.

  • It's not me—it's you: how to break up with your employees

    Relationships—both personal and professional—can be complicated. Just like first dates, job interviews offer candidates the chance to show a prospective employer the best possible version of themselves: smart, charming, funny, and responsible. As an employer, you ask exploratory questions about a candidate's background, education, interests, and goals for the future to see if it's a good fit. If you both agree that it is, you start a relationship.

  • Workplace Trends

    Tight labor market tops HR concerns, survey says. Attracting talent has surpassed regulatory compliance as the top HR concern, according to the 2019 Paychex Pulse of HR Survey, released on June 24. More than two-thirds of HR leaders reported difficulty finding and hiring quality candidates, up from 59% last year. When asked specifically about challenges related to hiring, HR professionals most often cited finding qualified candidates (49%), retaining their best employees (49%), and finding candidates who fit their company culture (42%). The survey reported that as a result of those challenges, HR teams are increasingly willing to train job candidates who may not check all the boxes for required skills. The survey showed 85% of HR leaders would be willing to train and upskill an underqualified candidate, and 78% said their organizations have already benefited from upskilling underqualified workers.

  • Filling an injured employee's position in Hawaii just got much harder

    A recent decision by the Hawaii Supreme Court concerning an employee injured on the job and out of work for a lengthy period imposes substantial burdens on employers that need to fill a position during an injured employee's absence. This is a critical decision employers need to comprehend. To grasp just how sweeping the decision is, it's important to understand the facts of the case that prompted the ruling.

  • When determining contractor status, ABC test applies retroactively

    The U.S. 9th Circuit Court of Appeals (whose rulings apply to all Oregon employers) recently ruled the California Supreme Court's 2018 Dynamex decision, which adopted the "ABC" test to determine whether a worker is an employee or an independent contractor, applies retroactively to claims that arose years ago, when individual franchisees claimed their national franchisor was their employer under state law.

  • Supreme Court ruling raises stakes in Title VII claims

    If an employee files a timely Equal Employment Opportunity Commission (EEOC) charge, can she later raise new discrimination allegations after the filing deadline has passed? That's the issue addressed in a new decision from the U.S. Supreme Court. Spoiler alert: The answer is no, unless the employer—or more accurately, its attorney—doesn't notice. To understand the Court's ruling, it's helpful to understand the EEOC's role in discrimination claims.