Hawaii-2010-SB1622-Amended

SECTION 1. The purpose of this Act is to provide a measure of employment security for all persons who are not employed in an executive, administrative, or professional capacity and who would otherwise be displaced from their employment by divestiture of a business through a transfer of the business to another employer due to a sale, transfer, merger, or other business takeover or transaction, while providing a means to reduce the strain on the unemployment compensation fund with the increasing number of unemployed residents collecting unemployment benefits.

SECTION 2. Chapter 394B, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§394B‑ Transition employment period. (a) In the event of a divestiture of a covered establishment, within a period of ten days after the confirmation of the transaction causing the divestiture, the existing employer shall make available to the prospective employer the names of all employees of the existing employer employed at the site or sites covered by the transaction, the date each employee was hired, and each employee's job classification.

(b) At the time the prospective employer becomes a covered establishment, the prospective employer shall provide a similar level of products or services, or both, as the products and services provided by the existing employer and shall retain, for a ninety-day transition employment period, all employees of the existing employer who were employed by the existing employer at the time of the confirmation of the transaction causing the divestiture of the existing employer.

(c) If at any time, the new employer determines that fewer employees are required to perform the level of work or services than were required by the existing employer, the new employer shall retain employees by seniority within job classifications, based on the list of employees provided by the existing employer to the new employer under subsection (a).

(d) During the ninety-day transition employment period, the new employer shall maintain a preferential hiring list of eligible employees not retained by the new employer, from which list the new employer shall hire additional employees based on operational needs.

(e) Except as provided in subsection (c) of this section, the new employer shall not discharge without cause, an employee retained pursuant to this chapter during the ninety-day transition period.

(f) At the end of the ninety-day transition employment period, the new employer shall offer an employee retained from the existing employer continued employment under the terms and conditions established by the new employer, unless:

(1) Upon performing a written performance evaluation of that employee, the new employer deemed the employee's performance during the ninety-day transition employment period to be unsatisfactory; and

(2) The employee was given the opportunity to improve the employee's performance after receiving an unsatisfactory performance evaluation pursuant to paragraph (1)."

SECTION 3. Section 394B-1, Hawaii Revised Statutes, is amended to read as follows:

"§394B-1 Findings and purpose. The legislature finds that there is a need for employment and training assistance for dislocated workers in Hawaii and that there is a need to protect employees from the effects of unexpected and sudden layoffs or terminations resulting from closings, plant closures, partial plant closures, divestitures, and relocations."

SECTION 4. Section 394B-2, Hawaii Revised Statutes, is amended by amending the definition of "employee" to read as follows:

""Employee" means any individual engaged in service to an employer[.] except that for the purposes of section 394B‑ , the requirements under the transition employment period shall not apply to persons employed in an executive, administrative, or professional capacity, as defined by title 29 Code of Federal Regulations section 541.100, title 29 Code of Federal Regulations section 541.200, and title 29 Code of Federal Regulations section 541.300, respectively."

SECTION 5. Section 394B-12, Hawaii Revised Statutes, is amended to read as follows:

"§394B-12 Civil penalties. (a) In a closure, partial closure, or relocation of a covered establishment, [~~Except~~] except as provided in section 394B‑9(b), any employer who fails to conform to the provisions of this chapter shall be liable to each of the employees affected in an amount equal to the value of all their wages, benefits, and other compensation for the three months preceding the closure, partial closure, or relocation of the covered establishment.

(b) In a divestiture of a covered establishment, an employer, whether an existing, prospective, or new employer, that fails to conform to the provisions of section 394B‑ shall be liable:

(1) To each of the employees affected in an amount equal to the value of their wages, for the three months preceding the divestiture; and

(2) To pay a penalty of $500 for each day of the violation; where each day an employer is found to be in violation shall constitute a separate violation and the amount shall be deposited in the employment and training fund under section 383-128. If the employer is also in violation of the notification provision pursuant to section 394B‑9, the penalties in this subsection shall control."

SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	1622
TWENTY-FIFTH LEGISLATURE, 2009		S.D. 1
STATE OF HAWAII