HERA Chapter 378, HRS

HRS Chapter 378
HAWAIʻI EMPLOYMENT PRACTICES ACT

[as of 2015]

Center for Labor Education & Research
University of Hawaiʻi - West Oʻahu
91-1001 Farrington Highway, Kapolei, HI 96707
(808) 689-2760 - FAX (808) 689-2761

http://clear.uhwo.hawaii.edu email: clear@hawaii.edu

SECTIONS:

PART I. DISCRIMINATORY PRACTICES
378-§ 1. Definitions
378-§ 2. Discriminatory Practices Made Unlawful; Offenses Defined
378-§ 2.3 Equal pay; sex discrimination
378-§ 2.5 Employer inquiries into conviction record
378-§ 2.7 Employer inquiries into and consideration of credit history or credit report
378-§ 3. Exceptions
378-§ 4. Enforcement Jurisdiction
378-§ 5. Remedies
378-§ 6. Inspection; Investigation; Records
378-7 to 9 Repealed
378-§ 10. Breastfeeding

PART II. LIE DETECTOR TESTS
378-§ 26. Definitions
378-§ 26.5. Unlawful Practices
378-§ 27. Exceptions
378-§ 27.5. Enforcement Jurisdiction: Complaint Against Unlawful Practice
378-§ 28. Power of Department to Prevent Unlawful Practices
378-§ 28.5. Investigation: Oaths; Affidavits; Subpoena; Witnesses; Immunities
378-§ 29. Rules
378-§ 29.3. Penalties

PART III. UNLAWFUL SUSPENSION OR DISCHARGE
378-§ 31. Definitions
378-§ 32. Unlawful suspension, barring, discharge, withholding pay, demoting, or discrimination
378-§ 33. Complaint Against Unlawful Suspension, Discharge or Termination
378-§ 34. Proceeding and Hearing on Complaint
378-§ 35. Findings and Order
378-§ 36. Judicial Review
378-§ 37. Enforcement of Order; Judgement Rendered Thereon
378-§ 38. Rules and Regulations

PART IV. FAIR REPRESENTATION
378-§ 51. Definitions

PART V. WHISTLEBLOWERS' PROTECTION ACT
A. General Provisions
378-§ 61. Definitions
378-§ 62. Discharge of; Threats to; or Diswcrimination Against Employee for Reporting Violations of Law
378-§ 63. Civil Actions for Relief of Damages
378-§ 64. Remedies Ordered by Court
378-§ 65. Penalties for Violations
378-§ 66. Collective Bargaining and Confidentialiy Rights, Takes Precedence
378-§ 67. Compensation for Employee Participation in Investigation, Hearing or Inquiry
378-§ 68. Notices of Employee Protections and Obligations
378-§ 69. Conflict with Common Law, Precedence

B. Public Employees
378-§ 70. Protected disclosure by a public employee

PART VI. VICTIMS PROTECTIONS
A. General Provisions
378-§ 71. Definitions

B. Victims Leave
378-§ 72. Leave of absence for domestic or sexual violence
378-§ 73. Relationship to other leaves
378-§ 74. Effect on employment and collective bargaining agreements; benefits

C. Reasonable Accommodations in the Workplace
378-§ 81. Reasonable accommodations 378-§ 82. Civil actions

The Hawaiʻi Civil Rights Commission website, and
The State Administative Rules, [Title 12, Chapter 46] for this law.

PART I. [NEW] DISCRIMINATORY PRACTICES

§378-1 Definitions. As used herein:
      "Arrest and court record" includes any information about an individual having been questioned, apprehended, taken into custody or detention, held for investigation, charged with an offense, served a summons, arrested with or without a warrant, tried, or convicted pursuant to any law enforcement or military authority.
      "Because of sex" shall include, but is not limited to, because of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other individuals not so affected but similar in their ability or inability to work.
      "Being regarded as having such an impairment" includes but is not limited to employer consideration of an individual's genetic information, including genetic information of any family member of an individual, or the individual's refusal to submit to a genetic test as a condition of initial or continued employment.
      "Commission" means the civil rights commission.
"Disability" means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment.
      "Domestic or sexual violence victim" or "victim" means an individual who is the victim of domestic or sexual violence as defined in section 378-71.
      "Employer" means any person, including the State or any of its political subdivisions and any agent of such person, having one or more employees, but shall not include the United States.
      "Employment" means any service performed by an individual for another person under any contract of hire, express or implied, oral or written, whether lawfully or unlawfully entered into. Employment does not include services by an individual employed as a domestic in the home of any person, except as provided in section 378-2(a)(9)
      "Employment agency" means any person engaged in the business of providing employment information, procuring employment for applicants, or providing employees for placement with employers upon request.
      "Family member" means, with respect to a certain individual, another individual related by blood to that individual.
      "Gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or genderrelated expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or genderrelated expression is different from that traditionally associated with the person's sex at birth.
      "Gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.
      "Genetic information" means information about genes, gene products, hereditary susceptibility to disease, or inherited characteristics that may derive from the individual or family member.
      "Genetic test" means a laboratory test which is generally accepted in the scientific and medical communities for the determination of the presence or absence of genetic information.
      "Labor organization" means any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
      "Marital status" means the state of being married or being single.
      "Person" means one or more individuals, and includes, but is not limited to, partnerships, associations, or corporations, legal representatives, trustees, trustees in bankruptcy, receivers, or the State or any of its political subdivisions.
      "Sexual orientation" means having a preference for heterosexuality, homosexuality, or bisexuality, having a history of any one or more of these preferences, or being identified with any one or more of these preferences. "Sexual orientation" shall not be construed to protect conduct otherwise proscribed by law. [L 1981, c 94, pt of § 2; am L 1986, c 223, §§ 1, 2; am L 1989, c 386, §§ 3,17; am L 1991, c 2, § 2; am L 1992, c 33, § 5; am L 2002, c 217, § 1; am L 2011, c 34, §3 and c 206, §1; am L 2013, c 248, §1]

