Virtual Hawaii Employment Lawyer

The Age Discrimination in Employment Act (“ADEA”) applies to employers who employ 20 or more employees. The ADEA prohibits: (1) discharging or discriminating against employees who are at least 40 years-old; and (2) retaliating against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

Hawaii law, HRS Chapter 378, also prohibits age discrimination. Significantly, however, HRS Chapter 378 applies to all employers. Further, all employees regardless of their age are protected against age discrimination. Thus, relatively younger individuals (even those less than the age of 40) who are perceived to be less qualified or skilled for an open position, promotion, raise, etc., because of their relatively younger age, and have been harmed by the decision connected to such perception, could have a potential claim against the employer. Read more…

When a formal charge of sexual harassment is filed with the EEOC or the Hawaii Civil Rights Commission, or a lawsuit is brought in federal court or Hawaii State court, one primary issue will be what, if anything, the employer did to prevent or stop the harassment.

There are several specific steps an employer should take to emphasize to employees that sexual harassment will not be tolerated in the workplace. An employer’s managers and supervisors take on an important role at each of these steps. One of the most important steps is the effective implementation of a sexual harassment policy. Read more…

A work environment is considered “hostile” under both Hawaii and federal law when sexual behavior is severe or pervasive enough to alter the complaining employee’s employment conditions and create an abusive work environment.  This occurs when unwelcome sexual or gender-based conduct has the purpose or effect of creating an intimidating or offensive work environment or unreasonably interfering with an individual’s work performance.

Sexual flirtation or innuendo, even vulgar language or sexist remarks that are trivial or merely annoying, would probably not meet the legal definition of a hostile environment.  But such activity can still be prohibited by workplace policy and should be stopped as soon as management becomes aware of it. Read more…

Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission (“EEOC”) defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1.

“National origin” is a vague concept.  The EEOC attempts to resolve some of the uncertainty by recognizing that while one’s “ancestry” is not necessarily synonymous with one’s national origin, where a person was born, the terms overlap as a legal matter.  The United States Supreme Court has itself stated that, “the term `national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.”

Hawaii law, HRS Chapter 378, prohibits “ancestry” discrimination, but not national origin discrimination.  Like Title VII, the terms “ancestry” and “national origin” as a practical matter overlap under Hawaii law.  The state regulations are more expansive in that employers are precluded, unless there is a bona fide occupational qualification, from making pre-employment inquiries and requests for information which tend to disclose the applicant’s ancestry.  Under federal law, such inquires are not illegal per se, but may constitute evidence of unlawful discrimination. Read more…

Title VII and Hawai’i Revised Statute Chapter 378 prohibit employment discrimination on the basis of race and color. The term “race” generally includes all distinctive racial characteristics such as physical characteristics (i.e., color, hair, or facial features), culture (i.e., cultural grooming practices or racially distinctive accent such as “Black accent” or “sounds White”), and race-linked illnesses (e.g., sickle anemia primarily affects persons of African descent).  ”Race” can also include a person’s name.

Discrimination and Definition of “Color”

The term “color” has been interpreted to mean pigmentation, complexion, or skin shade or tone. Although color and race discrimination often overlap, a person may allege color discrimination without alleging race discrimination.  For example, a darker-skinned Hispanic person may claim color discrimination when the employer allegedly favored lighter-skinned Hispanics over darker-skinned Hispanics.  Read more…

The majority of all employment relationships can be divided into three categories:

1. Collective Bargaining Agreement: Wages, hours, and other terms and conditions of employment are set forth in a collective bargaining agreement which is the product of negotiations between the employer and the union.
2. Employment Contracts: Employment contracts for a definite duration are subject to certain termination conditions ( i.e., good cause) and are usually negotiated on an individual basis.
3. Employment-at-Will: Either the employee or the company may terminate the employment relationship at any time for any reason (or even no reason).

Employment At Will Doctrine

The traditional doctrine of at-will employment permits an employer to terminate an employee “for good cause, for no cause, or even for cause morally wrong without being thereby guilty of legal wrong.”  To avoid the harsh impact of the well-established doctrine of at-will employment, state, federal courts and legislatures have created or enacted many laws to restrict this otherwise unfettered right. Read more…

The Hawaii Prepaid Health Care Act, Chapter 393, Haw. Rev. Stat., requires private sector employers to provide minimum prepaid health care coverage to eligible employees. Employees become eligible for coverage once they work for an employer at least twenty (20) or more hours per week for four (4) consecutive weeks and earn a monthly wage of at least 86.67 times Hawaii’s minimum hourly wage.  

