SB921 HD1 HSCR981-04

STAND. COM. REP. NO. 981-04

Honolulu, Hawaii

, 2004

RE: S.B. No. 921

S.D. 2

H.D. 1

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Labor and Public Employment, to which was referred S.B. No. 921, S.D. 2, entitled:

"A BILL FOR AN ACT RELATING TO HAWAII WORKSITE TEMPORARY RESTRAINING ORDER ACT,"

begs leave to report as follows:

The purpose of this bill is to establish a procedure for employers to obtain temporary restraining orders to protect against violence and harassment at the worksite.

The Hawaii Medical Service Association, Retail Merchants of Hawaii Security Management Committee, Domestic Violence Clearinghouse and Legal Hotline (DVCLH), and an individual testified in support of this measure. The Society for Human Resource Management (SHRM) supported the intent of this bill. ILWU Local 142 opposed this measure.

Last session, a similar measure, H.B. No. 385, H.D. 2, passed Third Reading in the House and is currently in conference committee. Discussions on this draft stalled last year primarily because of concerns on how the bill would:

(1) Be applied to other employees; and

(2) Apply to other laws and protections, namely section 378-2, Hawaii Revised Statutes (HRS) (the employment discrimination statute), which prohibits discrimination in employment on the basis of an employee's arrest and court record.

Based on these concerns, and for purposes of collecting information on various technical issues, your Committee circulated a proposed H.D. 1 that was similar to S.B. No. 921, S.D. 2, except that it did not allow the employer to obtain a temporary restraining order against an employer's employee.

The Department of Human Resources Development, Hawaiian Electric Company, Inc. and its subsidiaries, Hawaii Electric Light Company, Inc. and Maui Electric Company, Limited, supported the proposed H.D. 1. The Department of Labor and Industrial Relations, SHRM, Chamber of Commerce, and the Hawaii Hotel and Lodging Association supported the intent of this proposed draft.

During the public hearing, the Civil Rights Commission commented that potential conflicts with the employment discrimination statute would appear to be mitigated based on the its interpretation that "arrest and court record" applies to criminal, rather than civil adjudications.

Your Committee also learned that SHRM and DVCLH, the organizations that have been primarily involved with this issue over the past two years, had arrived at a tentative agreement on the measure.

While your Committee is unsure whether any movement has been made toward rectifying the Senate's concerns on H.B. No. 385, H.D. 2, your Committee believes that significant progress has been made by the parties on this issue.

Accordingly, your Committee has amended this bill by:

(1) Defining "invitee" as any natural person invited or authorized by the employer to be on the premises of the employer's workplace;

(2) Allowing an employer to petition for a temporary restraining order on behalf of an invitee who has been subjected to harassment at the worksite;

(3) Clarifying that the provisions of this bill not be construed to:

(A) Create, expand, diminish, alter, or modify the duty, if any, of an employer to provide a safe workplace for employees;

(B) Limit any other rights or remedies available to an employer or employee under existing law, including but not limited to the seeking of injunctive relief through methods other than the procedures set forth in this bill; and

(4) Clarifying that no civil liability shall attach or be imposed on an employer for:

(A) Initiating a proceeding under this bill; or

(B) Conducting an investigation of any alleged act or threat of violence or harassment in the workplace for purposes of determining the feasibility of or initiating a proceeding under this bill;

(5) Establishing a good faith defense for an employer or an employer's agent for actions taken under this bill, and clarifying that no liability shall attach to the employer or employer's agent for not utilizing the procedures under this bill; and

(6) Clarifying that no civil liability shall attach or be imposed on the employee or witness for:

(A) Participating in an employer's investigation for purposes of initiating a proceeding under this bill; and

(B) Presenting statements or evidence in a judicial proceeding.

Finally, technical, nonsubstantive amendments were made for clarity, style, and consistency. A purpose section was inserted to clarify that the provisions of this bill fit within the scope of its title.

As affirmed by the record of votes of the members of your Committee on Labor and Public Employment that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 921, S.D. 2, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 921, S.D. 2, H.D. 1, and be referred to the Committee on Judiciary.

Respectfully submitted on behalf of the members of the Committee on Labor and Public Employment,

		____________________________ MARCUS R. OSHIRO, Chair