Hawai`i Court Survival Tips: 8 Appellate Practice Do’s

Watch any televised sporting event, and at the end of the game the star player from the winning team will say she or he’s glad they won, but she and the team have to get better for the next game. Although it’s become a sports cliché, professionals in every walk of life want to get better at his or her job. In fact, as attorneys in Hawai`i, we are required to complete 3 hours of Mandatory Continuing Legal Education each year, so that we can improve and stay up-to-date on the latest legal trends.

With that in mind, a recent presentation of the Appellate Section of the Hawaii State Bar Association by First Circuit Court Judge Karen Nakasone, an experienced criminal law trial and appellate practitioner before she joined the bench, offered eight useful tips for lawyers practicing in Hawai`i’s Intermediate Court of Appeals and Supreme Court.

1) ICA judges have a heavy caseload and a limited amount of time for each case, so when arguing in writing and orally, get to the point right away and be clear, focused and organized.  Don’t use the entire briefing page limit if you don’t have to.

2) The appellant’s statement of points of error is critical in helping the ICA understand the issues on appeal. Strictly comply with the appellate court rules on briefing.  Make sure that each point is supported by law and by citations to the record on appeal. Select points of error carefully, rather than peppering the brief indiscriminately with a large number of points of error.

3) Your integrity and reputation before the courts are key. The advocate is a “specialist” about the case and the presiding judges are “generalists.” Use oral and written argument to educate the court but do so with integrity. Do not misrepresent or overstate the facts or law. One false or uncivil comment can impact your credibility and cause longterm harm to your reputation with judges. Remember, the judges communicate with each other about practitioners and “have long memories.”

4) The Hawaii Supreme Court’s Commission on Professionalism recently sought comment from lawyers on “the use and effectiveness of the Guidelines of Professional Courtesy and Civility for Hawai`i Lawyers.” Regardless of the guidelines’ future, Judge Nakasone’s strong advice was to read and follow the civility guidelines.

5) Inquiring minds at the presentation wanted to know: how best to cite to the record on appeal? Now that record on appeal is online, citing to the docket number (“Dkt.”) and page number is all that the law clerks and judges need. Using ”ROA___” was helpful when the record was a hard copy and needed to be thumbed through to locate the information in question. Nowadays, clicking on the docket number easily takes the reader to the online document.

6) When arguing before the Hawai`i Supreme Court in writing or orally, argue as if you were making your case to an advocate and tailor your arguments to the swing vote justices. This helps the justices use your key points to persuade their colleagues on the court when they are deciding your case. Remember, the state’s High Court has the ability to make new law, unlike ICA, which is bound by existing law.

7) Before oral argument, practicing in front of a mock judge panel of one’s colleagues, more than once if possible, is important. Then, when you are in court, get to the point quickly, and keep an eye on the clock so you hit all your strong points and have plenty of time for anything else you’ll need to present or answer.

8) Don’t forget to consider the rule allowing requests to transfer a case on appeal directly to the Hawai`i Supreme Court if the case involves novel legal issues. There are time limits, though: “no earlier than 10 days after the filing of the record on appeal and no later than 20 days after the last brief is filed or could have been filed.” Judge Nakasone suggested that using the direct transfer procedure in an appropriate case would save time.

Following these tips should improve your case on appeal and help the judges appreciate your advocacy.

Lessons About Fair Use from a ‘Dancing Baby’

The Ninth Circuit has ruled that copyright holders must consider fair use before demanding that their content be removed from services like YouTube.  The ruling is courtesy of an eight-year, and counting, legal battle over a mother’s home video of her baby dancing to Prince’s “Let’s Go Crazy” which was posted on YouTube and which the copyright police at Universal Music demanded be taken down. The case will now proceed to trial.

Although the ‘dancing baby’ video was reposted and not taken down by YouTube after the mother sent a counter-notice, the Electronic Frontier Foundation, an internet user advocacy group, brought suit in 2007 to argue that the ‘dancing baby’ video should never have been subject to a takedown demand because it was protected by fair use. Fair use permits non-owners to use copyrighted material for certain purposes like commentary, parody, criticism or news reporting. EFF claimed that copyright holders should not be allowed to send take-down notices which ignore fair use and free speech.

