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2021 Session-in-Review - Challenging yet successful session

Posted on Apr. 21, 2021  /  Subscribe 0

The 2021 legislative session will adjourn on April 29, with hundreds of bills being considered by the Legislature and moving on to Governor Ige for consideration. A number of these bills will impact the employment and labor sectors either directly or indirectly but given that there was a tremendous amount of bills to provide employee relief, 2021 was a success for SHRM.

There were times this legislative session that we would characterize as challenging given the overall budget restraints and the need to increase the tax base to taxpayers, employers, and businesses.  We highlight just a few of the significant measures that could pave the way for challenging changes ahead in the labor and employment space in 2022.

Bills Expected to Pass the Legislature

• Uniform Employee and Student Online Privacy Protection Act HB125, HD2, SD2 -Establishes the Uniform Employee and Student Online Privacy Protection Act that protects from employers and educational institutions, online accounts maintained by employees, unpaid interns, independent contractors, prospective employees, students, prospective students, and parents or legal guardians of students under the age of eighteen years.

• Employer Prohibition of Mobile Apps on Personal Devices HB1253, HD3, SD1, CD1 - Prohibits employers, with certain exemptions, from requiring employees and prospective employees to download to their personal communication device, a mobile application that enables the employee's location to be tracked or the employee's personal information to be revealed, as a condition of employment or continued employment. Prohibits employers from terminating, discharging, or otherwise discriminating against an employee for refusing to download or refusing to consent to download the mobile application to the employee's personal communication device; or opposing any practice forbidden by this Act or filing a complaint, testifying, or assisting in any proceeding concerning an unlawful practice prohibited under this Act. Allows a person who alleges a violation of this Act to bring a civil action for injunctive relief, actual damages, or both. Sets fines.

• Seizure Info Aid Info to Employees SB936, SD2, HD1, CD1 - Authorizes the department of health to disseminate information on seizure first aid. Authorizes employers to disseminate information on seizure first aid provided by the department of health to their employees at the employer's workplace. Sunsets 6/30/2026.

• Wage and Tax Statement Changes SB1196, SD2, HD1, CD1 - Amends the due date for employers to file the wage and tax statement from the last day of February to January 31 following the close of the calendar year. Imposes a penalty on employers that fail to timely furnish and file the wage and tax statement. Effective 1/1/2022.

• General Excise Tax Exemptions HB58, HD1, SD1, CD1 - From 7/1/2021 through 6/30/2023, temporarily repeals certain general excise tax exemptions.

• Family Paid Leave Study HCR104, HD1, SD1 - Requesting the Director of Labor and Industrial Relations to convene a task force to study, design, and develop a paid family leave pilot program.
  
  

Bills that DID NOT Pass Legislature

• Mandatory Paid Family and Sick Leave 

  
  The legislature introduced six bills that seek to require employers to provide a minimum amount of paid sick leave to employees.

  One comprehensive proposal would establish a newly established family and medical leave insurance program within the Department of Labor and Industrial Relations and begin collecting payroll contributions to finance payment of benefits. It would also require DLIR to start receiving claims and paying benefits under the program. This measure did not pass the legislature.

  Another measure that was quickly extinguished would have provided employees with up to eight weeks of paid family leave during a one-year period paid through an employer-based private insurance program currently used to provide for temporary disability benefits.

  These bills did not pass the legislature.
  

• Minimum Wage  
  

  Hawaii's wages last increased to the current $10.10 an hour in 2018. Discussions on wage increases varied this session with proposals ranging from $12.00 in 2022 and incremental step-ups to $17.00 by 2028.

  Minimum wage legislation did not pass this year but we will expect proponents like unions and organized labor to use the ‘living wage’ argument leading into the 2022 legislative session. This will be seriously considered in 2022 by legislators.

  These bills did not pass the legislature.

  
  
• Medical Cannabis Protections in Employment  

  
  A bill that also did not pass would have prohibited an employer from discriminating against a person in hiring, termination, or condition of employment based on the person's status as a medical cannabis cardholder.

  Currently, individuals who are registered to use cannabis for medical purposes can be terminated on the basis of their status as medical cannabis cardholders. However, some employers maintain a strict zero-tolerance marijuana policy and that influence of an intoxicant could cause death or serious bodily injury.

  This bill did not pass the legislature.
  

• Mandatory Shift Schedule & Notice 
  

  The legislature sought to require employers to provide each employee with written notice of the employee's shift schedule at least 10 days before the employee is scheduled to work. Violation would penalize employers equal to two times the employee's regular rate of pay for any time worked where the employee was not provided with 10 calendar days written notice. 

  This bill fails to take into account the practical realities of running such a business and seeks to impose a strict system replete with penalties and pay requirements which are sure to increase costs and incite lawsuits, while conferring no real benefit on the public.

  This bill did not pass the legislature.
  

• Right of Recall 

  
  A few bills specific to the hospitality industry were introduced to enact a right of recall law to bring back the same workers employed at pre-pandemic levels as the hospitality enterprises resume operation and restore their workforces.  A change of hospitality business ownership or relocation after employees were laid off would still require employees to return to their former work.

  These bills did not pass the legislature.
  
  

• Tax Administration 

  
  An omnibus tax administrative bill proposed several changes such as mandating the electronic filing of certain partnerships, S‑corporation, and individual tax returns and requiring certain tax return preparers to file returns electronically. This bill is consistent with the national trend toward e-filing and e-payment and adds clarity to tax administration.

  This bill did not pass the legislature.

  
  

Federal Bills Being Monitored

• Healthy Families Act HR 2465  

  Bill Action: Introduced - Apr 13, 2021
  To allow Americans to earn paid sick time so that they can address their own health needs and the health needs of their families.
  
  

• Wage Discrimination HR 2490 

  
  Bill Action: Introduced - Apr 13, 2021
  To amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes.
  
  

• Wage Equity Act HR 2491 
  
  Bill Action: Introduced - Apr 13, 2021
  To amend the Fair Labor Standards Act of 1938 to enhance provisions related to wage discrimination, and for other purposes.
  
  

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