Chapter 1 – Preliminary Matters

I. Purpose

This version of the Hawaii Occupational Safety and Health Division (HIOSH) Whistleblower Investigations Manual (WIM) supersedes the December 1, 2018, version. This manual outline legal concepts, procedures, and other information related to the handling of retaliation complaints under Hawaii Revised Statutes (HRS) § 396-8(e), for which responsibility was delegated to HIOSH and may be used as a ready reference. 

II. Scope

The WIM shall apply to all whistleblower investigations conducted under the jurisdiction of HIOSH. Complainants who fall outside of HIOSH jurisdiction will be referred to the appropriate agencies. This program directive is applicable HIOSH-wide, specifically in the Whistleblower Unit. Furthermore, it delineates the roles and responsibilities of the different branches within HIOSH and provides guidance to facilitate the HIOSH Whistleblower Protection Program (WPP) and its related activities. 

III. References

A. Hawaii Revised Statutes¹

• Hawaii Revised Statute §396-8(e) 
• Hawaii Revised Statute §396-11(a) 
• Hawaii Revised Statute §396-11(e)
• Hawaii Revised Statute §396-11(h) 
• Hawaii Revised Statute §396-11(i) 
• Hawaii Revised Statute §396-11(j) 
• Hawaii Revised Statute §396-12 

B. Hawaii Administrative Rules

• Hawaii Administrative Rules Chapter 51 
• Hawaii Administrative Rules Chapter 57 
• Hawaii Administrative Rules Chapter 91 

C. HIOSH Directives

• OSHA Instruction CPL 02-03-003, Whistleblower Investigations Manual, effective November 30, 2018; Revised March1, 2021. 
• HIOSH Field Operations Manual, CPL 02-00-160, effective August 2, 2016. 
• HIOSH Instruction CPL 02-02-072, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, August 22, 2007, adopted by HIOSH on December 19, 2007 
• HIOSH Instruction CPL 02-00-098 (formerly CPL 2.98), Guidelines for Case File Documentation for Use with Videotapes and Audiotapes, October 12, 1993, adopted by HIOSH on December 20, 1993. 

D. HIOSH Interoffice Memos

• Interoffice Memo 2021-1 Delegation of Administrator authority for whistleblower signatures. 
• Interoffice Memo 2021-2 Utilization of Disposition Letters for whistleblower investigations. 

E. Federal Statutes

Occupational Safety and Health Act (Section 11(c), 29 USC 660§(c) 

F. Federal Regulations

29 CFR Part 1977 – Discrimination Against Employees Exercising Rights Under the Williams-Steiger Occupational Safety and Health Act of 1970 

G. Federal OSHA Instruction

• CPL  02-03-011 Whistleblower Investigations Manual – April 29, 2022 Memorandum 
• 29 CFR 1954.20 – Complaints About State Program Administration. OSHA Instruction CPL 02-03-009, Electronic Case File System Procedures for the Whistleblower Protection Program, June 18, 2020.  
• OSHA Instruction CSP 01-00-005, State Plan Policies and Procedures Manual, May 6, 2020.  
• OSHA Instruction CPL 02-00-164, OSHA Field Operations Manual (f), April 14, 2020.  
• OSHA Instruction CSP 01-00-005, State Plan Policies and Procedures Manual, May 6, 2020, or subsequent guidance. 
• OSHA Instruction CPL 02-02-072, Rules of Agency Practice and Procedure Concerning  
• OSHA Access to Employee Medical Records, August 22, 2007.  
• OSHA Instruction ADM 03-01-005, OSHA Compliance Records, August 3, 1998.  
• Memorandum Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 CFR 1904.35(b)(1)(iv), October 11, 2018.  
• Memorandum Expanded Administrative Closure Guidance: Updated Procedures to Close Administrative Law Judge (ALJ) Cases that OSHA Lacks Authority to Investigate, September 28, 2017.  
• Memorandum Interim Investigation Procedures for Section 29 CFR 1904.35(b)(1)(iv), November 10, 2016.  
• Memorandum Interpretation of 1904.35(b)(1)(i) and (iv), October 19, 2016.  
• Memorandum New Policy Guidelines for Approving Settlement Agreements in Whistleblower Cases, August 23, 2016.  
• Memorandum Clarification of the Express Promise of Confidentiality Prior to Confidential Witness Interviews, July 15, 2016.  
• Memorandum Clarification of Guidance for Section 11(c) Cases Involving Temporary Workers, May 11, 2016.  
• Memorandum Procedures for Significant Whistleblower Cases, September 27, 2023.  
• Memorandum Tolling of Limitation Periods Under OSHA Whistleblower Laws by Private Agreements and for Other Reasons, January 28, 2016.  
• Memorandum Clarification of the Work Refusal Standard Under 29 CFR 1977.12(b)(2), January 11, 2016.  
• Memorandum Taxability of Settlements Chart, October 1, 2015.  
• Memorandum Clarification of the Investigative Standard for OSHA Whistleblower Investigations, April 20, 2015. 
• Memorandum Employer Safety Incentive and Disincentive Policies and Practices, March 12, 2012. 

