§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:

     (1)  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;

     (2)  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;

     (3)  Because the employee testified or was subpoenaed to testify in a proceeding under this part; or

     (4)  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:

          (A)  Have a collective bargaining agreement with their employees; and

          (B)  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]


Law Journals and Reviews


  Commentary on Selected Employment and Labor Law Decisions Under the Lum Court.  14 UH L. Rev. 423 (1992).


Case Notes


  Appellate court affirmed district court's denial of defendant's motion for summary judgment where defendant, a food distributor, allegedly forced the resignation of plaintiff, a delivery truck driver, due to a shoulder injury; finding that there was no indication that a workplace injury could not serve as the disability in an Americans with Disability Act claim.  In other words, just because an injury happened at work does not mean that a plaintiff can only assert a claim under this section or §378-35.  908 F.3d 428 (2018).

  Policy of this section discussed; section does not prohibit termination or other discrimination against employees who are not capable of performing their own or other available work.  680 F. Supp. 1456 (1988).

  Not violated by discharge of employee allegedly in retaliation for participating in union grievance meeting and complaining about understaffing.  779 F. Supp. 1265 (1991).

  If plaintiff was alleging public policy wrongful discharge claim based on Parnar v. Americana Hotels, Inc., and paragraph (2) of this section, plaintiff's claim was barred, since chapter 378 provided sufficient remedy for its violation.  938 F. Supp. 1503 (1996).

  Employee may file complaint before employee is able to return to work; section not preempted by federal law.  67 H. 25, 677 P.2d 449 (1984).

  Section grants employee whose employment is terminated due to a work related injury first preference to reemployment if employee regains capacity to perform some type of work with the employer; preference is voided if there is some provision preventing reemployment in the collective bargaining agreement or if employee secures employment elsewhere.  70 H. 1, 757 P.2d 641 (1988).

  Where public policy against terminating employee solely because employee suffered a compensable work injury is evidenced in this section and remedy is available under §378‑35, judicially created claim of wrongful discharge in violation of public policy could not be maintained.  87 H. 57 (App.), 951 P.2d 507 (1998).

  Discussed:  945 F. Supp. 2d 1133 (2013).