 Welcome to Kondo Insider on Think Tech Hawaii. Happy New Year, everyone. I'm your host, Attorney Nalan. As all of you are still working through our New Year resolutions, we're so honored today to welcome my former colleague, attorney Veronica Nordyke. She goes by Nika. Nika recently joined pro-service after seven years practicing law during her career as attorney. Nika practiced for five years with David Kealio Cup-Truck Haster's civil litigation dispute resolution team. From there, she served as a staff attorney providing legal advice and counsel to the chief judge and associate judges of Hawaii's Intermediate Court of Appeals. Through these positions, Nika gained a wealth of beneficial experience in legal compliance and advice that she brands as she leads pro-services, client training and development team. As we know, many of Kondo Media Associations also wear the employer hats and we always need to be aware of staying in compliance from the employment law side. So welcome, Nika. Thank you so much for joining us. Thank you so much for having me. I'm happy to be here. So before we start the legal update, Nika, would you like to share with us the HR services your employer, pro-service Hawaii can provide, especially for Kondo Media Association clients? Sure. I mean, yeah, whether you're a Kondo Media Association, a small business owner, a big business owner, pro-service offers services for all sizes of businesses. Pro-service is a local, old-service HR partner. Our goal is to give you time back. So you can save time and money to focus on your business we've measured and we can save business owners about 80 hours a month. And our clients receive a dedicated support team consisting of, among others, a payroll processor, benefits administrator, think healthcare for a wood-k, claims adjusters, think workers comp or TDI. HR consultants think risky terminations or employee performance issue, harassment or discrimination allegations, they're there to walk you through those kind of sticky situation. Oh, we've also got HR trainers with the team that I lead in our training practices and we train all your employees to perform their best as well as your managers to perform their best. We've also got CPR trainers. If you're an employer that they, you know, you need to meet certain CPR certifications as well as safety trainers to ensure that you're providing a safe and healthy work environment. So a lot, we'd like to say that we've got your back on every day from payday and in between. So that's just a little bit about pro-service. So what we do, we do have some condo association clients but we do serve businesses of all types and sizes. Right? So as we all know with the inflation and everything, nationwide the minimum wage has been rising, right? So Hawaii, where are we right now starting 2024? Yes, so we started 2024 with a minimum wage increase. So it increased on January 1st from 12 to $14 per hour. So it's really important that employers have ensured that affected employees who have paid rates have been adjusted as January 1st, 2024. And players should bear in mind that this increase also means that contributions to Social Security and Medicare contributions will rise in tandem with this rise in minimum wage. Additionally, we also caution our clients to be mindful of what's called wage compression which can be created when we see this upward adjustment to the minimum wage. And briefly, wage compression occurs and the pay of less experience of employees comes uncomfortably close to that and more seasoned counterparts or those in higher positions. For example, in a food and beverage setting, you may have a server, a head server and a banquet captain who are respectively earning 12, $13 and $14 per hour in 2023. Now as of 2024 when that minimum wage increase kicks in, there's no adjustments. They could all be, in theory, earning the same amount. So you can see that this minimum wage increase while it does affect the floor, it can ripple to higher positions and permeate through various levels of your organization. So we want employers to be aware of that. And employers can address this by maintaining those pay differentials or providing growth opportunities to employees. And we really encourage employers to proactively look at their compensation structure and consider making adjustments where needed. And these adjustments can be implemented all at once, for example, on January 1st or they can be faced in strategically depending on the business's budget. These are all just the types of things that no, we advise employers to be mindful of. Thank you. And as we read the newspaper headlines, we do notice the trend that pay transparency is also sweeping across the US and Hawaii has joined this wave. So what do Hawaii employers need to know about this new pay transparency law in Hawaii? Yeah, so yes, Hawaii has followed suit from other states such as, I believe California, Colorado and our state but a big city, New York city. So with respect to Hawaii's pay transparency law or Act 203, this is a new law aimed at reducing pay inequality by providing more transparency as it's called. So really the focus of this law is to create a more equitable and inclusive work environment where employees have a better understanding of their pay and feel confident that they're being compensated fairly. So Hawaii's pay transparency law has two primary components. The first is a disclosure requirement. And the second is an expansion of Hawaii's existing equal pay law. So just very briefly, I'll walk us through both of those. So first, Hawaii's pay transparency law requires employers to disclose the hourly rate or salary range in external job posting. So think late in indeed, et cetera. And these posted ranges must reasonably reflect the actual expected compensation. So you can't just post a range of a zero to $500,000 on every job posting and dust your hands and say, all right, I've complied with the disclosure requirement. I applied with the law. That would retifal the law. The basic expectation of this disclosure requirement is that the employer will pay at the advertised hourly rate or salary range. And deviating from that range makes expose the employer to some risk. So that is in brief the disclosure requirement. Next, you may be wondering, well, who does this disclosure requirement apply to? And it applies to all Hawaii employers unless you fall within three exceptions. The first are employers with less than 50 employees. So this carves out many small businesses and that may be a condo association employee and say, well, they're less than 50 employees here. How does this impact me? Well, it might because employees of small businesses still gain that visibility, that transparency that this law is seeking to provide so they can see what bigger businesses are offering. So while you may be a small business and you may not need to post the hourly rate or salary range in a job posting, this disclosure requirement could nonetheless impact your employees. So it's unfortunate to keep that in mind. The second carve out from this disclosure requirement is that it does not apply to internal transfers or promotions. So if an employer likes to advertise a job internally, they do not need to disclose the hourly rate or salary range for that position. And last, this disclosure requirement does not apply to public positions where compensation is determined by a collective bargaining agreement. And usually these public collective bargaining agreements are publicly available. So you could see the hourly rate or salary range in any bet, but it is a third carve out. So yeah, I guess I'll pause there now if you have any questions that is the first component of the Pay Transparency Act this disclosure requirement. In general, this is definitely a great news for all the job seekers, employees, right? But at the same time, you made a very good point about not necessarily if you're a smaller business with less than 15 employees, you won't be impacted by the first portion of the law which is the disclosure requirement because your employees will be more savvy, more information access to what their peers are earning at other employer places. In order for you to keep your talents, you will need to match up. So that definitely will impact employers across the board. And now we're gonna move on to the second portion of law which is the Equal Pay Law. And different from the first portion, as we mentioned in our prior discussion that this will apply across the board to all employers in Hawaii, right? That is correct. So the second component of Hawaii's Pay Transparency Law is an expansion of Hawaii's Existing Equal Pay Law. So Hawaii's Existing Equal Pay Law and this amendment to it applies to all employers regardless of size. And very briefly, just taking a step back, Hawaii's Equal Pay Law was passed back in 2019 and it is aimed at prohibiting pay discrimination based on sex or gender. So Hawaii's Pay Transparency Law amends the language of the Equal Pay Law to prohibit pay discrimination based on any protected class. So we're seeing a broadening of the protections under the Equal Pay Law. We're seeing an opening of the door to claims of pay discrimination based on other protected classes, think age, religion, citizenship, national origins. So more than just your sex or gender, now you have a broader protection for any of the protected classes. The Pay Transparency Law also amends Hawaii's Equal Pay Law to require Equal Pay for substantially similar work. So previously, Hawaii's Equal Pay Law required Equal Pay for equal work. So this change closes a loophole conceivably enabling employers to engage in discriminatory pay practices by making slight tweaks to work responsibilities and then discriminating against protected classes under the guise of slightly different work responsibilities. So the primary takeaway that we're seeing with respect to this expansion of the Equal Pay Law is that we're just seeing a broadening of protections against pay discrimination. Well, as an employer, you must be wondering, look, if I have these two employees, one is a high performer, the other is kind of just getting it by. So am I mandated by this law to pay Equal Pay for the same job position or am I still eligible or justified to differentiate the compensation or the bonus I'm giving to these employees? Can you help us clarify this point? Sure, and that is a great question. And in short, the answer is no, you do not have to pay all of your employees exactly the same amount if they're on the same level. There are legitimate reasons for differences to pay. And the Pay Transparency Act does