H. Federal Desk Aid

Occupational Safety and Health Act (OSH Act), Section 11(c) Desk Aid 

IV. Cancellations

 HIOSH Instruction DIS 0-0.9, Discrimination Investigation Manual dated, September 1, 2018; CPL 02-03-002 Whistleblower Investigations Manual and any other previous versions of the Discrimination (Whistleblower) Investigation Manual. 

V. Action Information

A. Responsible Office

Hawaii Occupational Safety & Health Division (HIOSH)

B. Action Offices

Compliance Branches and Administrative Technical Support Branch

C. Information and Evaluation Offices

San Francisco Region, State Plans, OSHA Training Institute

VI. State Impact

A. Notice of Intent and Equivalency Required

The Hawaii State Plan has statutory authority parallel to section 11(c) of the OSH Act and has established policies and procedures for occupational safety and health protection that are at least as effective as federal OSHA 11(c) policies. This manual supersedes the December 1, 2018 instruction. 

B. Appeal Process

This manual has procedures for review of an initial retaliation case determination.² Complainants are afforded the opportunity for reconsideration of an initial dismissal determination within the state. Complainants will be required to exhaust this remedy before federal OSHA will accept a “request for federal review” of a dually filed complaint or a Complaint About State Program Administration (CASPA) regarding a retaliation case filed only with the state. 

C. Dual Filing

The Hawaii State Plan outlines the procedures for informing private-sector Complainants of their right to file a complaint concurrently under section 11(c) with federal OSHA within 30 days of the alleged retaliatory action. This information is succinctly included in the state’s Job Safety and Health Poster, which informs private sector workers of their right to file with federal OSHA. Additionally, complaints submitted electronically via the federal website will, by default, constitute dual filing. Dual filing preserves Complainant’s right to seek a federal remedy should the state not grant appropriate relief. 

D. Reopening Cases

HIOSH does not have the authority to reopen investigations, as determinations and orders become final if not contested within 20 calendar days. In instances where a determination is contested, the Hawaii Labor Relations Board (HLRB) will conduct a de novo hearing, allowing for the introduction of new facts or circumstances. Following a ruling from the HLRB, parties may appeal such decisions to the Intermediate Court of Appeals (ICA). Additionally, complaints that have been administratively closed may be subject to review by the Administrator if the Complainant does not agree with closure (refer to Chapter 2). The Administrator shall determine whether an investigation is warranted in accordance with Hawaii Administrative Rules (HAR) §12-57.1. 

E. Coordination on OSHA Whistleblower Provisions Other Than HIOSH’s HRS §396-8(e) Statute

In addition to section 11(c) of the OSH Act, federal OSHA administers, at the time of this publication, over 20 other whistleblower statutes. Although these statutes are administered solely by federal OSHA, HIOSH personnel are expected to be familiar with these statutes so that investigators are able to recognize allegations which may implicate these laws and inform Complainants of their rights to file with federal OSHA. This manual includes whistleblower complaint coordination procedures to reflect federal OSHA’s administration of these laws. 

F. Action

HIOSH policies and procedures are at least as effective as those of federal OSHA. 

VII. Significant Changes

A. General

1. All letter/document templates were removed from their individual chapters. 
2. Although Chapter 8 deals specifically with section 11(c), it only discusses the interface with HIOSH. 
3. The manual as a whole has been restructured such that Chapter 2 now collects and explains the legal concepts and principles that guide whistleblower investigations. Previously, these concepts were introduced throughout the manual. 
4. In alignment with federal OSHA standards, HIOSH has implemented the legal principle of “reasonable cause” to guide the investigative process.
5. Policies initiated by previously-issued memoranda were incorporated into this Instruction. This instruction supersedes all prior memoranda. This incorporation affected all chapters.  Please refer to the memorandum itself if you wish to learn the background of a specific policy. 
6. Formal investigative correspondence, including notifications and determinations, may now be sent by email, delivery receipt required. While use of email for formal investigative correspondence is now allowed, care should be taken to ensure it is a method regularly used by Complainant and/or Respondent, or else a party’s responses may not be timely. 
7. HIOSH must now consult with DAG on all merit cases and on all deferrals. 
8. All references to the Administrator include the Administrator’s designee, except as otherwise noted. The Administrator’s responsibilities may be delegated to a Branch Manager, except as otherwise noted. 
9. The previously designated chapters for Settlement and Remedies have been separated into two distinct chapters: Chapter 6: Remedies and Chapter 7: Settlements.  
10. A section on Definitions, Acronyms, and Terminology has been added to encompass the general terms used in whistleblower investigations. 
11. Agency review and hearing procedures are established for cases of administrative closures that are contested by the Complainant.
12. Clarification is provided regarding injury reporting as a protected activity.
13. A section addressing prospective employers has been added.
14. 89-day disposition letters are issued to facilitate the resolution and completion of investigations.
15. Clarification regarding the inclusion of employer-employee settlement agreements in the file is provided, specifically addressing confidentiality concerns.
16. Bilateral agreements will no longer be recognized by HIOSH.
17.  HIOSH will cease to impose punitive damages consistent with the decisions and interpretations of law established by the Hawaii Labor Relations Board (HLRB), the quasi-judicial adjudicatory body for HIOSH.

