Hawaii Supreme Court Delivers a Mixed Plate for Employers

Photo: Creative Commons

Photo: Creative Commons

The Hawaii Supreme Court recently ruled that supervisors cannot be held personally liable under Hawaii’s employment discrimination law.  This decision has settled a long-time dispute among lawyers, and even Hawaii’s federal court judges, as to whether a supervisor could be sued for employment discrimination under state law.  This is welcome news for supervisors!  (The caveat is that a supervisor can be sued for aiding, abetting, inciting, compelling, or coercing another employee in the discrimination and harassment.)

In the same case, however, the Court declined to apply the Faragher/Ellerth defense for harassing conduct by supervisors.  Under this defense, an employer can avoid liability for harassment by a supervisor if it can prove: (1) the employer did not engage in a “tangible employment action”; (2) the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and (3) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.  This defense often comes in handy when the employee did not make any complaints of harassment to management.

So what does this all mean?  The case provides much needed relief to supervisors, who are just trying to do their jobs.  But, while the supervisor may get off unscathed (see aforementioned caveat), the employer is still on the hook – a really nasty hook – for unlawful harassing conduct by the supervisor.  Employers should regularly and thoroughly train their supervisors on their anti-harassment policy because the ostrich defense may not be effective under Hawaii law.

(Photo courtesy of Varin Tsai / Creative Commons @ Flickr.)

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What Constitutes “Discrimination” These Days?

Don’t we all feel like the black sheep sometimes? (Photo: Creative Commons)

Isn’t it just crazy how many employees these days believe that they have been discriminated against, even after the employer provides legitimate reasons for the layoff or discharge?  After all, we live and work in Hawaii—a state adopting the so-called “at-will” employment rule, right?

Yes and yes.  That may all be true, but…

A recent Hawaii Intermediate Court of Appeals decision should make us, employers, pause and think twice about how we go about disciplining or terminating employees.


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New Sample Notices Available to Inform Employees of the Hawaii Health Connector by October 1, 2013

As a follow up to last week’s posting regarding the upcoming “Health Insurance Marketplace” employee notice deadline, sample “Hawaii” notices can be found below.  The Hawaii samples meet the Department of Labor requirements, and have been tailored to employees in Hawaii by including information about the Hawaii Prepaid Health Care Act and Hawaii’s Health Connector, which is the Health Insurance Marketplace in our state.  Employers can use either the Department of Labor samples or these Hawaii notices.

Sample Notices for Hawaii Employers:

  • If you offer coverage, click here.
  • If you do not offer coverage, click here.

* Terri O’Connell prepared the Hawaii sample notices and concentrates her practice in the area of health care law.

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Notify Your Employees by October 1, 2013 of the Health Insurance Marketplace Coming in 2014

Photo: Creative Commons

Under the Patient Protection and Affordable Care Act, employers covered by the FLSA must provide written notice of the Health Insurance Marketplace to all current employees by October 1, 2013.  Thereafter, the written notice must be provided to new employees at the time of hire.

The Department of Labor has created a sample notice, which can be found here.  The sample notice is for employers that already offer a group health plan to some or all employees.  The sample notice can also be tailored for Hawaii employers in consultation with legal counsel.

[UPDATE 9/13/2013: Sample notices tailored to Hawaii employers can be found in another article.]


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Top 10 Best Practices for Workplace Investigations

Slide1In the world of harassment litigation, the number one question is often whether the employer took immediate action to stop and remedy the (alleged) harassment.  And what often is the first step an employer should take to stop and remedy the (alleged) harassment?  Conduct an investigation, of course!  Here’s a list of top ten best practices for workplace investigations:

1.  Take every complaint seriously.  There are numerous (alleged) instances when an employee will report a co-worker’s comment to a supervisor, believing it to be a form of harassment.  Here’s a tip: don’t laugh or tell the employee that the comment was just a joke!   Even if the employee’s complaint does seem fantastical, an employer can avoid a lengthy and costly litigation if it simply addresses the issue. CONTINUE READING…

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