The case became a battle over the burdens of takedown notices on Silicon Valley service providers, which receive them by the tens of millions each month, and traditional media which typically sends them as part of organized content protection programs. Google, Twitter and Tumblr filed a brief in support of the mother and EFF; while the Motion Picture Association of America and Recording Industry of America took Universal’s side. The MPAA and RIAA argued that subjecting copyright holders to liability for failure to analyze fair use before sending a takedown notice would “fundamentally alter” the notice-and-takedown system and impose unwarranted burdens. Google, Twitter and Tumblr argued that unfounded takedown notices impose unwarranted burdens on service providers and the free exchange of ideas.

The three judge panel of the Ninth Circuit considered these respective burdens and held that: “Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification— whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it.” In so ruling, the Court sided with the service providers and internet users. Even though it is a greater burden for copyright owners, fair use must be considered in the notice-and-takedown process. However, the Lenz opinion also recognized that a copyright owner’s use of automated processes or computer algorithms to identify infringements “appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.” This carve-out is an important protection for large copyright owners which must police the entire internet for infringing content.

If you believe that your content has been infringed, you can avail yourself of the Digital Millennium Copyright Act and ask that your content be taken down from an internet service provider’s site. But after Lenz, you cannot ignore or neglect to consider fair use. If you do, you can be liable for damages under Section 512(f) of the DMCA, even if they are only nominal.

The Case of the Kentucky County Clerk

This portion of the post was originally published by the ABA Section of Litigation, LGBT Litigator Committee, News & Developments Website

Although the litigation regarding Rowan County Kentucky clerk Kim Davis has generated substantial national media coverage, largely missing is a more detailed description of the legal proceedings, which we attempt to offer here.

The ACLU of Kentucky and a Kentucky law firm filed the case on July 2, 2015, on behalf of a number of plaintiffs after clerk Kim Davis refused to issue marriage licenses in wake of theObergefell decision. The case has been styled Miller et al. v. Davis et al., 0:15-cv-00044-DLB (E.D. Ky.). At the time of filing, the plaintiffs also moved for a preliminary injunction to compel Ms. Davis to issue the marriage licenses.

The court held a number of hearings and received numerous rounds of briefing during July and early August. Ultimately, the court issued the preliminary injunction on August 12, 2015, and Ms. Davis immediately appealed. Ms. Davis moved to stay the injunction pending appeal. The court refused the motion, but issued a temporary stay in order to allow the Sixth Circuit to address the stay issue. The temporary stay lapsed on August 31, 2015, after the Sixth Circuit denied the motion to stay made at the appellate level. The district court refused to extend its temporary stay pending an appeal to the Supreme Court.

While the litigation over the plaintiffs’ preliminary injunction was ongoing, Ms. Davis filed a third party complaint and a motion for preliminary injunction of her own on August 7, 2015. Her case is against the governor of Kentucky, who has ordered her to issue marriage licenses. The court stayed Ms. Davis’s motion for preliminary injunction pending the appeal of the court’s order granting the plaintiffs’ motion for preliminary injunction. Ms. Davis appealed the order staying her motion for preliminary injunction and then filed another motion for preliminary injunction on September 2, 2015, against the governor, this time asking for a preliminary injunction while the appeals were pending.

In the meantime, Ms. Davis has indicated that she will not abide by the court’s injunction requiring her to issue marriage licenses. Accordingly, on September 1, 2015, the plaintiffs filed a motion asking the court to hold her in contempt and requesting monetary sanctions (as opposed to incarceration) sufficient to compel her to comply with the court’s injunction. The court held a hearing on that motion on September 3, 2015. After hearing witnesses and argument, the court held Ms. Davis in contempt of court and ordered her “remanded to the custody of the United States Marshall pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.” The court then denied Ms. Davis’s motion to stay enforcement of the court’s contempt order and denied her motion to certify the contempt order for appeal.