B. Chapter 1: Preliminary Matters

1. Introduced the terms ‘Whistleblower Unit’ and HIOSH’s ‘Whistleblower Protection Program (WPP).’ These terms were not used in previous instructions. 
2. Added “Coordination on OSHA Whistleblower Provisions Other Than HIOSH’sHRS § 396-8(e)section. See Chapter 1.VI.E 
3. Deleted the “Referrals” section (Chapter 1.VI.E in previous instruction) as this content is addressed in the section above. 
4. A glossary of common terms and acronyms used in the WIM has been added. See Chapter 1.IX “Definitions, Acronyms, and Terminology.” 
5. Chapter 1.XI. “Functional Responsibilities” now specifies responsibilities related to the OH Branch Manager and HIOSH’s WPP. The functional responsibilities of the SI have been summarized, rather than presented as an exhaustive list of the specific duties in the position description as described in previous instructions. 
6. Added Languages section in Chapter 1.XII. Previously, no such section addressing languages existed. 

C. Chapter 2: Legal Concepts

1. Chapter 2 is new. It consolidates discussion of the legal concepts relevant to whistleblower investigations that were previously introduced throughout the manual.  
2. In alignment with federal OSHA standards, HIOSH has implemented the legal principle of “reasonable cause” to guide the investigative process. It is noted that the standard of “preponderance of evidence” will continue to apply in hearings before the Hawaii Labor Relations Board (HLRB). Refer to Chapter 2.IV. 
3. Reporting a work-related injury or illness clarifies the process for complaints that intersect with Worker’s Compensation claims. This section provides a specific discussion on which agency has the authority to provide whole-remedies and outlines the procedure for deferral until it is determined which entity possesses make-whole authority. See Chapter 2.V.A.2. 
4. Work refusal is governed by the requirements outlined in HAR §12-57-7(b). See Chapter 2.V.A.7. 
5. Cat’s paw theory is introduced in Section V.B. 
6. Causation standards, including “but for” and “contributing factor,” along with references to HLRB decisions, are discussed in Section VI. 
7. Section VII includes a federal section on addressing policies and practices that discourage injury reporting. 

D. Chapter 3: Intake and Evaluation of Complaints

1. The entire chapter has been restructured and reorganized providing a more detailed process for handling complaints under this chapter. 
2. The section on “Receipt of Complaints” has been reorganized under “Incoming Complaints,” which outlines procedures for filing, including who may file, how to file, acceptance of written and oral complaints, the process for receiving complaints, complaints forwarded by other agencies, and requirements for such complaints. See Chapter 3.II. 
3. The section on “Intake and Docketing of Complaints” has been restructured and incorporated into “Screening Interviews and Complaints,” which now provides an overview of complaint/case assignment, initial contact, screening interviews, evaluation of whether a prima facie allegation exists, and tolling procedures. Refer to Chapter 3.III. 
4. The section on “Timeliness of Filing” has been removed and is now addressed within Chapter 3.III. 
5. A new section titled “Initial Complaint Results” has been added, discussing the procedures for administratively closed complaints, informal reviews of administrative closed complaints, and the handling of unresponsive or uncooperative complaints during the screening. Refer to Chapter 3.IV. 
6. A new section titled “Named Respondents” has been incorporated. Refer to Chapter 3.VI. 
7. A new section titled “Notification Letters” has been added. Refer to Chapter 3.VII. 
8. A new section titled “Early Resolution” has been added. Refer to Chapter 3.VIII. 
9. The section titled “Scheduling the Investigation” has been removed. 
10. The Appendix to Chapter 3: Investigation Forms and Letters has been removed. 