§378-2 Discriminatory practices made unlawful; offenses defined.
It shall be an unlawful discriminatory practice:

Because of race, sex, including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:
(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;
(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;
(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;
(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or
(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be less than sixteen years of age;

For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

For any person whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

For any employer to refuse to hire or employ or to bar or discharge from employment, any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52; or

For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association: or

For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast;

For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2; or

For any employer to discriminate against any individual employed as a domestic, in compensation or in terms, conditions, or privileges of employment because of the individual's race, sex including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, or marital status.

(b) For purposes of subsection (a)(1):
(1) An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

A signed written statement from a person listed below from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence:
1. An employee, agent, or volunteer of a victim services organization;
2. The employee's attorney or advocate;
3. The attorney or advocate of the employee's minor child;
4. A medical or other health care professional; or
5. A member of the clergy; or
A police or court record supporting the occurrence of the domestic or sexual violence; and

(2) An employer may verify an employee's status as a domestic or sexual violence victim not more than once every six months following the date the employer:

Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;
Has actual knowledge of the employee's status as a domestic or sexual violence victim; or
Received verification that the employee is a domestic or sexual violence victim;

provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer may not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later. [L 1981, c 94, pt of § 2; am L 1985, c 177, § 1; am L 1986, c 223, § 3; am L 1991, c 2, § 3; am L 1992, c 33, § 5; am L 1994 c 88, § 1; am L 1999, c 172, § 3; am L Sp 2009, c 1, § 2; am L 2011 c 34, § 4 and c 206, §2; am L 2013, c 248, §2]

[§378-2.3] Equal pay; sex discrimination.
No employer shall discriminate between employees because of sex, by paying wages to employees in an establishment at a rate less than the rate at which the employer pays wages to employees of the opposite sex in the establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions. Payment differentials resulting from:

(1) A seniority system;

(2) A merit system;

(3) A system that measures earnings by quantity or quality of production;

(4) A bona fide occupational qualification; or

(5) A differential based on any other permissible factor other than sex

do not violate this section. [L 2005, c 35, §2]

§ 378-2.5 Employer inquiries into conviction record. (a) Subject to subsection (b), an employer may inquire about and consider an individual's criminal conviction record concerning hiring, termination, or the terms, conditions, or privileges of employment; provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.

(b) Inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position.

(c) For purposes of this section, "conviction" means an adjudication by a court of competent jurisdiction that the defendant committed a crime, not including final judgments required to be confidential pursuant to section 571-84; provided that the employer may consider the employee's conviction record falling within a period that shall not exceed the most recent ten years, excluding periods of incarceration. If the employee or prospective employee claims that the period of incarceration was less than what is shown on the employee's or prospective employee's conviction record, an employer shall provide the employee or prospective employee with an opportunity to present documentary evidence of a date of release to establish a period of incarceration that is shorter than the sentence imposed for the employee's or prospective employee's conviction.

(d) Notwithstanding subsections (b) and (c), the requirement that inquiry into and consideration of a prospective employee's conviction record may take place only after the individual has received a conditional job offer, and the limitation to the most recent ten-year period, excluding the period of incarceration, shall not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law other than subsection (a), including:

The State or any of its branches, political subdivisions, or agencies pursuant to sections 78-2.7 and 831-3.1;
The department of education pursuant to section 302A-601.5;
The department of health with respect to employees, providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services pursuant to section 321-171.5;
The judiciary pursuant to section 571-34;
The counties pursuant to section 846-2.700(b)(5), (33), (34), (35), (36), and (38);
Armed security services pursuant to section 261-17(b);
Providers of a developmental disabilities domiciliary home pursuant to section 321-15.2;
Private schools pursuant to sections 302C-1 and 378-3(8);
Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9);
Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b);
Employers in the business of insurance pursuant to section 431:2-201.3;
Employers of individuals or supervisors of individuals responsible for screening passengers or property under Title 49 United States Code Section 44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area of an airport in the United States pursuant to Title 49 United States Code Section 44936(a);
The department of human services pursuant to sections 346-97 and 352-5.5;
The public library system pursuant to section 302A-601.5;
The department of public safety pursuant to section 353C-5;
The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I-12;
The board of directors of an association of owners under chapter 514A or 514B, or the manager of a condominium project pursuant to section 514A-82.1 or 514B-133; and
The department of health pursuant to section 321-15.2. [L 1998, c 175, § 1; am L 2003, c 95, §12; am L 2004, c 79, §5 am L 2005, c 93, §7; am L 2006, c 220, §4; am L 2008, c 28, §7; am L 2012, c 299, §11; am L 2013, c 159, §15; am L 2014, c 18, §1; am L 2015, c 190, §7]