Nondiscrimination Under the Affordable Care Act: Protections for Gender Identity

The seemingly endless pages of the Affordable Care Act contain a short but potent section in which Congress expressed a novel commitment to nondiscrimination in the provision of healthcare. Its scope has been left largely untested, until recently.

Section 1557, codified at 42 U.S.C. 18116 and entitled “Nondiscrimination,” is found within the unwieldy “miscellaneous” subchapter of the ACA. It directs that an individual may not “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance…”

The statute incorporates several well-known anti-discrimination laws: Title VI (prohibiting discrimination on the basis of race, color and national origin); Title IX of the Education Amendments of 1972 (sex); the Age Discrimination Act (age); and Section 504 of the Rehabilitation Act (disability). You might reasonably assume, then, that Section 1557 imports the standards from these four existing laws. With regard to gender identity, that would be the standard under Title IX.

According to one federal court, however, you would be wrong. The first federal court to issue an opinion under Section 1557 concluded that, rather than merely linking to Title IX, the statute has a life of its own. Rumble v. Fairview Health Services, No. 14-cv-2037, 2015 WL 1197415 (D.Minn. March 16, 2015).

In Rumble, the U.S. District Court for the District of Minnesota denied a motion to dismiss a complaint alleging that a hospital discriminated against a transgender man in the provision of his healthcare services. The court held that Section 1557 recognizes a cause of action for discrimination based on transgender status, i.e., it recognizes transgender people as a protected class.

The case dealt with a transgender man’s claim that he was discriminated against when his mother brought him to the emergency room for severe pain and a fever. The complaint alleged that upon arrival, the plaintiff encountered inappropriate and hostile treatment with regard to his gender, that his care and treatment were unreasonably delayed, and that patients with less severe medical conditions were treated much more quickly.

Taking these allegations as true, the court recognized a valid claim. In doing so, the court reached beyond the traditional scope of Title IX, which prohibits discrimination based on “not conforming to gender stereotypes and expectations,” but does not clearly protect individuals who are discriminated against for transgender status. See id. *7.

The Rumble court concluded that Section 1557 provides broader protection than Title IX. To get there, it reasoned that the statute is ambiguous insofar as each of the four incorporated civil rights laws utilize different standards for liability. Id. *10. Due to this ambiguity, the court looked to agency interpretation, specifically, the Office of Civil Rights at the Department of Health and Human Services (OCR), which at the time, had yet to promulgate any rules or regulations interpreting Section 1557.

OCR had issued an opinion letter, in which then-Director Leon Rodriguez stated that Section 1557’s “sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and will accept such complaints for investigation.” Letter from Leon Rodriguez to Maya Rupert, July 12, 2012 (OCR Transaction No. 12-000800).

The court found the reasoning in the letter persuasive, and concluded that despite the lack of clarity in Title IX, Section 1557 protects plaintiffs who allege discrimination based on gender identity. The court rejected defendants’ argument that strict Title IX standards should apply:

[L]ooking at Section 1557 and the Affordable Care Act as a whole, it appears that Congress intended to create a new, health-specific, anti-discrimination cause of action that is subject to a singular standard, regardless of a plaintiff’s protected class status….

Reading Section 1557 otherwise would lead to an illogical result, as different enforcement mechanisms and standards would apply to a Section 1557 plaintiff depending on whether the plaintiff’s claim is based on her race, sex, age, or disability.

Id. *11.

At the time Rumble was decided, there was not much agency guidance for the scope of Section 1557 as to transgender people. That may be changing; on September 4, 2015, the U.S. Department of Health and Human Services released a proposed rule that expands Section 1557 to include discrimination based on gender identity as a form of sex discrimination. The proposed rule would leave in place exemptions for religious organizations.

There is a possibility, then, that Section 1557 sweeps more broadly than prior Title IX protections. Whether Rumble could survive on appeal is yet to be determined. But if upheld, in combination with the new proposed rule, Section 1557 may pack more punch than any civil rights law to date.

