1. Employment Law Update 2015 “Is At-Will Dead?”
Presented by
John L. Knorek
Torkildson, katz, moore, hetherington & harris
October 29, 2015

2. Adams v. CDM Media, 2015 Haw. LEXIS 47 (Feb. 24, 2015)
Preserve admissible evidence that discrimination did not cause the adverse actioNn
“The employer's explanation must be in the form of admissible evidence and must clearly set forth reasons that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the challenged employment action.”;
“Admissible business records: Records of regularly conducted activity.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, … as shown by the testimony of the custodian or other qualified witness. HRE Rule. 803(b)(6).

3. Show A Legitimate Nondiscriminatory Reason that Relates to the Ability of the Individual to Perform the Work
“Thus, a ‘legitimate, nondiscriminatory reason’ not to hire a person, in view of the purposes and statutory provisions of HRS Chapter 378, must be a reason related to the “ability of the individual to perform the work in question.”
“An employer may refuse to hire an individual for justifiable and reasonable cause. In this connection, the employer may, depending on the job, consider the training, experience, intelligence, personality and appearance of the applicant where any or all of these factors are applied equally to all applicants and are determinative in the selection of the best qualified.”

4. Make Decisions Based on Required Rather than Preferred Qualifications
“If sales experience was a ‘preference’ and not a minimum qualification, then Adams could have had no sales experience and she still would have been qualified for the job”
“CDM's posted solicitation for the position stated ‘Sales experience preferred,’ but the solicitation did not indicate that sales experience in the last five years was required in order to be qualified for the position.”
“Unpublicized or undisclosed criteria are not likely to be established occupational qualifications, nor can it be assumed that they are applied equally to all persons.”

5. Ensure Your Reason is not Undermined by other Facts or Statements
“The offer of extensive training underscores the fact that no sales experience was required.”
“The justification in the Declaration is also contradicted by the employee-training program highlighted in CDM's posted solicitation.
Disclose required qualifications beforehand
“undisclosed criteria measuring a person's ability to perform the work in question are less likely to form the basis of legitimate and nondiscriminatory reasons for adverse employment actions Here, "sales experience in the prior five years" was not publicized or disclosed as a hiring criterion in any materials in the record other than in Willis' Declaration.”

6. Shimose v. Hawaii Health Syst. Corp., 134 Haw. 49 (Jan. 16, 2015)
Shimose was convicted of possession with intent to distribute crystal methamphetamine. The Hilo Medical Center rejected his application for a Radtech position.
Radtechs at HMC are responsible for medical imaging and preparation and maintenance of medical imaging equipment. They prepare patients for imaging and make sure that they are comfortable with the imaging process. They process, review, and transmit radiographic images. They do not administer or even assist patients with any type of drugs.
The Circuit Court granted summary judgment against Shimose’s conviction record discrimination claim; holding that that there was a rational relationship between his conviction and the Radtechs position. The Intermediate Court of Appeals affirmed.

7. S.Ct. reversed, Holding There Were Still Issues About The Rationale Relationship. The Court Responded To Each Of The Medical Center’s Proposed Reasons
Proposed reason:
They work around locked crash carts and drug reaction boxes.
Controlled substances are present in anesthesia carts, storage areas and the hospital pharmacy.
They interact with youth, elderly and otherwise vulnerable patients who might have their medication taken from them.
Response:
The syringes and needles, the crash carts and drug reaction boxes contain are not controlled substances and are cheaply and readily available to the public. The sterile water, Benadryl, baking soda, Zantac and other substances that the carts and boxes contain are not controlled.
There are issues whether controlled substances are in those areas and what access Radtechs have to them in excess of the general public.
There are issues regarding how a Radtech could obtain controlled substances from a patient, whether patients possess controlled substances, whether controlled substances are left in patients rooms or whether patients bring those substances with them when undergoing imaging. There is no blanket disqualification from employment that requires interaction with children or the elderly.

8. After Shimose
Hawaii employers who decide not to hire or terminate a convict must do more than assert plausible-sounding risks to defend their decision; they must prove a rational reason for that adverse action with admissible evidence.
Lower courts will be less likely to defer to the employer’s judgment about how to accomplish their legitimate goals, such as the hospital’s patient safety concerns involved in Shimose. Courts will take a closer look at the position’s job duties and the facts pertaining to the manner in which any conviction interferes with those legitimate goals.

9. FLSA COVERAGE
Enterprise Coverage: Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA. These enterprises, which must have at least two employees, are those that have an annual dollar volume of sales or business done of at least $500,000.
Individual Coverage
Employees are protected if their work regularly involves them in commerce between States ("interstate commerce"). The FLSA covers individual workers who are "engaged in commerce or in the production of goods for commerce."
Examples of employees who are involved in interstate commerce include those who
regularly make telephone calls to persons located in other States,
handle records of interstate transactions

10. DOL proposed the following changes:
(1) Set the standard salary level to 40th percentile of weekly earnings for full-time salaried employees
Increase weekly salary from $455 a week to $970 a week ($50,440 a year) in 2016
(2) Set the highly compensated employees (HCEs) to the annualized value of 90th percentile of weekly earnings for full-time salaried employees
Increase minimum annual salary from $100,000 to $122,148
(3) Automatic updating of salary levels every year

11. Tips To Prepare
Conduct preliminary evaluation of all exempt employees.
Increase salary to satisfy new guidelines?
IF NO….
For executive, admin or professional – which employees work OT?
For those that work OT, convert to hourly and monitor hours?
MAHALO

12. Independent Contractors DOL’s Interpretation No. 2015-1 (7/15/15)
Employ includes to “suffer or permit to work”, the broadest definition of employment under the law because it covers work that the employer directs or allows to take place.
Workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees.
A number of “economic realities” factors are helpful guides:
1) The extent to which the work performed is an integral part of the employer’s business; 2) Whether the worker’s managerial skills affect his or her opportunity for profit and loss; 3) The relative investments in facilities and equipment by the worker and the employer; 4) The worker’s skill and initiative; 5) The permanency of the worker’s relationship with the employer; 6) The nature and degree of control by the employer.
The fact that the worker has signed an agreement stating that he or she is an independent contractor is not controlling