§378-2.7 Employer inquiries into and consideration of credit history or credit report. (a) Notwithstanding section 378-2(8):

Inquiry into and consideration of a prospective employee's credit history or credit report may take place only after the prospective employee has received a conditional offer of employment, which may be withdrawn if information in the credit history or credit report is directly related to a bona fide occupational qualification;
The prohibition against an employer's refusal to hire or employ, barring or terminating from employment, or otherwise discriminating on the basis of credit history shall not apply to employers who are expressly permitted or required to inquire into an individual's credit history for employment purposes pursuant to any federal or state law;
The prohibition against an employer's refusal to hire or employ, barring or terminating from employment, or otherwise discriminating on the basis of credit history shall not apply to managerial or supervisory employees; and
The prohibition against an employer's refusal to hire or employ, barring or terminating from employment, or otherwise discriminating on the basis of credit history shall not apply to employers that are financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution.

(b) For the purposes of this section:
"Managerial employee" means an individual who formulates and effectuates management policies by expressing and making operative the decisions of the individual's employer.
"Supervisory employee" means an individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [L Sp 2009, c 1, §1]

§ 378-3 Exceptions. Nothing in this part shall be deemed to:

Repeal or affect any law, ordinance, or government rule having the force and effect of law;
Prohibit or prevent the establishment and maintenance of bona fide occupational qualifications reasonably necessary to the normal operation of a particular business or enterprise, and that have a substantial relationship to the functions and responsibilities of prospective or continued employment;
Prohibit or prevent an employer, employment agency, or labor organization from refusing to hire, refer, or discharge any individual for reasons relating to the ability of the individual to perform the work in question;
Affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan that is not intended to evade the purpose of this chapter; provided that this exception shall not be construed to permit any employee plan to set a maximum age requirement for hiring or a mandatory retirement age;
Prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to individuals of the same religion or denomination or from making a selection calculated to promote the religious principles for which the organization is established or maintained;
Conflict with or affect the application of security regulations or rules in employment established by the United States or the State;
Require the employer to execute unreasonable structural changes or expensive equipment alterations to accommodate the employment of a person with a disability;
Prohibit or prevent the department of education or private schools from considering criminal convictions in determining whether a prospective employee is suited to working in close proximity to children ;
Prohibit or prevent any financial institution in which deposits are insured by a federal agency having jurisdiction over the financial institution from denying employment to or discharging from employment any person who has been convicted of any criminal offense involving dishonesty or a breach of trust, unless it has the prior written consent of the federal agency having jurisdiction over the financial institution to hire or retain the person;
Preclude any employee from bringing a civil action for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto; provided that notwithstanding section 368-12, the commission shall issue a right to sue on a complaint filed with the commission if it determines that a civil action alleging similar facts has been filed in circuit court;
Require the employer to accommodate the needs of a nondisabled person associated with or related to a person with a disability in any way not required by Title I of the Americans with Disabilities Act. [L 1981, c 94, pt of § 2; am L 1984, c 85, § 4; am L 1985, c 162, § 1; am L 1990, c 257, § 3; L 1991, c 262, § 2; am L 1992, c 33, § 3 and c 275, § 1; am L 1994 c 88, § 2; am L 1997, c 365, § 2; am L 1998, c 175, § 2; ; repeal and reenactment 6/30/99, L 1997 c 365, § 4]

§ 378-4 Enforcement jurisdiction. The commission shall have jurisdiction over the subject of discriminatory practices made unlawful by this part. Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may file with the commission a complaint in accordance with the procedure established under chapter 368. [L 1981, c 94, pt of § 2; am L 1989, c 386, § 8]

§ 378-5 Remedies. (a) The commission may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, restoration to membership in any respondent labor organization, or other remedies as provided under chapter 368, which in the judgment of the commission, will effectuate the purpose of this part, including a requirement for reporting on the manner of compliance.

(b) In any civil action brought under this part, if the court finds that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this part, the court may enjoin the respondent from engaging in such unlawful discriminatory practice and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement, hiring, or upgrading of employees, with or without backpay, or restoration of membership in any respondent labor organization, or any other equitable relief the court deems appropriate. Backpay liability shall not accrue from a date more than two years prior to the filing of the complaint with the commission.

(c) In any action brought under this part, the court, in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow costs of action, including costs of fees of any nature and reasonable attorney's fees, to be paid by the defendant. [L 1981, c 94, pt of § 2; am L 1989, c 386, § 9]

§ 378-6 Inspection; investigation; records.
(a) In connection with an investigation of a complaint filed under this part, or whenever it appears to the commission that an unlawful discriminatory practice may have been or is being committed, the commissionÕs authorized representative shall have access to the premises of the parties or persons reasonably connected thereto, records, documents, and other material relevant to the complaint and shall have the right to examine, photograph, and copy that material, and may question employees and make investigation to determine whether any person has violated this part or any rule issued hereunder or which may aid in the enforcement of this part.

