ES&A, Inc. offers organizations and employers legal representation and advice in the areas of labor, employment, employee benefits, government contracts, and business strategy. Our services within these practice areas include litigation, dispute resolution, regulatory compliance, transactions, and strategic planning.

LABOR AND
EMPLOYMENT

Litigation

We represent employers in federal and state court proceedings (including appeals), government agency investigations and hearings, and in ADR proceedings (mediation and arbitration) in the following areas:


Wrongful termination

  • Public policy, retaliation, whistleblowers
  • Breach of contract, breach of implied contract
  • Defamation, invasion of privacy, negligence and other personal injury claims

Equal Employment Opportunity

  • Discrimination, harassment, reasonable accommodation, and retaliation claims
  • Work injury claims
  • Proceedings before the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, the Hawai`i Civil Rights Commission and the Hawai`i Department of Labor and Industrial Relations

Labor law

  • Representation, unfair labor practice, back pay or other special proceedings before the National Labor Relations Board or the National Mediation Board
  • Arbitrations under collective bargaining agreements
  • Injunction proceedings

Wage and hour law

  • Unpaid wages claims (minimum wage, overtime, Davis-Bacon and Service Contract Act)
  • Independent contractor disputes
  • Claims for improper deductions and other payment of wage issues
  • Proceedings before the U.S. Department of Labor, and the Hawai`i Department of Labor and Industrial Relations

Employee benefits

  • Claims for workers compensation benefits, unemployment insurance benefits, temporary disability insurance benefits and prepaid health care benefits
  • Proceedings before the Hawai`i Department of Labor and Industrial Relations for failure to provide coverage and/or contributions for workers compensation,  unemployment insurance, temporary disability insurance and prepaid health care

Safety and health

  • Proceedings before the OSHA and the Hawai`i Occupational Safety and Health division

Proprietary rights

  • Disputes over confidentiality and non-compete agreements

ERISA litigation

  • Reporting and disclosure violations
  • Benefit claims

 

Business transactions, investments, and advice 


ERISA

  • Advise trustees and plan administrators on Prohibited Transaction matters
  • Prepare and amend Plan Documents for legal compliance and trustee objectives
  • Prepare applications to IRS for recognition of tax exempt status
  • Coordinate with auditor and actuary/consultant on annual filings with governmental agencies and communications with participants

Equal Employment Opportunity

  • Policies, procedures and training on discrimination, harassment, reasonable accommodation and retaliation issues
  • Compliance issues under Title VII, ADEA, OWBPA, Rehabilitation Act, ADA and ADAAA, and state discrimination laws (including leaves and accommodations for  pregnancy and childbirth)
  • Employer investigations of discrimination, harassment, failure to accommodate and retaliation complaints
  • Affirmative action plans (AAPs), and EEO-1 and Vets 100 filings

Labor law

  • Union organizing drives
  • Collective bargaining negotiations (including strikes, lockouts, reserve gate and secondary boycott issues)
  • Labor relations issues for government contractors and subcontractors

Wage and hour law

  • Classification of exempt and nonexempt employees
  • Classification of independent contractors
  • Calculation of wages under FLSA, Davis-Bacon Act, Service Contracts Act and Hawai`i Wage and Hour Law
  • Payment of wages under federal and state law

Employee benefits

  • Leaves of absence programs (including, but not limited to, FMLA, Hawai`i Family Leave Law, pregnancy leave, USERRA, disability leave, vacations, sick leave,  PTO, domestic violence leaves, and personal leaves of absence)
  • Insured benefits (prepaid health care, workers' compensation, unemployment, temporary disability, long term disability, group life, etc.)
  • Self-insured benefits under state law (prepaid health care, workers' compensation, temporary disability insurance)
  • Medical plan issues under the Hawai`i Prepaid Health Care Act, Patient Protection and Affordable Care Act, HIPAA, COBRA and ERISA
  • Summary plan descriptions for retirement plans, early retirement programs, severance pay plans and other employee welfare benefit plans
  • Compliance with reporting, disclosure and fiduciary obligations under ERISA

Business transactions, strategic planning and organizational development

  • Registration as employers with government agencies
  • Labor/employment issues in acquisitions, sales, mergers, restructuring, reductions in force, plant closings, dissolutions and bankruptcies (including plant  closing notices under WARN and Hawai`i Dislocated Workers Act, and effects bargaining under labor laws)
  • Management agreements and temporary service agreements
  • Design and implementation of HR systems to complement strategic plans and "change management" initiatives
  • Leadership development and management training