Best Practice Reminders for Violence Prevention at Work

Violent tragedies like the recent shooting in Virginia of a news crew by an embittered former employee are a good reminder of the value of employment practices and policies aimed at preventing violence in the workplace and litigation that can follow on the heels of such tragedies. Hawai`i is not immune from such workplace dangers, as evidenced by a troubled employee’s 1999 murder of his supervisor and six co-workers at Xerox’s downtown offices and news stories of domestic violence incidents that often spill over into the office. Indeed, even the recent Virginia shooting has a Hawai`i tie: the station executive who hired, disciplined and fired the Virginia shooter now lives and works in Hawai`i.

Honolulu psychologist and human resources consultant Dr. Gary Farkas recently circulated useful pointers on preventing violence at work, including careful hiring, learning to recognize “red flag” behaviors, acting promptly to discipline or terminate problem employees, “structured and compassionate termination” that includes referral to outplacement services and a workplace violence policy.

If you’re unsure how to handle a red flag employee, contact your lawyer to help walk you through these tricky, and sometimes very dangerous, situations. See a reprint of Dr. Farkas’ article below:
While more information continues to develop, the recent live television execution by a former TV station employee provides some important reminders regarding workplace violence prevention.A quick summary of what is known:Vester Flanagan, a former reporter for WDBJ in Moneta, Virginia, killed a reporter and cameraman while they were in the midst of a live interview. In addition to the feed being shown by the station, Flanagan wore a body camera, and he later posted his killing video on his Facebook and Twitter accounts.Flanagan had a long history of problematic employment, and was terminated by at least two television stations, once in 2000 and once in 2013 by WDBJ. His most recent termination resulted from coworker fears about his pattern of verbal abusiveness and threatening gestures. He was perceived as having anger management issues, inability to take criticism, and as one who took events too personally. He had a history of road rage as well as perceiving himself as victimized by discrimination. When he was terminated in 2013, police were called to remove him from the station, and there was a lock-down because of concerns that he might be violent.

Some important reminders regarding best practices in workplace violence prevention:

Hire Carefully: Make sure your organization does a thorough background check and preemployment assessment. Consider any gaps in employment as a red-flag in need of consideration. Allegations of mistreatment by past employers/coworkers could indicate that the candidate is the source of the problem.

Don’t Allow Entitlement to Develop: Have early indications of problems with a new employee? Consider cutting ties sooner rather than later as the longer someone stays with the organization, the more anger can develop when termination eventually occurs.

Consider On-the-Job Red-Flags: Pre-incident indicators can include anger management issues, continual complaints and grievances, inability to benefit from constructive criticism, odd behavior, feeling victimized and that others are “out to get” them. In the Flanagan example, he appeared to be a “Grievance Collector,” i.e., one who never forgets about past perceived injustices.

Structured and Compassionate Termination: While it may not be possible, consider going the extra mile to make sure the Grievance Collector has reason to look forward to new opportunities, rather than back with anger. Outplacement counseling is but one method to consider.

Have a Workplace Violence Prevention Team. With experts from various disciplines to help guide your thinking when dealing with an employee, vendor, or known-outsider who is raising concern.

Continue to be Vigilant. The WDBJ case illustrates that a former employee can be a grave danger even years after being terminated.

And finally, please do have a Workplace Violence Policy.

NLRB Warns Employers – Your Employee Handbook Is Probably Illegal

As an employer, you may be on a collision course with the National Labor Relations Board (“NLRB”), if like most employers, you haven’t recently updated your employee handbook.

Recently, the NLRB’s General Counsel, Richard F. Griffin, Jr., dropped a wide-reaching memorandum, which applies to all employers-regardless if their workforce is unionized-and which calls into question nearly every employer’s employee handbooks.

According to the NLRB, employers are not in compliance with the law, if your employee handbook has standard provisions, which the agency says interfere with your employees’ rights to organize, such as:

  • Don’t make disparaging comments about the company,
  • Be respectful to your managers,
  • Be respectful to your co-employees,
  • Don’t say anything bad about the company on social media, or
  • Don’t use the company’s copyrights, or its logo.