(b) Every employer, employment agency, and labor organization shall:

Make and keep records relevant to this part, and
Make such reports therefrom, as the commission shall prescribe by rule or order. [L 1981, c 94, pt of § 2; am imp L 1984, c 90, § 1; am L 1989, c 386, § 10]

§§ 378-7 to 9 REPEALED. L 1989, c 386, §§ 18 to 20; effective January 1, 1991

§378-10 Breastfeeding. No employer shall prohibit an employee from expressing breastmilk during any meal period or other break period required by law to be provided by the employer or required by collective bargaining agreement. [L 1999, c 172, § 2]

Effective January 1, 1991, the following sections are not in Hawai'i Civil Rights Commission's jursidication...

PART II. LIE DETECTOR TESTS

§378-26 Definitions. As used in this part:
     "Department" means the department of labor and industrial relations.
     "Director" means the director of labor and industrial relations.
     "Employee" means any individual in the employment of an employer.
     "Employer" includes any individual, partnership, association, corporation, business trust, legal representative, receiver, trustee, or successor of any of the same, or any organized group of persons, acting directly or indirectly in the interest of any employer in relation to an employee.
     "Lie detector test" means a test to detect deception or to verify the truth of statements through the use of any psychophysiological measuring device, such as, but not limited to, polygraph tests and voice stress analyzers.
     "Person" means one or more individuals, and includes, but is not limited to, a partnership, association, or corporation, legal representative, trustee, trustee in bankruptcy, receiver, or the State or any of its political subdivisions.
     "Prospective employee" means any individual who has applied for or otherwise actively expressed interest in employment with an employer. [L 1985, c 241, pt of §1]

§378-26.5 Unlawful practices. It shall be unlawful for any employer to:

Require a prospective employee or employee to submit to a lie detector test as a condition of employment or continued employment;

Terminate or otherwise discriminate against any employee or prospective employee for refusing to submit to a lie detector test;

Ask an employee or prospective employee whether the employee or prospective employee is willing to submit to a lie detector test unless the employee or prospective employee is informed orally and in writing that the test is voluntary and the refusal to submit to the test will not result in termination of the employee or will not jeopardize the prospective employee's chance of a job;

Subject a prospective employee to a lie detector test which includes inquiries deemed unlawful under section 378-2;

Utilize any device that intrudes into any part or cavity of the body for the purpose of truth verification; or

Discharge or otherwise discriminate against any employee or prospective employee because such person has filed a complaint, testified, or assisted in any proceeding respecting the unlawful practices prohibited under this part.

[L 1985, c 241, pt of §1]

§378-27 Exception. Nothing in this part shall be deemed to:

Repeal or affect any law or ordinance or government rule or regulation having the force and effect of law;
Apply to lie detector tests administered by any law enforcement agency;
Apply to the United States and any subdivision thereof;
Conflict with or affect the application of security regulations in employment established by the United States or the State; or
Apply to psychological tests administered by a law enforcement agency to determine the suitability of a candidate for employment with the law enforcement agency.

[L 1985, c 241, pt of §1]

§378-27.5 Enforcement jurisdiction; complaint against unlawful practice.
(a) The department shall have jurisdiction over practices made unlawful by this part. Any prospective employee or employee claiming to be aggrieved by an unlawful practice may file with the department a verified complaint in writing which shall state the name and address of the prospective employer or employer alleged to have committed the unlawful practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the department. The attorney general, or the department upon its own initiative, in like manner, may make and file such a complaint.

(b) A complaint may be filed on behalf of a class by the attorney general or the department, and a complaint so filed may be investigated, conciliated, and litigated on a class action basis.

(c) No complaint shall be filed after the expiration of thirty days after the date upon which the alleged unlawful practice occurred or is discovered to have occurred, whichever is later. [L 1985, c 241, pt of §1]

§378-28 Power of department to prevent unlawful practice.
(a) After the filing of any complaint, or whenever it appears to the department that an unlawful practice may have been committed, the department shall conduct an investigation in connection therewith. At any time after the filing of a complaint, but prior to the issuance of a determination as to whether there is or is not cause to believe that this part has been violated, the parties may agree to resolve the complaint through a settlement.

(b) If the department determines after such investigation that there is cause to believe that this part has been violated, the department shall demand that the respondent cease such unlawful practice. In addition to the penalty specified in section 378-29.3 the department may order appropriate affirmative action, including, but not limited to, hiring, reinstatement, or upgrading of employees, with or without backpay, as, in the judgment of the department, will effectuate the purpose of this part.

(c) The department may commence a civil action in circuit court seeking appropriate relief. In a civil action brought pursuant to this subsection:

The director may join various complainants in one cause of action;

The director shall not be required to pay the filing fee or other costs or fees of any nature or to file a bond or other security of any nature in connection with such action or with proceedings supplementary thereto, or as a condition precedent to the availability to the director of any process in aid of such action or proceedings;

In no event shall any action be brought more than three years after the complaint was filed with the department.

