HOUSE OF REPRESENTATIVES

H.C.R. NO.

77

TWENTY-SECOND LEGISLATURE, 2004

H.D. 2

STATE OF HAWAII

 
   


HOUSE CONCURRENT

RESOLUTION

 

urging the Department of Labor and Industrial Relations to enforce the provisions of Act 44, Session Laws of Hawaii 2003, in accordance with the Legislature's intent.

 

 

WHEREAS, during public hearings on measures pertaining to family leave, the House Committee on Labor and Public Employment learned that one of the largest employers in the State was currently in a dispute with its employees and the Department of Labor and Industrial Relations over the implementation of Act 44, Session Laws of Hawaii 2003; and

WHEREAS, Act 44 requires employers to allow employees to use up to ten days of accrued and available sick leave for family leave purposes; and

WHEREAS, the crux of the dispute lies in the Department's interpretation of "accrued and available sick leave"; and

WHEREAS, in this situation, the Department has taken the position that all of the sick leave provided by the employer is required under the temporary disability insurance law and thus, not subject to the requirements of Act 44; and

WHEREAS, when the Legislature enacted Act 44, the Legislature intended for accrued and available sick leave above and beyond that which is required under the temporary disability insurance law to be used for family leave purposes; and

WHEREAS, according to House Standing Committee Report No. 185 on H.B. No. 389, H.D. 1, which, in the form H.B. No. 389, H.D. 2, would become Act 44, the Committee on Labor and Public Employment found that:

"During the review of this issue, it was discovered that requiring self-insured employers to allow employees to use sick leave for purposes other than for their own illness or injury would result in those employers having to increase the amount of sick leave available for the employee to ensure compliance with the Temporary Disability Insurance Law. In essence, this situation could potentially require the employer to provide paid leave for the employee, in addition to the amount of sick leave that is required under the TDI Law. . .

"... Your Committee asserts that it was never the Legislature's intention to require an employer to provide paid leave above and beyond what an employee had accrued and had available and the amount of leave an employee is entitled to under the TDI Law." [Emphasis added]; and

WHEREAS, if the Legislature had intended for all sick leave provided to be deemed the "amount of leave an employee is entitled to under the TDI Law", then the foregoing underscored passage would have resulted in an absurdity since there would be no paid leave above and beyond what the employee had accrued and available; and

WHEREAS, section 1-15, Hawaii Revised Statutes, states:

"Where the words of a law are ambiguous:

(1) The meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.

(2) The reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.

(3) Every construction which leads to an absurdity shall be rejected."; [Emphasis added]; and

WHEREAS, it would appear that the interpretation of "accrued and available sick leave" used by the Department in enforcing Act 44 is based on a statutory construction that would lead to an absurd result; and

WHEREAS, as such, it would appear that the continued interpretation of "accrued and available sick leave" in this fashion will likely lead to challenges from employees who are currently deprived of using sick leave for family leave purposes pursuant to Act 44; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-second Legislature of the State of Hawaii, Regular Session of 2004, the Senate concurring, that the Legislature urges the Department of Labor and Industrial Relations to enforce the provisions of Act 44, Session Laws of Hawaii 2003, in accordance with the Legislature's intent; and

BE IT FURTHER RESOLVED that the Director of Labor and Industrial Relations is requested to submit a report to the Legislature at least twenty days prior to the convening of the Regular Session of 2005 that shall include, but not be limited to:

(1) A status report on the adoption of rules confirming that the Department's interpretation of "accrued and available sick leave" is consistent with legislative intent as stated in this Concurrent Resolution and that such rules define "accrued and available sick leave" to mean that accrued sick leave days in excess of the minimum required for a self-insured temporary disability insurance plan shall be available for paid family leave pursuant to chapter 398, Hawaii Revised Statutes;

(2) The number of employers who are self-insured for temporary disability insurance who denied the use of sick leave for family leave purposes during fiscal years 2003-2004 and 2004-2005, as indicated by complaints lodged with the Department, or audits and investigations performed by the Department; and

(3) The number of employees covered by an employer's self-insured temporary disability insurance plan who have been denied the use of sick leave for family leave purposes during fiscal years 2003-2004 and 2004-2005, as indicated by complaints lodged with the Department by unions or individuals, or audits and investigations performed by the Department; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Director of Labor and Industrial Relations, the President of the Hawaii Chapter of the IBEW, the President of the Hawaii Chapter of the AFL-CIO, the President of ILWU, Local 142, and the Chamber of Commerce of Hawaii.

 

Report Title:

Urges the Department of Labor and Industrial Relations to enforce the provisions of Act 44, Session Laws of Hawaii 2003, in accordance with the Legislature's intent