Human resources management

  • HR audits
  • Employee handbooks, personnel procedures manuals, HR policies and procedures
  • Job descriptions
  • Personnel forms
  • Employment contracts, independent contractor agreements, consulting agreements
  • Severance and settlement agreements
  • In-house Basic Training Series for managers and supervisors 
  • Advice on day-to-day management issues (recruitment and hiring, background checks, compensation and benefits, leaves of absence, discipline and termination, documentation and recordkeeping)
  • Employment and verification requirements and visa issues
  • Cross-cultural training for managers as well as companies new to Hawaii

Safety and health

  • Safety, health and emergency programs (including OSHA/HIOSH compliance)
  • Substance abuse programs
  • Workplace violence programs

Proprietary rights

  • Non-compete agreements, confidentiality agreements, work-for-hire agreements

Workplace privacy

  • Compliance with privacy laws (including HIPAA, ADA, Job Reference Liability, handling of personal information)
  • Policies on electronic communications, computers, cell phone usage, and social networking

 

 

GOVERNMENT CONTRACTS
AND GRANTS

Business advice and transactions 

ES&A is a certified Woman-Owned Small Business (WOSB) providing government contractors advice on federal, state and local procurement in the following areas:


Contract competition, negotiation and formation

  • Solicitation (RFP, IFB, etc.) review
  • Proposal and grant application assistance
  • Teaming agreements and joint ventures
  • Subcontract and subgrant plans 
  • Collaborative research agreements
  • Public-private partnerships
  • Utilizing preferences and government programs for:
    • Small Businesses
    • HUBZone contractors
    • Veterans-owned Businesses
    • Women-owned Businesses
    • Native Hawaiian Organizations (NHO)
    • SBA 8(a) Program Participants

Intellectual property use and commercialization

  • Dual use technology ownership, transfer, and licensing
  • Export control compliance
  • Rights in commercial and noncommercial software and technical data
  • Federal commercialization programs and opportunities

Compliance and administration

  • Contract/grant interpretation and compliance review
    • Mixed funding contracts/grants (federal-state or public-private)
    • Multi-agency cooperative arrangements
  • Labor standards and fringe benefit pay requirements under the Davis-Bacon Act, the Service Contract Act, HRS Chapter 104
  • Affirmative Action Plan (AAP) requirements under Executive Order 11246 (minorities and women) and Veteran/Disabled Workers
  • Equal Employment Opportunities (EEO) obligations
  • Compliance plans and defense against OFCCP enforcement actions
  • Privacy and security flowdown requirements

Training

  • Procurement 101 (State and Federal)
  • Affirmative Action, Labor Laws, and Executive Orders
  • Equal Employment Opportunity (EEO)
  • Privacy and Security Concerns for Government Contractors

BUSINESS
STRATEGY

We advise company leaders on designing and building a corporate strategy. The foundation: compliance and good governance. The drivers: human and technological resources.

Designing a business foundation 


 Entity formation (for profit and nonprofit)

  • Evaluate entity choices: LLCs, corporation, partnerships, joint ventures, and nonprofit organizations
  • Evaluate state of organization: formation in Hawai'i or registration of foreign business in Hawai'i
  • Prepare and modify formation and governance documents: articles of formation, bylaws, operating agreements, partnership agreements, shareholder agreements
  • Prepare and file applications, licenses and permits with governmental authorities

Governance

  • Fiduciary and ethical obligations of Officers, Directors, Shareholders, Members and Partners
  • Legal obligations: compliance with formation documents
  • Policies and procedures: whistleblower, conflicts of interest, etc.
  • Board development and training and oversight responsibilities
  • Parliamentary procedure

 

Building the Business 


 Operations

  • Labor, employment and employee benefits
  • Government contracts and grants management
  • Creation of subsidiaries, affiliates and sub-entities
  • Advice to nonprofits on unrelated business income tax (UBIT) issues
  • Risk management

Compliance

  • Legal and regulatory requirements applicable to the organization and its industry
  • Labor and employment laws
  • Internal policies and procedures

Litigation and dispute resolution

Mergers and acquisitions (labor, employment and employee benefits issues)

  • Due diligence investigation of target business or nonprofit organization
  • Negotiate and prepare merger and acquisition documents
  • Assistance with required consents for transfer
  • Change management

Technology

  • Intellectual property rights, transfer, licensing, export controls
  • Cybersecurity and privacy

 

Training

We lead strategic planning retreats on a range of topics, including:

  • Structuring for Success
  • Protecting Your IP, Proprietary Information & Other Confidential Matters
  • Fiduciary Duties and Ethical Codes
  • Staffing Strategies
  • Cross-Jurisdiction Issues
  • Government Contracting Obligations (Federal & State)
  • Performance-Based Management
  • Change Management
  • Cybersecurity and Other New Challenges
  • Labor & Employment Trends

Dissolution and wind-up

When a business has run its course, we can assist with:

  • Preparation of dissolution documents
  • Advice on dissolution procedure
  • Advice on disposition of nonprofit assets upon dissolution