In any action brought pursuant to this part, if the court finds that a respondent has engaged in or is engaging in an unlawful practice as defined in this part, the court may enjoin the respondent from engaging in such unlawful practice and order such affirmative action as may be appropriate, including, but not limited to fines, reinstatement, hiring, or upgrading of employees and prospective employees, with or without backpay, or any other equitable relief as the court deems appropriate.

(e) In any action brought pursuant to this part, if any judgment obtained by the director against the respondent remains unsatisfied for a period of thirty days after such judgment is entered, the director may request the circuit court to compel the respondent to comply with the judgment, including, but not limited to, an order directing the respondent to cease doing business until the respondent has complied with the judgment.

(f) Whenever it appears to the director that an employer is engaged in any act or practice which constitutes or may constitute, now or later, a violation of this part, or any related rule, the director may bring an action in the circuit court of the circuit in which it is charged that the act or practice complained of occurred or is about to occur to enjoin the act or practice and to enforce compliance with this part or with the rule, and upon a proper showing, a permanent or temporary injunction or decree or restraining order shall be granted without bond.

(g) In any action brought under this part, the court may in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of action, and reasonable attorney's fees, to be paid by the defendant. [L 1985, c 241, pt of §1]

§378-28.5 Investigation; oaths; affidavits; subpoena; witnesses; immunities.
(a) In connection with an investigation of a complaint filed under this part, or whenever it appears to the department that an unlawful practice may have been or is being committed, the director or an authorized representative shall have access to the premises of the parties or persons reasonably connected thereto, records, documents, and other material relevant to the complaint and shall have the right to examine, photograph, and copy such material, and may question such employees and make such investigation to determine whether any person has violated this part or any rule or regulation issued under this part or which may aid in the enforcement of this part.

(b) The director or an authorized representative may administer oaths and may issue subpoenas or subpoena duces tecum to compel the attendance and testimony of witnesses or the production of books, payrolls, records, correspondence, documents, or any other material relating to any matter under investigation.

(c) If a person fails to comply with a subpoena issued under this section, any circuit court, upon application of the director or the director's authorized representative, may issue an order requiring compliance. [L 1985, c 241, pt of §1]

§378-29 Rules. The director shall make such rules unde chapter 91, not inconsistent with this part as in the judgment of the director are appropriate to carry out this part and for the efficient administration thereof. [L 1985, c 241, pt of §1]

§378-29.3 Penalties.
(a) Civil. Any employer found in violation of this part shall be subject to a fine of not less than $100 nor more than $1,000 to be collected by the director and such fine shall not be suspended. Each violation shall constitute a separate offense. Amounts so collected by the director shall be paid into the general fund.

(b) Criminal. Whoever intentionally resists, prevents, impedes, or interferes with the department or any of its agents or representatives in the performance of duties pursuant to this part, or who in any manner intentionally violates the law, shall be fined not more than $1,000, or imprisoned not more than one year, or both.

(c) All criminal actions for violations of this part or any rule issued pursuant thereto, shall be prosecuted by the attorney general or public prosecutor. [L 1985, c 241, pt of §1]

PART III. UNLAWFUL SUSPENSION OR DISCHARGE

§378-31 Definitions. As used in this part:
     "Appeal board" means the labor and industrial relations appeal board.
     "Department" means the department of labor and industrial relations.
     "Director" means the director of labor and industrial relations.
     "Employee" includes any person suffered or permitted to work.
     "Employer" includes any individual, partnership, association, joint-stock company, trust, corporation, the personal representative of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any persons, but shall not include the State or any political subdivision thereof or the United States.
     "Wages" means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation. It shall include the reasonable cost, as determined by the director under chapter 387, to the employer of furnishing an employee with board, lodging, or other facilities if the board, lodging, or other facilities are customarily furnished by the employer to the employer's employees but shall not include tips or gratuities of any kind. [L 1967, c 22, pt of §1; HRS §378-31; am L 1976, c 200, pt of §1; gen ch 1985]

§378-32 Unlawful suspension, barring, discharge, withholding pay, demoting, or discrimination. (a) It shall be unlawful for any employer to suspend, discharge, or discriminate against any of the employer's employees:

Solely because the employer was summoned as a garnishee in a cause where the employee is the debtor or because the employee has filed a petition in proceedings for a wage earner plan under Chapter XIII of the Bankruptcy Act; or
Solely because the employee has suffered a work injury which arose out of and in the course of the employee's employment with the employer and which is compensable under chapter 386 unless the employee is no longer capable of performing the employee's work as a result of the work injury and the employer has no other available work which the employee is capable of performing. Any employee who is discharged because of the work injury shall be given first preference of reemployment by the employer in any position which the employee is capable of performing and which becomes available after the discharge and during the period thereafter until the employee secures new employment. This paragraph shall not apply to any employer in whose employment there are less than three employees at the time of the work injury or who is a party to a collective bargaining agreement which prevents the continued employment or reemployment of the injured employee;
Because the employee testified or was subpoenaed to testify in a proceeding under this part; or
Because an employee tested positive for the presence of drugs, alcohol, or the metabolites of drugs in a substance abuse on-site screening test conducted in accordance with section 329B-5.5; provided that this provision shall not apply to an employee who fails or refuses to report to a laboratory for a substance abuse test pursuant to section 329B-5.5

