On October 1, 2020, Bill 80 (2020) – a bill with enormous implications for employers – was introduced in the Honolulu City Council. If enacted, Bill 80 would:

• “establish a right of recall” for employees that obligates their former employers to restore the pre-pandemic status quo with regard to both pay and position;
• mandate that “[a] hotel employer . . . clean and sanitize every occupied guest room every day and . . . employ a number of housekeeping employees to ensure that this standard is met”; and
• impose significant penalties for employers who run afoul of Bill 80’s dictates.

Unsurprisingly, Bill 80 has sparked a loud outcry by local employers on a number of grounds. Specifically, employers have expressed concern that the so-called “right of recall” required by Bill 80 is financially untenable in these difficult economic times. Indeed, some employers that have had to shutdown might be forced to remain closed if Bill 80 is passed, thereby further hurting the economy and creating an even worse unemployment rate. Employers also testified that Bill 80 constitutes “government overreach” that improperly intrudes upon the rights of hospitality employers to decide how to operate, and thereby sets a dangerous precedent. Employers further testified that the requirement that hotels clean and sanitize every occupied guest room on a daily basis is contrary to public health guidance due to the increased contact between employees and guests that Bill 80 requires. Moreover, the many unionized employers that would be impacted by Bill 80 are concerned that it would run roughshod over existing collective bargaining agreements by predetermining the outcome of mandatory subjects of bargaining.

Concerns regarding Bill 80 are compounded by its unclear scope. On the one hand, the plain language of the recall provision in Bill 80 applies to all employers, irrespective of their size or industry. In support of this reading, Bill 80 defines an “employer” extremely broadly. On the other hand, Section 1.1 of Bill 80, which discusses the findings and purpose of the bill, is directed toward “Hawaii hospitality-industry employers.” Additionally, the provision of Bill 80 regarding cleaning hotel rooms is expressly limited to a “hotel employer.” 

To date, numerous local attorneys have opined that Bill 80 is unlawful because it is preempted by state and federal law. With regard to state law, attorneys are concerned that Bill 80 is a county-specific ordinance that would intrude upon the Hawaii Department of Health’s statewide authority to be the sole rule-making authority on this issue. With regard to federal law, attorneys worry that Bill 80 tramples on the exclusive jurisdiction of the National Labor Relations Board by forcing hotels to recall employees.

Indeed, Bill 80 mirrors an ordinance recently enacted by San Francisco. The San Francisco ordinance, which received significant support from local unions, is already the subject of a legal challenge.

On October 7, 2020, Bill 80 passed a first reading in the Honolulu City Council by a vote of 7-1 and was referred to the Executive Matters and Legal Affairs Committee. On October 20, 2020, Bill 80 was reported out of Committee for passage on second reading and scheduling a public hearing.

The Hawaii Employers Council will continue to track Bill 80 and will provide members with updates as they become available.