2020 Hawaii Revised Statutes
Title 21. Labor and Industrial Relations
378. Employment Practices
378-62 Discharge of, threats to, or discrimination against employee for reporting violations of law.

§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:

(1) 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:

(A) A law, rule, ordinance, or regulation, adopted pursuant to law of this State, a political subdivision of this State, or the United States; or

(B) 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; or

(2) 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]

Case Notes

Employee's wrongful termination action under Hawaii whistleblower's act preempted by ERISA whistleblower provision. 999 F.2d 408 (1993).

Because plaintiff did not have full and fair opportunity to litigate claims sounding in wrongful discharge in plaintiff's unemployment compensation benefits proceeding, the court refused to apply either issue preclusion or claim preclusion. 866 F. Supp. 459 (1994).

Because §378-2 and this section did not contain limitation periods, court invoked State's general personal injury statute of limitations, §657-7; plaintiff's state law claims barred where neither the collective bargaining proceedings nor the equal employment opportunity commission proceedings tolled the statute of limitations. 874 F. Supp. 1095 (1994).

Plaintiff's state whistleblower claim under this section barred, where plaintiff did not file complaint until well after the ninety-day period after the most recent alleged violation of the whistleblowers' protection act. 75 F. Supp. 2d 1113 (1999).

Count of complaint alleging that plaintiff was wrongfully discharged in violation of 31 U.S.C. §3730(h) of the False Claims Act was time-barred, where the court found that the Hawaii Whistleblowers' Protection Act provided the state cause of action most closely analogous to a 31 U.S.C. §3730(h) claim for retaliatory discharge, and thus applied a ninety-day statute of limitations to plaintiff's claim for retaliatory discharge. 362 F. Supp. 2d 1203 (2005).

Questions of material fact existed as to plaintiff's claim of retaliation in violation of the Hawaii Whistleblowers' Protection Act; the court found the fact that the adverse actions described occurred during the ongoing resolution of plaintiff's complaint sufficient to infer a causal connection between the two activities. 410 F. Supp. 2d 939 (2005).

Plaintiff failed to establish any issue of material fact as to whether plaintiff engaged in protected conduct by requesting compensation documentation or whether the conduct was a substantial motivating factor in defendants' retaliatory actions. 490 F. Supp. 2d 1062 (2007).

Defendant's motion for summary judgment as to plaintiffs' claim for violation of the Hawaii Whistleblowers' Protection Act denied, where issues of material fact existed as to defendant's motivation for removing and terminating plaintiffs; the government contractor defense did not apply in the case. 654 F. Supp. 2d 1122 (2008).

Regardless of whether plaintiff did or did not need to exhaust plaintiff's Whistleblowers' Protection Act claim, plaintiff's claim failed on the merits; plaintiff failed to demonstrate any causal connection between any action plaintiff took that plaintiff said was protected, and any conduct by plaintiff's employer that plaintiff might identify as retaliatory. 937 F. Supp. 2d 1237 (2013).

Whether exhaustion of administrative remedies was required for a Whistleblowers' Protection Act claim, discussed. Plaintiff's claim failed without regard to any exhaustion requirement, where plaintiff took more than two years after the date of the last adverse action that plaintiff identified as relevant to the lawsuit to file suit. 938 F. Supp. 2d 1000 (2013).

Plaintiff failed to identify an adverse employment action, where plaintiff's employment was not terminated so it could not be construed as an adverse employment action and a notation in plaintiff's file was not an adverse employment action. 945 F. Supp. 2d 1133 (2013).

Plaintiff's actions, which allegedly caused defendant's retaliation, were attenuated from the claimed retaliation in the amended complaint; among other things, no causal connection existed between plaintiff's April 2007 threat to report defendant's use of false promotional material and plaintiff's 2009 claims. 945 F. Supp. 2d 1133 (2013).

There was a question of fact as to whether plaintiff suffered an actionable change in compensation, terms, conditions, location, or privileges of employment for plaintiff to establish a prima facie case of retaliation under the Hawaii Whistleblower's Protection Act, precluding summary judgment for defendant. District court concluded that a jury must determine whether the totality of actions taken against plaintiff were reasonably likely to deter an employee from engaging in protected conduct. 124 F. Supp. 3d 1045 (2015).

Where less than two months separated employee plaintiff's alleged whistleblowing from employee plaintiff's transfer, a reasonable jury could infer causation based on the timing of the events. 124 F. Supp. 3d 1045 (2015).

With respect to plaintiff employee's retaliation claim under the Hawaii Whistleblowers' Protection Act, defendant demonstrated legitimate, nondiscriminatory reasons for: (1) relocating plaintiff employee to a different workspace to reduce involvement with another co-worker; and (2) reassignment to a different financial advisor because previous advisor wanted a client associate with more regular hours and one who would complete work in a more timely manner. Further, it was common for defendant employer to reassign client associates. 124 F. Supp. 3d 1045 (2015).

With respect to plaintiff's retaliation claim under the Hawaii Whistleblowers' Protection Act, there was a question of fact as to whether defendant's reasons for reassignment of plaintiff after plaintiff allegedly reported a possible illegal trade were pretextual, precluding summary judgment for defendant. 124 F. Supp. 3d 1045 (2015).

Despite questions of material fact as to whether plaintiff's reporting of defendant's alleged violation of wage and overtime laws was a substantial or motivating factor in plaintiff's termination, defendant met its burden and had uncontested evidence that it would have terminated plaintiff even in the absence of plaintiff's protected activity, and thus, defendant did not retaliate against plaintiff in violation of this section. Plaintiff had multiple documented instances of poor job performance, most of which occurred before plaintiff's protected activity, and defendant had warned plaintiff prior to plaintiff's termination that further inability to follow defendant's policies would result in immediate termination. 125 F. Supp. 3d 1108 (2015).