(b) It shall be unlawful for an employer or a labor organization to bar or discharge from employment, withhold pay from, or demote an employee because the employee uses accrued and available sick leave; provided that:

(1) After an employee uses three or more consecutive days of sick leave, an employer or labor organization may require the employee to provide written verification from a physician indicating that the employee was ill when the sick leave was used;

(2) This subsection shall apply only to employers who:

Have a collective bargaining agreement with their employees; and
Employ one hundred or more employees; and

(3) Nothing in this subsection shall be construed to supersede any provision of any collective bargaining agreement or employment benefits program or plan that provides greater employee benefits or rights. [[L 1967, c 22, pt of §1; HRS §378-32; am L 1970, c 64, §2; am L 1981, c 10, §1 and c 13, §1; gen ch 1985; am L 2007, c 179, §3; am L 2011, c 118, §1]

§378-33 Complaint against unlawful suspension, discharge, or discrimination.
(a) Any employee aggrieved by an alleged unlawful suspension, discharge, or discrimination may file with the department of labor and industrial relations a complaint in writing, stating the name and address of the employer alleged to have committed the unlawful suspension, discharge, or discrimination, and shall set forth the particulars thereof and other information as may be required by the department.

(b) No complaint shall be filed after the expiration of thirty days after the alleged act of unlawful suspension, discharge, or discrimination, or after the employee learns of the suspension or discharge, except that a compliant for an alleged act of unlawful discharge under section 378-32(2) occurring while the aggrieved employee is still physically or mentally incapacitated and unable to work also may be filed before the expiration of thirty days after the date the aggrieved employee is able to return to work. [L 1967, c 22, pt of §1; HRS §378-33; am L 1974, c 150, §1; am L 1981, c 10, §2; am L 1984, c 196, §1]

§378-34 Proceeding and hearing on complaint.
(a) After the filing of any complaint, the department of labor and industrial relations shall serve a copy of the complaint upon the employer charged. Service may be by delivery to the employer or by mail. The employer may file an answer to the complaint.

(b) A hearing on the complaint shall be held by the department in conformance with chapter 91. [L 1967, c 22, pt of §1; HRS §378-34]

§378-35 Findings and order. If the department of labor and industrial relations finds, after a hearing, that an employer has unlawfully suspended, discharged or discriminated against an employee in violation of section 378-32, the department may order the reinstatement, or reinstatement to the prior position, as the case may be, of the employee with or without backpay or may order the payment of backpay without any such reinstatement. [L 1967, c 22, pt of §2; HRS §378-35; am L 1981, c 10, §3]

§378-36 Judicial review. Any person aggrieved by the order of the department of labor and industrial relations shall be entitled to judicial review as provided by section 91-14. [L 1967, c 22, pt of §1; HRS §378-36]

§378-37 Enforcement of order; judgment rendered thereon. If an employer fails or neglects to comply with the final order of the department of labor and industrial relations from which no appeal has been taken as provided by this part, the department or the employee affected may apply to the circuit court of the judicial circuit in which the employer resides or transacts business for a judgment to enforce the provisions of the final order and for any other appropriate relief. In any proceeding to enforce the provisions of the final order, the department or the employee affected need only file with the court proof that notice of the hearing was given, a certified copy of the final order, and proof that the final order was served. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though the judgment had been rendered in an action duly heard and determined by the court. [L 1967, c 22, pt of §1; HRS §378-37; am L 1986, c 21, §1]

§378-38 Rules and regulations. The director of labor and industrial relations shall adopt rules and regulations as the director deems necessary for the purpose of carrying out this part. [L 1967, c 22, pt of §1; HRS §378-38; am imp L 1984, c 90, §1]

PART IV. FAIR REPRESENTATION

§378-51 Action against labor organization, limitation. Any complaint, whether founded upon any contract obligation or for the recovery of damage or injury to persons or property, by an employee against a labor organization for its alleged failure to fairly represent the employee in an action against an employer shall be filed within ninety days after the cause of action accrues, and not thereafter.
Where the alleged failure to fairly represent an employee arises from a grievance, the cause of action shall be deemed to accrue when an employee receives actual notice that a labor organization either refuses or has ceased to represent the employee in a grievance against an employer. Where the alleged failure is related to negotiations or collective bargaining, the cause of action shall be deemed to accrue when the applicable collective bargaining agreement or amendment thereto is executed. [L 1980, c 35, §1]

PART V. WHISTLEBLOWERS' PROTECTION ACT

A. General Provisions

§378-61 Definitions. As used in this part:
     "Employee" means a person who performs a service for wages or other remuneration under a contract for hire, written or oral, express or implied. Employee includes a person employed by the State or a political subdivision of the State.
     "Employer" means a person who has one or more employees. Employer includes an agent of an employer or of the State or a political subdivision of the State.
     "Person" means an individual, sole proprietorship, partnership, corporation, association, or any other legal entity.
     "Public body" means:

A state officer, employee, agency, department, division, bureau, board, commission, committee, council, authority, or other body in the executive branch of state government;
An agency, board, commission, committee, council, member, or employee of the legislative branch of the state government;
A county, city, intercounty, intercity, or regional governing body, a council, special district, or municipal corporation, or a board, department, commission, committee, council, agency, or any member or employee thereof;
Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body;
A law enforcement agency or any member or employee of a law enforcement agency; or
The judiciary and any member or employee of the judiciary.