And, the NLRB’s memo goes much, much further-touching nearly every standard provision used by most employers in their employee handbooks.

Employers should take heed and update their employee handbooks immediately, to avoid the many risks of non-compliance, including exposure to costly lawsuits.

We have dissected the NLRB’s memorandum, and Alston Hunt Floyd & Ing is here to assist our clients to be fully compliant with its directives and to avoid any lawsuits.

New Law Prohibits Noncompete Clauses in Technology Contracts

Updated July 1, 2015, originally posted on June 16, 2015 by Blake Oshiro
Governor Ige signed House Bill 1090, HD2, SD2, CD1 into law as Act 158. The new law voids any “noncompete clause or a nonsolicit clause in any employment contract relating to an employee of a technology business.” The bill broadly defines “technology business” as one that “derives the majority of its gross income form sale or license of products or services resulting from its software development or information technology development, or both.” It excludes any business that is part of the broadcast industry or any telecommunications carrier. The bill defines a “noncompete clause” as one that “prohibits an employee from working in a specific geographic area for a specific period of time after leaving work with the employer.” “Nonsolicit clause” is defined as one that “prohibits an employee from soliciting employees of the employer after leaving employment with the employer.”
In passing the bill, the legislature found that restrictive covenants “impose a special hardship,” and because Hawaii’s geographic area is “unique and limited, noncompete agreements unduly restrict future employment opportunities for technology workers and have a chilling effect on the creation of new technology businesses.”
The effective date of this law is July 1, 2015 and will apply prospectively. It does not affect any existing noncompete or nonsolitication clauses in employment contracts for technology businesses prior to July 1, 2015.
Businesses that have a significant technology component to their gross income should take a good look at their employment contracts to determine if they contain these types of clauses. Because the nature of a business can change, but more over, whether technology is a “majority” of gross income, businesses should carefully review their contracts. Technology businesses will need to take a hard look at their operations and revenues if they intend to enforce any of these clauses in the future.

How To Get A Judge To Change His Mind

We have all been there. We arrive in court on a hearing and the court’s inclination is against us. Or an objection is made to the admissibility of an important item of evidence at trial and the objection is granted. How do we effectively handle such situations? While there are no guarantees and the battle to change a judge’s mind can be daunting, it is not impossible. In this effort it is often good to use as a guide three words: respect, listen and persist.

Often the effort to change a judge’s mind is undermined as a result of form rather then substance. For example, young lawyers as well as more experienced ones seem to panic when things are not going their way feeling the need to urgently make their points while talking over the judge. This is not only a sign of disrespect for the court but also the court’s staff, the court reporter. The clear message sent to the judge by such conduct is that you have neither heard nor care to hear what he has to say. Even patient judges will respond with disinterest to your argument under such circumstances. It is important to acknowledge the judge’s position, perhaps by repeating and reframing what he said, and then, and only then, suggesting why he may have overlooked an aspect of your motion or may not have considered an aspect of the applicable evidence or law. By demonstrating respect for the judge and carefully considering his position as well as demonstrating an interest in assisting the court in getting his decision right you provide yourself with a much better chance of changing his mind.

I can best illustrate persistence by an experience I had some years ago trying a case against a funeral home and mortuary. My client was the only child of his deceased mother who had passed away after a long illness. Providing a respectful burial for his mother, who raised him as a single parent, was very important to him. Unfortunately, the funeral home and mortuary did not approach their task with the same care and respect. They failed to properly communicate the size of the casket resulting in the grave not being dug wide enough for the casket. This discovery was made at the gravesite on the day of the burial. Efforts to have the funeral home take back the casket failed. Accordingly, the casket had to be stored in an unrefrigerated shed at the mortuary for a day. When the burial recommenced and the casket was removed from the shed my client saw ants emerge from the interior of the casket. He opened the casket and saw ants emerge from his mother’s nose and mouth and screamed. A family member caught all of this on videotape. When I sought to introduce the videotape at trial the judge refused agreeing with the defense that the video was staged, cumulative and more prejudicial then probative. I persisted. With every witness at the scene I sought introduction of the tape with the same result, motion denied. That was until my client’s wife testified. She poignantly described the relationship between her husband and his mother, the importance of this event to him, and how he meticulously planned for the same, as well as the horror of ants emerging from his mother’s orifices. I could detect a tear in the judge’s eye during her testimony. I renewed my motion, which was granted over the defense attorney’s objection. I won the case.

