HAWAII VICTIMS LEAVE ACT REQUIRES ACTION BY ALL EMPLOYERS
December 2003

All Hawaii employers will be required to provide eligible employees with at least 5 days of unpaid victims leave from January 1, 2004. Unlike the Hawaii Paid Family Leave Act (Act 44), all Hawaii employers are covered by the Hawaii Victims Leave Act (Act 60), and all employees who have worked for at least 6 consecutive months for the employer are eligible for victims leave.

Employers must provide employees with victims leave for a reasonable time period up to a maximum number of days per calendar year if the employee or the employee’s minor child is a victim of domestic or sexual violence. Employers with 50 or more employees must provide up to 30 days of unpaid victims leave per calendar year; employers with 49 or less employees must provide up to 5 days of victims leave per calendar year. Victims leave is unpaid, but employers can require employees to exhaust other paid or unpaid leave before using victims leave.

An employee may use victims leave for the following specific purposes:
  • Seek medical attention for the employee or the employee’s minor child to recover from the physical or psychological injury or disability caused by domestic or sexual violence;
  • Obtain services from a victim services organization;
  • Obtain psychological or other counseling;
  • Temporarily or permanently relocate; or
  • Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence, or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee’s minor child or to enhance the safety of those who associate with or work with the employee.
An employee seeking victims leave must provide their employer with “reasonable notice” of the employee’s intention to take the leave. Advance notice is not required where such notice is not “practicable” because of imminent danger to the employee or the employee’s minor child.

If an employee seeks victims leave for medical attention to recover from physical or psychological injury or disability caused by domestic or sexual violence, the employer may require the employee to provide a certification from a health care provider of the number of leave days necessary and the estimated commencement and termination dates of leave required by the employee. For victims leave due to non-medical reasons, an employer may require the employee to provide certification of his/her need for the leave. If the victims leave extends less than 5 calendar days, the employee must provide a signed statement within a reasonable period attesting to the fact that the employee or the employee’s minor child is a victim of domestic or sexual violence and the leave is for one of the enumerated purposes. If the leave extends 5 days or more, the certification may be provided by one of the following methods:
  • A signed statement from the employee, agent, or volunteer of a victim services organization, from the employee’s attorney or advocate, from a minor child’s attorney or advocate, or a medical or other professional from whom the employee or the employee’s child has sought assistance related to the domestic or sexual violence; or
  • A police or court record related to the domestic or sexual violence.
Upon the employee’s return to work from protected victims leave, he/she shall return to his/her original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges. Any employee denied leave by an employer in willful violation of this law may file a civil action against the employer to recover costs, including reasonable attorney’s fees, incurred in the civil action. Courts may award equitable relief to a plaintiff employees, such as backpay and reinstatement. Significantly, the law does not expressly provide the award of any compensatory or punitive damages to the employee.

POINTER: Employers should educate managers and supervisors of the new law’s requirements to avoid illegal denial of victims leave. There is no requirement to inform employees about victims leave either by posting a notice or including a policy in an employee handbook. However, to ensure proper and consistent application of the leave, employer may wish to publish a victims leave policy in their employee handbook. Sample provisions are included in our Model Employee Handbook. Alternatively, employers who allow employees to take paid or unpaid leave for victims leave purposes should require them to exhaust all such paid and unpaid leave.

For more information about the Hawaii Victims Leave Act, please attend the complimentary Employment Law Briefing that will be held at our law offices on December 17, 2003 from 12 noon to 1:00 pm. The presentation also will be broadcast live by phone and web conferencing. For registration and more information, please e-mail Helene at hrk@torkildson.com.

--Wayne S. Yoshigai, wsy@torkildson.com

HIPAA’S PRIVACY RULES RAISE COMPLIANCE ISSUES FOR EMPLOYERS/SPONORS OF GROUP HEALTH PLANS

I. Background
The Health Insurance Portability and Accountability Act of 1996’s (“HIPAA”) privacy regulations became effective on April 14, 2003 (April 14, 2004 for “small health plans”). HIPAA is intended to protect consumers’ health information, allow consumers greater access and control to such information, enhance health care, and finally to create a national framework for health privacy protection.

II. Who is Covered?
HIPAA covers health plans, health care clearinghouses, and those health care providers that conduct certain financial and administrative transactions electronically.
“Health plan” includes a “group health plan,” which is further defined by HIPAA as an employee welfare benefit plan that, whether through insurance or via a self-insured arrangement, provides healthcare to its employees and/or dependents.

Self-insured employers with less than 50 or more participants are exempt from many of HIPAA’s administrative requirements and consumer rights provisions. So are employers that provide health benefits to employees through a contract with an insurance issuer or an HMO and do not create or receive individually identifiable health information of their employees.

III. Compliance Issues for Sponsors of Flexible Spending Plans and EAPs
After the deadline for health care provider and group health plans other than “small health plans” had passed, April 14, 2003, the Department of Health and Human Services (“DHHS”) took the position that flexible spending account programs and cafeteria plans offered by employers are “covered entities” under HIPAA.

    Specifically, the relevant portion of DHHS’s statement provided:

      Question
      Is a flexible spending account or a cafeteria plan a covered entity for purposes of the Privacy Rule and the other H1PAA, Title II, Administrative Simplification standards?

      Answer
      A “group health plan” is a covered entity under the Privacy Rule and the other HIPAA, Title II, Administrative Simplification standards. A “group health plan” is defined as an “employee welfare benefit plan,” as that term is defined by the Employee Retirement Income Security Act (ERISA), to the extent that the plan provides medical care. See 42 USC § 1320d(5)(A) and 45 CFR 160.103. Thus, to the extent that a flexible spending account or a cafeteria plan meets the definition of an employee welfare benefit plan under ERISA and pays for medical care, it is a group health plan, unless it has fewer than 50 participants and is self-administered. Employee welfare benefit plans with fewer than 50 participants and that are self-administered are not group health plans. Flexible spending accounts and cafeteria plans are not excluded from the definition of “health plan” as excepted benefits. See 45 CFR 160.103, paragraph (2)(i) of the definition of “health plan.”

Thus, with the exception of employers who have self-administered FSA and/or cafeteria plans with less than fifty participants, sponsors of such plans will need to comply with HIPAA’s privacy regulations. The extent of compliance burdens will vary depending upon the manner in which the plan is administered and the structure of the third-party administrator. Suffice to say that to the extent the FSA is administered through a third party administrator that is not an “insurance issuer,” the burden to comply with HIPAA will be great. Small “group health plans” have until April 14, 2004, to comply with HIPAA.

Although many sponsors do not receive protected health information in connection with the administration of flexible spending accounts and cafeteria plans, the statement issued by DHHS appears to require full compliance with HIPAA for this type of welfare benefit plan regardless. DHHS has issued no other guidance.

Given DHHS’s opinion, employers should also be aware that other types of employee welfare benefit plans, including Employee Assistance Programs (“EAP”), may also be covered health plans under HIPAA, depending on how the program is structured.

Although DHHS has not issued an official statement regarding any other type of employee welfare benefit plan besides flexible spending accounts and cafeteria plans, it is likely that DHHS would view a non-referral EAP service offered by an employer similarly to flexible spending plans.

--Roman F. Amaguin, rfa@torkildson.com
--Christine S.Y. Chun, csc@torkildson.com

 

ROMAN F. AMAGUIN is a director with the firm. Mr. Amaguin practices exclusively in labor and employment law. He is a graduate of the University of California at Berkeley, and received his J.D. degree from the University of Hawaii, William S. Richardson School of Law. Mr. Amaguin served as Executive Editor of the University of Hawaii Law Review and was a recipient of the American Jurisprudence Award. Mr. Amaguin is a member of the Hawaii Technology Trade Association, which serves Hawaii's technology industry. He is a member of the Filipino Chamber of Commerce and has been active in Big Brothers/Big Sisters of Honolulu.
   
  NEWTON J. CHU is the resident attorney in the firm's Hilo office and practices in the areas of corporate, labor, immigration, I-9 compliance, and general business law matters. Mr. Chu received his B.A. degree from the University of Hawai‘i, and his J.D. degree from Antioch School of Law. At the University of Hawaii, Mr. Chu earned the Lee-shao Chang Award for Excellence in Chinese Studies. Prior to joining the firm in 1995, Mr. Chu was a partner with Eng, Nishimura & Chu in Los Angeles, California. Mr. Chu serves on the boards of directors of the Big Island AIDS Project, Na Leo O' Hawai‘i, and the Chinese Civic Association, and is a member of the Big Island Mountain Bike Association, the Rotary Club of Hilo, and the Hawai‘i Island Chamber of Commerce.
   
PERRY W. CONFALONE is a shareholder and director of the firm. Mr. Confalone defends and counsels Hawaii employers in civil rights litigation, wrongful discharge, and union matters, including union organizing, arbitration and collective bargaining. Mr. Confalone was lead counsel in Ross v. Stouffer Hotel Co. (1994) -- a wrongful discharge case in which the Hawaii Supreme Court significantly restricted damages remedies against employers; and Hawaii Civil Rights Commission v. Jeyte (1998) in which the Court ruled that the Commission may be held liable to businesses for damages resulting from negligent investigation of civil rights complaints. Mr. Confalone is Chairperson of the Chamber of Commerce of Hawaii's Human Resources Committee, which successfully advocated legislative reforms in workers' compensation, employer job referral liability, and repeal of a state discrimination law dealing with criminal conviction records. Mr. Confalone received the Chamber's 1998 "Individual Member of the Year Award" for his efforts..
   
  ROGER W. FONSECA is co-chair of the firm's Corporate Department and a director with the firm, where he practices in the areas of corporate law, business organization, ERISA and employee benefits. Mr. Fonseca received his B.A., summa cum laude, in Political Science from Occidental College and his J.D. degree from Yale University and has practiced with the firm since 1974. Mr. Fonseca is an officer of the Hawaii Chapter of the Small Business Council of America and a member of the Hawaii Department of Business, Economic Development & Tourism's Advisory Committee on Employee Ownership and Participation and the Hawaii Department of Commerce and Consumer Affairs Advisory Committee on Business Registration Procedures. He has taught and lectured extensively in the pension field both in Hawaii and on the mainland.
   
  TAMARA M. GERRARD is a director with the firm, where she practices in the area of general civil litigation and Labor and Employment Law. Ms. Gerrard received her B.A. degree, with distinction, in Economics from the University of California at Berkeley and received her J.D. degree, magna cum laude, from the University of California, Hastings College of Law in 1992 where she was a member of the Hastings Law Journal and the Thurston Honor Society, and was elected to the Order of the Coif. Ms. Gerrard is admitted to practice law in both Hawaii and California.
   
  JEFFREY S. HARRIS is a director with the firm, where he practices in all areas of employer-employee relations and has clients from diverse industries ranging from start-up companies to large corporations. He has practiced with the firm since 1980. Mr. Harris received his B.A degree, with honors, in Rhetoric from the University of California at Berkeley and his J.D. degree from the University of Michigan in 1980. He is a member of the bar of the U.S. Court of Appeals, Ninth Circuit. Mr. Harris provides pro bono work to the American Red Cross of Hawaii, the Domestic Violence Legal Clearinghouse, Protection and Advocacy Agency of Hawaii, and the YWCA of Kauai.
   
ROBERT S. KATZ is a director with the firm. An experienced trial attorney, his practice is concentrated in the area of complex business and real estate transactions, employment and labor law matters, healthcare law, and complex business litigation. He also serves as an arbitrator in complex business transactional disputes. Mr. Katz has practiced with the firm since 1968 and has been consistently recognized as one of Hawaii's preeminent lawyers and has also been consistently selected by The Best Lawyers in America and honored by Who's Who in America. He was recently named as one of Hawaii's "A+ Lawyers" by Honolulu Magazine. Mr. Katz received his B.A. degree in History from Rutgers University and his J.D. degree, cum laude, from the University of Michigan Law School. Mr. Katz is admitted to the bar of the U.S. Court of Appeals, Ninth Circuit, and the U.S. Supreme Court. Mr. Katz is active in many community projects, and currently serves as a trustee of the Blood Bank of Hawaii. He also served several years as co-chair of the American Bar Association's employment law section on antitrust and labor relations law.
   
ELLEN NOMURA KAWASHIMA is an associate with the firm in the Corporate Department. Ms Nomura received her B.S. degree in Mathematics-Applied Science in Physics from the University of California at Los Angeles and her J.D. degree from the Georgetown University Law Center. She was a member of the American Inns of Court and a teaching assistant in Legal Research and Writing during law school. Prior to joining the firm in 1998, she practiced in the area of family law in Honolulu, Hawaii.
   
JOHN L. KNOREK is a director with the firm and is the past chair of the labor and employment law department. He provides counsel and representation to large and small employers before government agencies and commissions, in federal and state courts, as well as in collective bargaining negotiations and arbitration. He provides training to businesses on employment discrimination and preventative personnel practices, including family leave, disability law, sexual harassment and affirmative action compliance. He has practiced with the firm since 1981. Mr. Knorek received his B.A. and Masters degrees from the University of Cincinnati, and his J.D. degree from Georgetown University. He has served as co-chair of the Human Resources Committee of the Chamber of Commerce of Hawaii, is a director of the Society for Human Resource Management, and guest lectures at the University Hawaii, William S. Richardson School of Law.
   
ERNEST C. "CARY" MOORE III is a director with the firm, where he has practiced in the area of employment law and labor relations since 1974. He represents management in all employment and labor law matters, including alternative dispute resolution, discipline and discharge policies, and avoiding discrimination and sexual harassment claims. Mr. Moore received his A.B. degree in Government from Dartmouth College and his J.D. degree from Southern Methodist University Law School. He is listed in the current edition of The Best Lawyers in America, and was recently named one of the State's "A+ Lawyers," a list of 70 outstanding attorneys compiled by Honolulu Magazine. Mr. Moore has presented numerous seminars on all aspects of employment and labor law to a wide variety of community groups.
   

DAN G. MUELLER is a director with the firm. Mr. Mueller represents employers in federal and state courts, as well as before administrative agencies, such as the U.S. Department of Labor and the Hawaii Civil Rights Commission. Mr. Mueller frequently assists employers in investigating and responding to agency charges and counsels employers on day-to-day personnel matters and practices, including developing employment policies and employee handbooks, and providing advice on minimizing potential litigation. Mr. Mueller is the Vice-Chair of the Human Resources Committee for the Chamber of Commerce of Hawaii and frequently speaks on employment law issues for Hawaii employers. He received both his undergraduate degree and his J.D. degree from the University of Hawaii at Manoa and was a member and contributing author of The University of Hawaii Law Review. Prior to joining the firm, Mr. Mueller served as a law clerk to the Honorable Ronald T. Y. Moon, Chief Justice of the Hawaii Supreme Court.
   
  RICHARD M. RAND is a director of the firm and has chaired the firm's labor and employment law department. He has extensive experience in trial and appellate work and preventative advice on state and federal employment law issues. Mr. Rand received his B.A. degree in English from the University of Pennsylvania, and his J.D. degree from Georgetown University. Mr. Rand does pro bono work for Hina Mauka, a substance abuse treatment center, and speaks before community and business groups on a wide range of subjects, including wrongful discharge, wage and hour issues, sexual harassment, and the Americans With Disabilities Act.
   
PAUL M. SAITO is a director and shareholder with the firm, where he practices extensively in the areas of employee relations, union matters, discrimination, wage and hour, workplace violence, wrongful termination and employment-related torts, as well as general labor areas. He received his Bachelors of Business Administration degree from the University of Hawaii at Manoa, and his Juris Doctor degree from the University of California, Hastings College of Law. Mr. Saito speaks extensively on employment law issues for the Chamber of Commerce, Lorman Educational Services, the National Business Institute, and the Governor’s Pacific Rim Safety and Health Conference. Mr. Saito currently represents employers on the States’ Criminal History Record Checks Working Group, serves the as the Chairman of the Human Resources Committee for the Chamber of Commerce of Hawaii, and is a member of the Chamber’s Government Affairs Council. As Chairperson, Mr. Saito keeps legislators appraised of the potential impact of proposed laws, and monitors and opposes federal and state efforts to enact laws that could have a negative impact on Hawaii’s businesses.
   
GREGORY M. SATO is a director with the firm and chair of the Labor and Employment Law Department. He represents only management in his practice of labor and employment law. His practice includes state and federal compliance counseling, defending discrimination and wrongful discharge lawsuits, and responding to union organizing drives and their aftermath. In 1974, he earned his undergraduate degree in history from the University of Southern California and in 1978 completed a joint M.B.A./J.D. degree at Northwestern University's Kellogg School of Management and the School of Law. Greg is active in community affairs and has been a Director, President and Chair of the Hawaii and State Council for the Society of Human Resource Management, Director of the Hawaii Justice Foundation, Director of Winners at Work, Deacon and Trustee of Central Union Church, Chair of the Hawaii Public Employees Health Trust Fund, and a member of the Local Rules Committee for the United States District Court of Hawaii.
   