"Public employee" means any employee of the State or any county, or the political subdivision and agencies of the State or any county, any employee under contract with the State or any county, any civil service employee, any probationary or provisional employee of the State or county, and any employee of any general contractor or subcontractor undertaking the execution of a contract with a governmental contracting agency, as defined in section 104-1.
"Public employer" means the State and any county, the political subdivisions and agencies of the State and any county, and any general contractor or subcontractor undertaking the execution of a contract with a governmental contracting agency, as defined in section 104-1, and includes any agent thereof. [L 1987, c 267, pt of §1; am L 2011, c 166, §5]

§378-62 Discharge of, threats to, or discrimination against employee for reporting violations of law. An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

The employee, or a person acting on behalf of the employee, reports or is about to report to the employer, or reports or is about to report to a public body, verbally or in writing, a violation or a suspected violation of:
1. A law, rule, ordinance, or regulation, adopted pursuant to law of this State, a political subdivision of this State, or the United States; or
2. A contract executed by the State, a political subdivision of the State, or the United States,
An employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [L 1987, c 267, pt of §1; am L 2002, c 56, §2]

§378-63 Civil actions for injunctive relief or damages.
(a) A person who alleges a violation of this part may bring a civil action for appropriate injunctive relief, or actual damages, or both within two years after the occurrence of the alleged violation of this part.

(b) An action commenced pursuant to subsection (a) may be brought in the circuit court for the circuit where the alleged violation occurred, where the complainant resides, or where the person against whom the civil complaint is filed resides or has a principal place of business.

(c) As used in subsection (a), "damages" means damages for injury or loss caused by each violation of this part, including reasonable attorney fees. [L 1987, c 267, pt of §1; am L 2002, c 56, §3]

§378-64 Remedies ordered by court. A court, in rendering a judgment in an action brought pursuant to this part, shall order, as the court considers appropriate, reinstatement of the employee or public employee, payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney's fees and witness fees, if the court determines that the award is appropriate. [L 1987, c 267, pt of §1; am L 2011, c 166, §6]

§378-65 Penalties for violations.
(a) A person or public employer who violates this part shall be fined not less than $500 nor more than $5,000 for each violation.

(b) A civil fine which is ordered pursuant to this part shall be deposited with the director of finance to the credit of the general fund of the State. [L 1987, c 267, pt of §1; am L 2002, c 56, §4; am L 2011, c 166, §7]

§378-66 Collective bargaining and confidentiality rights, takes precedence.
(a) (a) This subpart shall not be construed to diminish or impair the rights of a person under any collective bargaining agreement, nor to permit disclosures which would diminish or impair the rights of any person to the continued protection of confidentiality of communications where statute or common law provides such protection.

(b) Where a collective bargaining agreement provides an employee rights and remedies superior to the rights and remedies provided herein, contractual rights shall supersede and take precedence over the rights, remedies, and procedures provided in this subpart. Where a collective bargaining agreement provides inferior rights and remedies to those provided in this subpart, the provisions of this subpart shall supersede and take precedence over the rights, remedies, and procedures provided in collective bargaining agreements. [L 1987, c 267, pt of §1; am L 2011, c 166, §8]

§378-67 Compensation for employee participation in investigation, hearing, or inquiry. This subpart shall not be construed to require an employer to compensate an employee for participation in an investigation, hearing, or inquiry held by a public body in accordance with section 378-62 of this subpart. [L 1987, c 267, pt of §1; am L 2011, c 166, §9]

§378-68 Notices of employee protections and obligations. An employer shall post notices and use other appropriate means to keep the employer's employees informed of their protections and obligations under this subpart. [L 1987, c 267, pt of §1; am L 2011, c 166, §10]

§378-69 Conflict with common law, precedence. The rights created herein shall not be construed to limit the development of the common law nor to preempt the common law rights and remedies on the subject matter of discharges which are contrary to public policy. In the event of a conflict between the terms and provisions of this part and any other law on the subject the more provisions favoring the employee shall prevail. [L 1987, c 267, pt of §1]

§378-70 Protected disclosure by a public employee. (a) In addition to any other protections under this part, a public employer shall not discharge, threaten, or otherwise discriminate against a public employee regarding the public employee's compensation, terms, conditions, location, or privileges of employment because the public employee, or a person acting on behalf of the public employee, reports or is about to report to the public employer or a public body, verbally or in writing:

(1) Any violation or suspected violation of a federal, state, or county law, rule, ordinance, or regulation; or

(2) Any violation or suspected violation of a contract executed by the State, a political subdivision of the State, or the United States,

unless the employee knows that the report is false.