The take away is that if you are to have any chance of changing a judge’s mind it is important to remember to show respect for the judge by listening to him, demonstrating by your response that you have heard him, and then, and only then, seeking to emphasize areas of your case that he has perhaps overlooked or minimized. If you have received an adverse ruling on an important issue, you must search for new and creative ways to raise the issue again before the court by way of a motion for reconsideration or a renewal of your motion to introduce the evidence. Do not simply rehash old arguments, but consider presenting the issue in a new and compelling way calculated to capture the court’s imagination.

Takeaways From SCOTUS Marriage Equality Ruling for Hawai’i Employers

Last Friday, the United States Supreme Court, in Obergefell v. Hodges, affirmed that the Fourteenth Amendment of the Constitution requires states to apply their marriage laws equally to all couples, regardless if they are opposite-sex or same-sex. Writing for the Majority, Justice Anthony Kennedy stated, “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”   In deciding Obergefell, the Court, 5-4, resolved a consolidated challenge from the Court of Appeals for the Sixth Circuit, which had sustained several state statutes that excluded same-sex couples from marrying.

The Court’s decision follows its decision in United States v. Windsor, which came two years ago to the same day. In Windsor, the Court held that Section 3 of the Federal Defense of Marriage Act (“DOMA”) violated the Fifth Amendment of the Constitution, to the extent that the statute’s definition of “marriage” and “spouse” deprived same-sex couples of equal protection and due process, because it only recognized the marriages of opposite-sex couples.

The Court’s decision in Obergefell, at least with respect to Hawai’i employers, has fewer implications than it may have for employers elsewhere because: (1) In 2013, following the Court’s decision in Windsor, President Obama issued an Executive Order, and the Federal Internal Revenue Service (“IRS”) and the Department of Labor (“DOL”) issued Final Rules, which expanded under federal statutes the definition of “marriage” and “spouse” to include same-sex marriages, if the state where the same-sex couple resided permitted them to marry, and then (2) In 2013, Hawai’i adopted the Hawai’i Marriage Equality Act, reforming our state’s statutes to permit same-sex couples to marry. So, since 2013, under both federal and state statutes, Hawai’i employers have been required to recognize employees’ same-sex marriages and their spouses, since they are now permitted in our state.

Nonetheless, given the Court’s recent decisions, along with subsequent developments under both federal and state statutes, it is a good time for Hawai’i employers to take stock of the flurry of changes that have occurred with respect to managing LGBT employees who have entered into same-sex marriages:

(1) Federal Contractors & Subcontractors Must Include an Equal Employment Clause in Their Contracts and Employment Policies Indicating They Do Not Discriminate on the Basis of Sexual Orientation or Gender Identity

On July 21, 2014, President Barack Obama signed Executive Order 13672, which, effective April 8, 2015, prohibits federal contractors and subcontractors from discriminating in all aspects of employment on the basis of sexual orientation or gender identity. Under the OFFCP’s Directive 2014-02, which implements President Obama’s Executive Order, federal contractors and subcontractors must take affirmative actions and revise their respective federal contracts and their employment policies to include an equal employment clause that makes clear they will not discriminate on these bases.

(2) Hawai’i Employers Must Not Discriminate Based on Sexual Orientation or Gender Identity

For Hawai’i federal contractors and subcontractors, these requirements may be less burdensome. The Hawai’i Employment Practices Act already prohibits our state’s employers from discriminating on these bases. All Hawai’i employers should ensure that their employment policies are up to date and make clear that they do not discriminate on the basis of sexual orientation or gender identity, and that their workplace posters are up to date, to reflect this requirement.