Employees must be covered at the earliest possible time permitted by the health care contractor after meeting eligibility requirements. The employer must notify eligible employees of their rights under the Act, provide advance notice of any changes, and provide the employer’s health care contractor’s name, plan number, group number, effective date of coverage, and employee’s cost share for funding health insurance premiums. Read more…

Prompt, thorough and effective investigations are an integral part of an employer’s prevention and correction of sexual and other forms of unlawful harassment in the workplace. Recent United States Supreme Court decisions have emphasized the importance of the employer’s efforts to prevent sexually harassing behavior and promptly correct any such behavior which does occur.

These decisions establish that in sexual harassment job cases involving harassment by a supervisor where no tangible employment action is taken, the employer may avoid liability if it can prove as an affirmative defense that: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of the employer’s anti-harassment policies and any preventive or corrective opportunities. Read more…

Hawaii Employers may request applicants and employees to submit to polygraphs and other lie detector tests only under narrow circumstances.  The employer may not use the exams in a manner which violates the Hawaii Employment Practices Law or the federal Employee Polygraph Protection Act of 1988. Read more…

Employment policies may provide for many different leaves of absence.  Except for leave to vote, no Hawaii law requires paid leave for any leave of absence.  Here is a brief summary of statutorily-protected leaves of absence in Hawaii. Read more…

Anti-nepotism policies serve to address potential problems that could arise if spouses or relatives work at or seek employment with the same company.  Spouses or relatives working with the same employer often lead to complaints by other employees of favoritism, morale issues, or conflicts of interest.  Employers, therefore, have an interest in avoiding these problems by reserving the right to not hire on the basis of relationship status, to transfer employees to another department or site, or to even terminate an employee where a conflict/perceived conflict arises. Read more…

Hawaii employers may require job applicants to undergo a physical examination as part of the hiring process.  Employers may also have medical examination requirements for current employees.  Whether imposed at the hiring stage or on the current workforce, employers’ physical or mental examination requirements are subject to significant restrictions under federal and state law.

Hawaii’s Employment Practices law and the Americans with Disabilities Act (“ADA”) prohibit employers from discriminating against employees and applicants for employment who have disabilities.  As a result, physical examinations cannot be administered or used in a way that unfairly or disproportionately screens out or adversely affects the employment opportunities of disabled individuals.  In the hopes of eliminating the unlawful consideration of disabilities in hiring, both Hawaii state and federal law stated that employers may not require medical examinations of job applicants until after conditional offers of employment are made.  Employment may be conditioned on the results of the examination only if all entering employees in the same job category are subject to the same examination.

Medical examinations of current employees must be job related and consistent with business necessity.  Such examinations must be limited in scope to the employee’s ability to perform specific and essential job functions, or to evaluate an employee’s disability or need for reasonable accommodation.  The Hawaii Administrative Rules require the employer to provide the medical examiner with a written job description, including the essential job functions and the Hawaii state regulations defining “reasonable accommodation” and “direct threat.”

All information regarding the medical condition or history of an applicant or employee must be collected and maintained separately as confidential records.  If the Company requires an employee to complete a medical examination, the Company should first obtain an authorization form compliant with HIPAA, which prohibits health care providers from releasing protected health information to employers except in limited circumstances.

Moreover, Hawaii law prohibits the release of test results of sexually-transmitted diseases (such as HIV/AIDS) for employment, educational, or housing purposes without the voluntary consent of the tested individual.

Tests for use of illegal drugs are not considered medical examinations.

Hawaii employers should understand that both the state and federal agencies charged with enforcing employment laws will view English-Only rules with suspicion and that many time such rules, regardless of intent and whether in writing, will be found unlawful.  Thus, an English-Only rule/policy should be only used as a last resort and after consultation with legal counsel. Read more…

It is hard to argue with studies concluding that there is a correlation between the increase in domestic violence being reported and the weak economy.  It is critical under these circumstances that Hawaii employers understand that the Hawaii Victims Leave Act requires all Hawaii employers to provide eligible employees with at least 5 days of unpaid victims leave.  All employees who have worked for at least 6 consecutive months for the employer are eligible for victims leave. Read more…

On May 12 2009, Susan Shaw, a former Hawaii beauty pageant winner, was indicted by a Hawaii grand jury on 122 criminal counts, including identity and credit card theft, forgery and money laundering. Most of her victims are still attempting to clear their names and reputations—fighting a constant bureaucracy of negative credit card reports, credit card bills showing charges run up by Shaw, and letter writing campaigns and telephone calls to both the credit card companies and credit reporting bureaus. The State of Hawaii has stated that if convicted it will be seeking a life term for Shaw. Read more…

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.

Read more…

Along with other types of claims, there has been a significant increase in pregnancy discrimination complaints nationwide.  The increase in the number of complaints has outpaced the increase in percentage of women in the workforce during the same period.  

Accordingly, it is clear that Hawaii employers need to be aware of their obligations towards pregnant employees, especially under Hawaii state law, which covers all employers, and permits not only individual liability for violations of the law, but also unlimited punitive and compensatory damages to be awarded a plaintiff.

Read more…