(b) Every public employer shall post notices pertaining to the application of sections 378-70 and 396-8(e), as shall be prescribed by the department of labor and industrial relations, in conspicuous places in every workplace. [L 2011, c 166, §4]

[PART VI.] VICTIMS LEAVE

[A.] General Provisions

[§378-71] Definitions. As used in this part:
     "Child" means an individual who is a biological, adopted, or foster son or daughter; a stepchild; or a legal ward of an employee.
     "Course of conduct" means acts over any period of time of repeatedly maintaining a visual or physical proximity to a person or conveying verbal or written threats, including threats conveyed through electronic communications or threats implied by conduct.
     "Domestic abuse" means conduct defined in section 586-1.
     "Domestic or sexual violence" means domestic abuse, sexual assault, or stalking.
     "Electronic communications" includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager.
     "Employee" means a person who performs services for hire for not fewer than six consecutive months for the employer from whom benefits are sought under this chapter.
     "Health care provider" means a physician as defined under section 386-1.
     "Sexual assault" means any conduct proscribed by chapter 707, part V.
     "Stalking" means engaging in a course of conduct directed at a specifically targeted person that would cause a reasonable person to suffer substantial emotional distress or to fear bodily injury, sexual assault, or death to the person or to the person's spouse, parent, child, or any other person who regularly resides in the person's household, and where the conduct does cause the targeted person to have such distress or fear.
     "Victim services organization" includes:

A nonprofit, nongovernmental organization that provides assistance to victims of domestic or sexual violence or to advocates for such victims, including a rape crisis center;

An organization operating a shelter or providing professional counseling services; or

An organization providing assistance through the legal process. [L 2003, c 60, pt of §2]

[B.] Victims Leave

[§378-72] Leave of absence for domestic or sexual violence.
(a) An employer employing fifty or more employees shall allow an employee to take up to thirty days of unpaid victim leave from work per calendar year, or an employer employing not more than forty-nine employees shall allow an employee to take up to five days of unpaid leave from work per calendar year, if the employee or the employee's minor child is a victim of domestic or sexual violence; provided the leave is to either:

Seek medical attention for the employee or employee's minor child to recover from physical or psychological injury or disability caused by domestic or sexual violence;

Obtain services from a victim services organization;

Obtain psychological or other counseling;

Temporarily or permanently relocate; or

Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence, or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee's minor child or to enhance the safety of those who associate with or work with the employee.

(b) An employee's absence from work that is due to or resulting from domestic abuse or sexual violence against the employee or the employee's minor child as provided in this section shall be considered by an employer to be a justification for leave for a reasonable period of time, not to exceed the total number of days allocable for each category of employer under subsection (a).

"Reasonable period of time" as used in this section means:

Where due to physical or psychological injury to or disability to the employee or employee's minor child, the period of time determined to be necessary by the attending health care provider, considering the condition of the employee or employee's minor child, and the job requirements; and
Where due to an employee's need to take legal or other actions, including preparing for or participating in any civil or criminal legal proceeding, obtaining services from a victim services organization, or permanently or temporarily relocating, the period of time necessary to complete the activity as determined by the employee's or employee's minor child's attorney or advocate, court, or personnel of the relevant victim services organization.

(c) Where an employee is a victim of domestic or sexual violence and seeks leave for medical attention to recover from physical or psychological injury or disability caused by domestic or sexual violence, the employer may request that the employee provide:

A certificate from a health care provider estimating the number of leave days necessary and the estimated commencement and termination dates of leave required by the employee; and
Prior to the employee's return, a medical certificate from the employee's attending health care provider attesting to the employee's condition and approving the employee's return to work.

(d) Where an employee has taken not more than five calendar days of leave for non-medical reasons, the employee shall provide certification to the employer in the form of a signed statement within a reasonable period after the employer's request, that the employee or the employee's minor child is a victim of domestic or sexual violence and the leave is for one of the purposes enumerated in subsection (a). If the leave exceeds five days per calendar year, then the certification shall be provided by one of the following methods:

A signed written statement from an employee, agent, or volunteer of a victim services organization, from the employee's attorney or advocate, from a minor child's attorney or advocate, or a medical or other professional from whom the employee or the employee's minor child has sought assistance related to the domestic or sexual violence; or
A police or court record related to the domestic or sexual violence.

(e) If certification is required, no leave shall be protected until a certification, as provided in this section, is provided to the employer.

(f) The employee shall provide the employer with reasonable notice of the employee's intention to take the leave, unless providing that notice is not practicable due to imminent danger to the employee or the employee's minor child.

(g) Nothing in this section shall be construed to prohibit an employer from requiring an employee on victim leave to report not less than once a week to the employer on the status of the employee and intention of the employee to return to work.

(h) Upon return from leave under this section, the employee shall return to the employee's original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges, except that nothing in this subsection shall be construed to entitle any restored employee to the accrual of:

Any seniority or employment benefits during any period of leave, unless the seniority or benefits would be provided to a similarly situated employee who was on leave due to a reason other than domestic or sexual violence; or
Any right, benefit, or position of employment to which the employee would not have otherwise been entitled.

(i) All information provided to the employer under this section, including statements of the employee, or any other documentation, record, or corroborating evidence, and the fact that the employee or employee's minor child has been a victim of domestic or sexual violence or the employee has requested leave pursuant to this section, shall be maintained in the strictest confidence by the employer, and shall not be disclosed, except to the extent that disclosure is: