1. What legal protection does Hawaii provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time, for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Hawaii recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a clear mandate of public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy
To determine what constitutes public policy, Hawaii courts will look to statutes, constitutional provisions, and regulations (at both the state and federal level) to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Hawaii statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Hawaii’s public policy. In both situations, employees are protected from retaliatory discharge.
Hawaii courts have limited the common law public policy exception to situations in which an employee has no statutory remedy (see below). Thus, whistleblowers must likely rely exclusively on the statutory remedies provided in the whistleblower protection statute (discussed below), rather than rely on the common law public policy exception.
In addition, the Hawaii Legislature had adopted statutory protections for certain activities. Notably, Hawaii has a general whistleblower protection statute that protects employees who disclose illegal activity and contractual violations. Also, several other Hawaii statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, occupational safety and health, and workers’ compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that violates a clear mandate of public policy. There are three general categories of activities that are protected:
- Refusing to commit an unlawful act (such as refusing to commit perjury)
- Performing an important public obligation (such as performing jury duty)
- Exercising a statutory right or privilege (such as filing a workers’ compensation claim)
Specifically, Hawaiian employees have been protected from retaliatory discharge in the following examples for:
- Cooperating in a government investigation into an employers’ possible antitrust violations
- Making an inquiry into a payroll deduction
- Complying with regulations designed to protect public health and safety
General Whistleblower Protection: An employee may not be discharged (or discriminated against) in retaliation for the following protected activities:
- Reporting suspected violations of federal, state, or local law to the employer or a public body
- Reporting suspected violations of contracts executed by the federal government, state government, or local government. The report must be made to either a public body or the employer.
- Participating in an investigation, hearing, or inquiry held by a public body
- Participating in a court action
For the purposes of the statute, a public body includes employees in the executive branch of state government, employees in the legislative branch of state government, state agencies, local governing bodies, law enforcement agencies, and members of the judiciary. ⚖ When reporting suspected violations, the report may be made in writing or orally. However, whistleblowing reports made to the media are not protected under this statute. Haw. Rev. Stat. § 378-62.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing a discriminatory employment practice made unlawful under Hawaii’s Fair Employment Practices law (FEP). Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding concerning discriminatory employment practices prohibited by FEP. FEP prohibits discrimination in employment on the basis of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, and arrest and court record. Haw. Rev. Stat. § 378-2.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for exercising a right under the Hawaii Occupational Safety and Health Law (HOSHL). An employee may not be discharged for refusing to operate equipment that is in an unsafe condition or to engage in unsafe practices made unlawful under HOSHL. An employee may not be discharged for filing a complaint, instituting a proceeding, or testifying in a proceeding under HOSHL. Haw. Rev. Stat. § 396-8(e).
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for suffering work injuries that are compensable under workers’ compensation. Courts have construed this provision as protecting employees from retaliatory discharge. ⚖
3. How do I file a whistleblower or retaliation claim in Hawaii?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years ⚖ of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years ⚖ of the retaliatory action. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the Hawaii Civil Rights Commission (HCRC). The complaint must be filed within 180 days ⚖ of the retaliatory action. If you believe you have a claim, you should contact HCRC immediately. The HCRC has made a pre-complaint questionnaire available on their web site in PDF form. The HCRC may also be reached at:
Hawaii Civil Rights Commission
830 Punchbowl St., Room 411
Honolulu, HI 96813
Phone: (808) 586-8636
Fax: (808) 586-8655
TDD: (808) 586-8692
Alternatively, an employee may file a lawsuit in an appropriate court, but only after first filing a complaint with the HCRC and then obtaining a “right to sue” letter from the commission. The lawsuit would then need to be filed within 90 days of receiving the “right to sue” letter. ⚖
Occupational Safety and Health: An employee may file a complaint with the Hawaii Department of Labor and Industrial Relations, Occupational Safety and Health Division (HIOSH). The complaint must be filed within 60 days ⚖ of the retaliatory action. If you believe you have a claim, you should contact HIOSH immediately at:
Princess Keelikolani Bldg.
830 Punchbowl Street #425
Honolulu, HI 96813
Phone: 808 586-9100
Fax: 808 586-9104
Workers’ Compensation: An employee may file a complaint with the Hawaii Department of Labor and Industrial Relations. The complaint must be filed within 30 days ⚖ of the retaliatory action. If you believe you have a claim, you should contact the Department of Labor and Industrial Relations immediately at:
Hawaii Department of Labor and Industrial Relations
Princess Ruth Keelikolani Bldg.
830 Punchbowl Street
Honolulu, HI 96813
Phone: 808 586-8842
Fax: 808 586-9099