include some of those. And so I'll mention legitimate reasons for pay differentials include seniority, merit, the quality or quantity of production, bona fide, occupational qualification, or any permissible factor that is not a protected category. So really the law is aimed at, you know, ensuring these protections against pay discrimination. It is not saying you can't have any paid differential. I guess from an HR training point of view, when you work with your clients, is it because of that is documentation for employers even more important for HR? Because, you know, when things go wrong, when there are disputes, it involves facts and documentation is always the best, you know, friend to really, you know, have your case right there supported lawyers like, you know, records, you know, always prefer clients keep good evidence to back up your claim or defenses, right? Definitely, yes. Documentation, documentation, documentation, always something that we really push for. Beginning from when you are, you know, creating the role and you're looking at, you know, the pay range that you're looking at posting and like the services that this employee is going to perform in that role. Starting from, you know, the very onboarding phase and then as that employee matriculates and receives raises documenting the reasons for that, the expansion of their responsibilities, seniority, obviously, you know, you'd be tracking the number of years that they are with the company. But certainly, yes, we prioritize and emphasize that our clients document everything from the Asian perspective. I heard there are also new protections afforded for workers who are pregnant or have unknown limitations or medical conditions related to childbirth. Could you please help us explain that to the audience? Yeah, and this is something, you know, in Hawaii, we are very fortunate that we have had a lot of protections for pregnancy and for nursing mothers that we'll talk about shortly. But this is at the federal level and it's called the Pregnancy Workers Fairness Act and it went into effect in June of last year. And generally, it requires employers to provide reasonable accommodations for a worker's known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would cause the employer an undue hardship. This act, in short, the PWFA is administered and enforced by the Equal Employment Opportunity Commission, in short, EEOC. And I just felt it was relevant to note at this time because recently the EEOC issued proposed regulations clarifying the implementation of the PWA, FA, PWFA. These regulations are anticipated to be published any day, but based on the proposed regulations, what we're seeing is that there are four specific accommodations that the EEOC has deemed in virtually all cases will be reasonable accommodations that do not impose an undue hardship when requested by a pregnant employee. And the applicant does not need to produce medical documentation to support these requests. So I just wanted to make sure employers were aware of these four, quote unquote, predictable assessments. And they are allowing an employee to carry and drink water as needed in the employee's work area, allowing an employee additional restroom breaks, allowing an employee whose work requires sitting to stand or vice versa, whose work requires standing to sit. And lastly, allowing the employee breaks as needed to eat and drink. So we just want to make sure that this act and these predictable assessments are on employer's radars, and they can make sure to revisit their policies and forms to ensure that the language that they have in their handbooks are consistent with the EEOC regulations implementing the PWF. Okay, and for nursing mothers who are in the workforce, there are also special protections in place now, right? Yes, and so, and there have been, but this PONT Act, or Providing Urgent Ritual Protections for Nursing Mothers Act, expands the protections for nursing mothers to exempt employees. And this is a federal law as is PWFA. Hawaii has a state law also protecting mothers expressing milk in the workplace. But with respect to PONT, it requires employers to provide reasonable break time for mothers to express work in a location that is not the restroom and it is shielded from view and from intrusion, from coworkers or the public for up to one year after a child's birth. And note, this applies to both remote employees and employees that are in the office. With respect to work employees, you think of situations if you're required to be in a Zoom meeting on camera, you need to make sure that you have accommodations to provide that nursing mother breaks and privacy during those breaks. And PONT is enforced by the Department of Labor. So it's got a different federal agency that's enforcing it, but that said, both PONT and the PWFA do overlap in the individuals that may be impacted by them. And both the EEOC and the Department of Labor collectively issued a joint memorandum of understanding, just informing the public that they would combine their efforts to address violations under either statute. So while they are separate federal statutes that are overseen by separate federal agencies, there is some overlap in potential investigations that could arise under them. There's some communication between the agency with respect to these two. And I think, just on that note, the takeaway here with respect to PWFA and PONT is really that we are seeing a strengthening of these protections for working moms, whether you're pregnant, whether you're nursing, as mom, myself, I think that these are really important laws that we do have as working moms. So it's nice to see it. I think that's just the takeaway that employers be mindful that these laws are out there. Make sure that your handbook is up to date and compliant with the latest regulations, both at the federal and at the state. Yeah, I guess even for the, we just discussed about the P transparency as part of that is the, you cannot discriminate against employees because of this expanded protected category or even for the pay. If you cannot justify the different pay for workers in similarly comparable positions, the EEOC could be the enforcing body and disgruntled employee could file a claim there, right? For our audience who's not familiar with this process, can you give us some general information about what would entail the consequences for employer who's fist away the EEOC claim or even adverse spinding in the worst scenario? Yeah, so just at very high level, I'll start that the EEOC, it's a federal agency. It's responsible for enforcing federal discrimination laws, including the PWF-A and they have authority to investigate these claims of discrimination. So the affected individual could initiate this investigation by informing the EEOC. And EEOC will conduct that investigation. If all likelihood, they will try to settle the charge and work with the entity. But if they're not successful, the EEOC has authority to file a lawsuit. And I believe that, you know, the types of risk exposure that an employer is open to is both compensatory and punitive damages for violation of these laws. So there is an investigation process, usually some back and forth settlement process. But at the end of the day, it's certainly a risk if the employer does not comply and just from a general perspective, you know, all employers should comply with the PWF-A. So yeah, and I would say just on that note, at a local level, we have the Hawaii Civil Rights Commission and Pro Service provides HR consultants on its staff that are there to hold employers' hands. If they ever, you know, receive a notice from the HCRC, which is, you know, the local level agency that does handle some of these discrimination complaints, we can work with those employers to respond to the complaints. And, you know, at some points, we do get third party legal counsel involved. Other times we can just be the consultant, the sounding board, you know, the HR consultant isn't your personal attorney, but they are very knowledgeable on the laws and they are there for any of our pro service clients to provide guidance and just information about what the laws are and the best practices are. And certainly, you know, if we are seeing these issues arise from a client perspective, you know, we also have our trainers on board. So we go out and provide training to the supervisor or manager to make sure they are at the state on the law and, you know, train at the manager level as well as at the employee level. So all these laws and regulations, you know, keeping up with them, knowing who's the agency that's overseeing them, they can get very confusing yet. But if you are one of our pro service partners, we really try to make it as easy as possible for you. We have a team available to help you navigate these waters. That's great. We've covered a lot of information. I guess for employers, you know, as the beginning of the new year, if you have not done so already, it would be a good timing to either update your employee handbook or revisit your office policies to make sure you're in legal compliance. So we have a few minutes left. Nika, would you want to wrap up or sort of give our audience a takeaway, you know, because these days our attention span is always short. It's always nice if, you know, if somebody doesn't have the time to go through our whole show, what would be the takeaways they can gather at the end of the show? Sure. Just in brief summary of the takeaways from today's show, Na and I covered the increase to the minimum wage employee, which increased on January 1st, 2024 from $12 an hour to $14 an hour. So please ensure that any affected employees' pay has been adjusted to meet this new minimum wage requirement. Second, we went over Hawaii's Pay Transparency Act. And there's two components to that, the disclosure requirement, which requires employers to disclose the hourly rate or salary range and external job postings. And this applies to employers with more than 50 employees. It does not apply to internal job postings, and it does not apply to public positions whose compensation is determined by a collective bargaining agreement. The second component of the Pay Transparency Act is an expansion of Hawaii's Equal Pay Law. So we're seeing a broadening of protections against pay discrimination. And last we went over to federal laws, which are expanding protections for pregnant mothers and for nursing mothers, the Pregnant Workers Fairness Act, as well as the pump. Thank you, excellent. Thank you so much for your time, Nika. Of course, thank you for having me. It's great to chat with you all today.