KAREN R. TASHIMA is a director with the firm, where she practices in the areas of employment litigation and insurance defense, including wrongful termination, discrimination, disability/disability management, workers' compensation, and work injury matters. She is a member of the American, Hawaii, and Oregon Bar Associations. Ms. Tashima serves as a state liaison for the Workers' Compensation and Employers' Liability Law Committee of the American Bar Association's Torts and Insurance Practice Section and is a member of the Disability Management Employer Coalition, Hawaii Chapter. She received her B.A. degree, cum laude, in Economics and Psychology from the University of Denver and her J.D. degree from the University of Oregon School of Law.
   
MATT A. TSUKAZAKI is a director of the firm who received his undergraduate degree in Zoology from the University of Hawaii at Manoa and his J.D. degree from Southwestern University School of Law in Los Angeles. He was a writer on Southwestern's 1986-1987 International Law Moot Court team, which tied for Best Memo at the 1987 Philip C. Jessup National Moot Court Competition. Mr. Tsukazaki is also admitted to practice in California, where he previously worked in the litigation department of the Los Angeles office of Phillips Nizer Benjamin Krim & Ballon. His practice is in complex business and commercial litigation in both state and federal courts, and he represents clients on matters before state, city and county commissions and agencies.
   
WAYNE S. YOSHIGAI is a director with the firm, where he practices in the area of and has extensive experience in representing employers in administrative and judicial proceedings, including arbitration, and litigation in state and federal courts. He has practiced with the firm since 1986. Mr. Yoshigai received his B.A. degree, cum laude, in History and Literature from Claremont McKenna College and his J.D. degree from George Washington University. He has presented numerous seminars to employers and community groups on sexual harassment, substance abuse in the workplace and the Americans with Disabilities Act. Mr. Yoshigai provides pro bono counsel to the Episcopal Church in Hawaii, Ronald McDonald House, and the Chamber of Commerce of Hawaii. He also serves on the Hawai‘i State Council of the Society for Human Resource Management.
   


Associates
   
   
CHRISTINE S.Y. CHUN is an associate with the firm, where she practices exclusively in the area of Labor and Employment Law. Ms. Chun received her B.A. degree, cum laude, in English and Women's Studies from Pomona College and received her J.D. degree from the University of Pennsylvania. Ms. Chun served as an article editor for the University of Pennsylvania's Journal of International Economic Law. She has practiced with the firm since 1997.
   
  IAN H. HLAWATI joined the firm in 2003 and practices in both the Labor and Employment and Litigation Departments. He received his B.A and B.Mus from Northwestern University in 1998 and attended the University of Hawai`i, William S. Richardson School of Law, where he received his J.D., magna cum laude, in 2002. Currently, Mr. Hlawati is completing his LL.M. in Labor and Employment Law at New York University School of Law. Prior to joining the firm, Mr. Hlawati was an editor for both the University of Hawai`i Law Review and the New York University Journal of Legislation and Public Policy. He was a Dean’s Scholar while in law school and has published several articles on diverse legal topics.
   
CLAYTON A. KAMIDA is an associate with the firm, where he practices and has extensive experience in general labor areas, as well as in discrimination and civil rights claims, wrongful termination, and employment-related torts. Mr. Kamida received his A.B. degree in Economics and English from the University of Michigan, his M.A. degree in English Literature from the University of California at Los Angeles and his J.D. degree, magna cum laude, from the University of Illinois College of Law. Prior to joining the firm in 1994, he practiced employment and labor law in Phoenix, Arizona, where he is admitted to the bar.
   
SHERI-ANN S.L. LAU joined the firm as an associate in the Labor and Employment Department in 2001. She received her B.B.A. in Human Resource Management from the University of Hawai'i at Manoa and later received her J.D. degree, magna cum laude, from the William S. Richardson School of Law. During law school, she was the managing editor of the University of Hawai'i Law Review and was awarded the CALI Excellence for the Future Award for both Constitutional Law I and Evidence.
   



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