(3) For Federal/State Tax & ERISA Benefits, Employers Must Be Inclusive of Same-Sex Marriages

On August 29, 2013, the IRS issued Revenue Ruling 2013-17, adopting a broader interpretation of what constitutes “marriage.”  As of September 16, 2013, the IRS Revenue Ruling says for federal tax purposes, including the Employee Retirement Income Security Act of 1974 (“ERISA”), recognition of a couple’s “marriage” will be consistent with what is permitted under the state’s laws where they wed; so for federal purposes, if the state’s law where the couple wed recognizes a same-sex marriage, for federal purposes the “marriage” will also be recognized. However, the IRS Ruling also clarified that for federal purposes, it would not recognize “civil unions,” regardless of whether an applicable state law permitted the sanctioning of the “civil union.”

Per the Court’s decision in Obergefell, though, employers should note and look for possible changes, because the IRS Revenue Ruling will likely be expanded to include all employees’ same-sex marriages, regardless of whether the state law where they wed recognizes such a marriage.

For Hawai’i employers, the IRS Revenue Ruling has important implications with respect to managing employees’ taxable benefits-employers must recognize employees’ same-sex marriages, and their respective spouses, for such purposes. For example, an employer should not consider benefits provided to an employee’s same-sex spouse as taxable income to the employee, and employees should be permitted to pay for their same-sex spouse’s benefits on a pre-tax basis, if applicable.

Similarly, for Hawai’i tax law purposes, employers should also recognize an employee’s same-sex spouse, for any such purposes.

(4) Employers Must Revise Employee Benefits Plans to Be Inclusive of Same-Sex Marriages

Per federal and state law, employers should closely review other employee benefit plans to determine whether they are inclusive of the new definition of “marriage” and “spouse.”  This definition impacts nearly every facet of an employers’ employee benefit plan administration, including:

  • Qualified Retirement Plans – For purposes of a Qualified Retirement Plan, under qualified plan distribution options and any required spousal consent rules there under, an employee’s “spouse” now includes a same-sex spouse.
  • COBRA – Under COBRA, after a loss of coverage due to a qualifying event, an employee’s same-sex spouse must be given the opportunity to elect to continue their group health plan coverage.       Additionally, under COBRA, an employee’s same-sex spouse can be considered a “qualified beneficiary,” which means that he/she must be provided formal COBRA notices and the opportunity to continue health coverage after a COBRA “qualifying event.”
  • HIPAA – The special enrollment rules for newly acquired employees’ spouses now extend to new same-sex spouses.  It remains unclear whether the Supreme Court’s decisions (or Revenue Ruling 2013-17) should be considered a special enrollment event.
  • Flexible Spending Accounts (“FSA’s) – Both employee health FSA’s and dependent care FSA’s will use the new definition of an employee “spouse” to determine whether expenses are reimbursable from an employee’s account.
  • Health Savings Accounts (“HAS’s”) – Under a Health Savings Account, the annual contribution limits for married couples now apply to same-sex couples.

 (5) Under FMLA and HFLA, Employers Should Grant Employees Leave to Tend to Same-Sex Spouses

The Federal DOL issued a Final Rule on February 25, 2015 revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (“FMLA”). FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

Effective March 27, 2015, the Final Rule amends the regulatory definition of “spouse” under the FMLA so that eligible employees in same-sex marriages will be able to take FMLA leave to care for their spouse, regardless of where they live. Essentially, under the FMLA regulations, the DOL moved from a “state of residence” rule to a “place of celebration” rule for the definition of “spouse.” That is, the Final Rule looks to the law of the place in which the employee’s marriage was entered into, as opposed to the law of the state in which the employee resides.

However, as with the IRS Revenue Ruling, employers should monitor the DOL’s Final Rule here, because it will likely be expanded to include all employees’ same-sex spouses, regardless of the applicable state law where the celebrated their marriage.

