Trump, Counter-Trumps and Employment Law Trends to Watch For

New Year, new world, new legislation — particularly for employment law, at both the national and state levels.

The national scene:

The Trump administration has taken its place in Washington, DC — and so the changes begin. Included at the top of the list, as expected:

  • Preliminary steps toward repealing the Affordable Care Act (Obamacare): an executive order allows federal agencies to “to minimize the unwarranted economic and regulatory burdens of the Act” on a state, company or individual, while congressional Republicans come up with a replacement program. Until new agency heads are confirmed for Health and Human Services, Treasury and Labor, however, it remains to be seen exactly what this means for employers in terms of compliance.

Among the bills before Congress:

  • Separation of Powers Restoration Act 2017 (H.R.76): Proposes to amend the Administrative Procedures Act to allow federal courts to review federal agency decisions de novo, without giving deference to the agency’s interpretation. Should the bill pass the Senate, it would not only affect enforcement of employment laws but also likely increase appeals to federal courts.



The 2017 Hawaii Legislature has also convened. Among the “Counter-Trumps” (bills designed to counter anticipated changes at the federal level) introduced:

  • HB 1434: Requires employers of 25 or more food establishment workers to provide paid time off for illness or medical care for the worker or the worker’s spouse or children.
  • HB 986: Requires certain employers with 50 or more employees to provide sick leave to service workers for specified purposes.
  • HB 1433: Requires minimum wage be adjusted annually in accordance with the Honolulu consumer price index beginning in 2019.
  • SB 107: Increases minimum wage to $12.25 per hour in 2018, and $15 in 2019.
  • SB 267: Increases minimum wage to $12.00 per hour in 2020, and $14 in 2022.
  • SB 544: Increases minimum wage to $12.00 per hour in 2019, $13.50 in 2020, $15 in 2021, and thereafter adjusted annually in accordance with the Honolulu consumer price index. Deletes tip credit.
  • HB 441: Increases minimum wage to $12.50 per hour in 2018, $15 in 2019, $19 in 2020, $21 in 2021, $22 in 2022, and thereafter adjusted annually in accordance with the Honolulu consumer price index. Repeals tip credit.
  • HB 442: Authorizes the counties to establish a higher minimum wage than the state minimum wage.
  • HB 552 (SB 403): Amends Hawaii insurance statutes by preserving provisions from the Affordable Care Act (ACA) which include more benefit coverages (preclude pre-existing conditions, extend coverage for adult children up to age 26, include coverage for contraceptives).
  • HB 935 and SB 1117: Increases the amount of guaranteed monthly compensation required to exempt an individual from overtime.

Also of interest to Hawaii employers:

  • HB 347 and SB 345: Clarifies Hawaii’s legal definition of an independent contractor.

What does it all mean for Hawaii employers? In a recent webinar, ES&A President Anna Elento-Sneed discussed "2017 Employment Law Trends to Watch For," including legislative trends as well as agency, court and workforce trends. As the disparity between federal and Hawaii state laws grow, and as litigation increases, Hawaii employers can protect their businesses by:

  • Purchasing adequate insurance coverage
  • Reviewing policies and procedures from a risk management standpoint
  • Assessing staffing
  • Defining short-term and long-term recruitment plans
  • Maintaining a detailed spreadsheet of labor costs
  • Watching the news as the situation develops!