Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.C.R. No. 77, H.D. 1, entitled:

begs leave to report as follows:

The purpose of this concurrent resolution is to urge the Department of Labor and Industrial Relations to enforce Act 44, Session Laws of Hawaii 2003, in accordance with the Legislature's intent.

The concurrent resolution also requests the Director of Labor and Industrial Relations to report to the Legislature on the progress of the Department's adoption of rules correcting its erroneous interpretation of Act 44, and the number of employers who denied the use of sick leave, and employees who were denied the use of sick leave for family leave purposes.

Testimony in support of the concurrent resolution was submitted by the ILWU Local 142, Hawaii State AFL-CIO, and a concerned individual. The Department of Labor and Industrial Relations opposed the resolution. Verizon, Hawaii made itself available for questions.

Your Committee adopts the findings made by your Committee on Labor and Public Employment and echoes the hope that a meaningful solution can be found to implement the spirit and intent of Act 44. Your Committee encourages further discussion between the Department, unions, and committee members to resolve any disputes over the interpretation of Act 44.

Your Committee notes, however, based on the testimony by the Director of Labor and Industrial Relations, that it appears that the Department has modified its position from that taken in earlier correspondence with the Chair of the House Committee on Labor and Public Employment and from that currently taken on its website. Specifically, in response to hypothetical questions from committee members, the Director unequivocally stated that any sick leave days in excess of the approximately ten-day minimum which is required under an employer's self-insured temporary disability insurance plan would be available for paid family leave under chapter 398, up to ten days per year. The Director assured the committee that he understands the legislative intent behind Act 44 and fully intends to comply with it.

In contrast to the Department's testimony, the Department's website FAQ states that sick leave benefits in excess of the number of days that are provided under the temporary disability insurance plan can be used for family leave. Thus, if the employer's plan calls for fifteen days of sick leave, even though the minimum number of days required for approval of a self-insured temporary disability insurance plan is approximately ten days, none of those fifteen days would be available for paid family leave. This apparent interpretation relies on a perceived loophole that as long as the sick leave benefits are included under the temporary disability insurance plan, and the employer offers no sick leave outside of the temporary disability insurance plan, then no sick leave days are available for conversion to paid family leave. Act 44 was not intended to be interpreted under this loophole.

Your Committee has amended the resolution by:

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee concurs with the intent and purpose of H.C.R. No. 77, H.D. 1, as amended herein, and recommends its adoption in the form attached hereto as H.C.R. No. 77, H.D. 2.