Under the Hawai’i Family and Medical Leave, the regulatory definition for “spouse” also now includes an employee’s same-sex spouse.

(6) Employers Should Not Segregate Facilities for LGBT Employees &, If Facilities Permit, Employers Should Consider Gender-Neutral Restrooms

Finally, although not related to the Court’s decisions on marriage equality and subsequent developments under federal and state law, the federal government has also provided employers some guidance on managing LGBT employees with respect to facilities. President’s Obama’s Executive Order 13672 and the subsequent OFFCP Directive directed employers to refrain from segregating work facilities, based on employees’ sexual orientation or gender identity. And, on June 8, 2015, the Federal DOL issued guidance for employers on what are best practices for accommodating employees who are transgender with respect to providing access to restrooms. Where an employer’s facilities permit, employers are not required to but should consider providing employees either (1) use of multiple-occupant, gender-neutral restrooms with lockable single occupant stalls, or (2) single-occupancy gender-neutral facilities.






SCOTUS ACA Decision: A Lesson in Context

A trick I learned in law school is that if you want to understand a statute, look to the introduction of a Supreme Court case interpreting it.  The SCOTUS decision today for King v. Burwell is a perfect example.

The Court ruled that the ACA may provide nationwide tax subsidies in all states – not just those running their own exchange.  The four words at issue, providing subsidies for exchanges “established by the State,” must be read within the context of the overall statutory scheme, and cannot be read in isolation to exclude tax subsidies for states using the federal exchange (healthcare.gov).

The issue of context was key, and the Court certainly did not shy away from it.  By the second page, the opinion cites as far back as the 1990s.  Not only did the Court readily look to other provisions and sections of the statute;  the majority considered the political and legislative context of healthcare law dating back decades.

Who knew the Court would cast such a large net over the “context” it would consider.

As the first section of the decision explains, the ACA “grew out of a long history of failed health insurance reform.”  The introductory paragraphs outline the trials and tribulations of healthcare reform attempts in several states from the 1990s through the final enactment of the ACA.

To understand the ACA in a nutshell, and the King v. Burwell case, imagine three “interlocking reforms” intended to work together to prop it up:
(1) insurance market regulations, including guaranteed issue and community rating requirements (insurers must cover everyone with no higher premiums based on health or preexisting conditions);
(2) coverage mandate (everyone must buy insurance or pay a penalty); and
(3) more affordable premiums via refundable tax credits to certain individuals so they may purchase insurance through an exchange (the subsidies).

The third prong was the focus of King, and SCOTUS left it intact.  You may recognize the second prong as well, which was the focus of the Court’s high-profile decision in 2012, which was also left (largely) intact.

The majority today held that although the phrase “established by the State under [Section 18031]” may not seem ambiguous if read in isolation, when it’s read in the larger context of the ACA, the Court “could not conclude that [this phrase] is unambiguous.”  Given this “ambiguity,” the majority turned to the broader structure of the ACA to determine the appropriate meaning.  That meaning—as interpreted by the majority—results in today’s holding that tax subsidies are available to individuals in states that have a federal exchange, just like states with their own exchanges.

The three dissenters were not convinced.  Justice Scalia accused the majority of “rewriting the law under the pretense of interpreting it” and performing “somersaults of statutory interpretation.”  He argued that the decision resembles the kind of judicial legislating that courts abhor, and cleverly quipped that, because the Court has been called upon repeatedly to interpret the ACA, perhaps we should start calling it “SCOTUScare.”

In direct response, the majority concluded by acknowledging that the Court’s job is not to write the law, but rather “to say what the law is” (citing back to the seminal Marbury v. Madison case) – which the majority conceded “is easier in some cases than in others.”  This is especially true here, with both sides agreeing that the statute was hardly an example of artful drafting.

In the last paragraph of the opinion, Chief Justice Roberts has the final word:

[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done.  A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Whichever side you tend to agree with, I would wager a fortune that King v. Burwell will now be required reading in every health law class across the country; not only for its explanation of the ACA, but for the idea that “meaning,” really, can be whatever you can make work in context.