E. Chapter 4: Conduct of the Investigation

1. This chapter was previously titled “Case Disposition.” It is now titled “Conduct of Investigation” and the entire chapter has been restructured. 
2. A new section titled “General Principles” has been added, introducing the legal principle “reasonable cause.” Refer to Chapter 4.II. This section was previously titled “Preparation” and the subject is discussed in Chapter 5. 
3. The adoption of electronic case files and the elimination of paper to the fullest extent possible have been implemented. See Chapter 4.III.A.1. 
4. The section “Report of Investigation” has been deleted. This content has been moved and is now discussed in Chapter 5. 
5. A new section “Documenting the Evidence” has been added. See Chapter 4.III.B. 
6. A new titled “Case Activity Log” has been introduced. See Chapter 4.III.C. 
7. A new section titled “Investigative Correspondence” has been added. See Chapter 4.III.D. 
8. A new section “Investigative Research” has been added. See Chapter 4.III.E. 
9. A new section “Referrals and Notifications” has been added. See Chapter 4.IV. 
10. The section “Case Review and Approval by the Supervisory Investigator has been deleted. This subject has been moved and is now discussed in Chapter 5. 
11. A new section titled “Amended Complaint” has been added. See Chapter 4.V. 
12. The section “Administrator’s Determination” has been deleted. However, this subject has been moved and is discussed in Chapter 5. 
13. A new section titled “Lack of Cooperation/Unresponsiveness” has been added. See Chapter 4.VI. 
14. The section “Contest Rights” was deleted. This subject has been moved and is discussed in Chapter 5. 
15. A new section titled “On-site Investigation, Telephonic and Recorded Interviews” has been added. Chapter 4.VII. 
16. A new section titled “Confidentiality” has been included. See Chapter 4.VIII. 
17. A new section titled “Complainant Interview and Contact” has been introduced. See Chapter 4.IX. 
18. A new section titled “Contact with Respondent” has been introduced. See Chapter 4.X. 
19. A new section titled “Unresponsive/Uncooperative Respondent” has been added. See Chapter 4.XI. 
20. A new section titled “Subpoenas, Document and Interview Requests” has been introduced. See Chapter 4.XII. 
21. A new section titled “Party Representation at Witness Interviews has been added. See Chapter 4.XIII. 
22. A new section titled “Records Collection” has been introduced. See Chapter 4.XIV. 
23. A new section titled “Resolve Discrepancies” has been added. See Chapter 4.XV. 
24. A new section titled “Analysis” has been introduced. See Chapter 4.XVI. 
25. A new section titled “Closing Conference has been added. See Chapter 4.XVII. 
26. A new section titled “Document Handling and Requests” has been added. See Chapter 4.XVIII. 

F. Chapter 5: Case Disposition

1. This chapter was previously titled “Documentation and Determination Notice and Order (DNO).” It is now titled “Case Disposition” and outlines the policies and procedures for determining the merits and non-merits of a case. The entire chapter has been comprehensively restructured. 
2. The section on “Screened Complaints” has been removed, and new sections titled, “Review of Investigative File” and “Consultation Between the Investigator and Supervisor” have been added. Refer to Chapter 5.II. 
3. The section on “Case File Organization” has been deleted and replaced with “Report of Investigation.” See Chapter 5.III. 
4. The section titled “Documenting the Investigation” has been removed and replaced with “Case Review and Approval by the Supervisor.” See Chapter V.IV. 
5. A new section on “Case Closing Alternatives” has been added. See Chapter 5.V. 
6. The section on “Determination Notice and Order (DNO)” has been revised. See Chapter 5.VII. 
7. A new section outlining the procedures for issuing merit and non-merit findings, along with examples of legal phrases and language that HIOSH should include, has been added. See Chapter 5.VI. 
8. A new section on “Multi-Respondent Mixed Determinations” has been included. See Chapter 5.VI.D. 
9. A new section on “Dismissal for Lack of Cooperation/Unresponsiveness” has been added. See Chapter 5.VIII. 
10. A new section on “Withdrawal” has been introduced. See Chapter 5.IX. 
11. Appendix to Chapter 5: Notice and Order Forms and Letters were removed. 

G. Chapter 6: Remedies

1. This chapter was previously titled “Remedies and Settlement Agreements,” but it has now been divided into two separated into two chapters: one focusing solely on Remedies and the other on Settlements. Consequently, this entire chapter has been restructured to reflect that change.
2. A new section on General Principles has been added. See Chapter 6.II for details.
3. The section on Emotional Distress, Mental Anguish, and Pain and Suffering has been removed.
4. The prior content regarding punitive damages has been eliminated. However, the section on Punitive Damages has been clarified. Under HIOSH Law, punitive damages are not provided for. Previously, attempts by HIOSH to award punitive damages were met with interpretations by the HLRB stating that such damages are not expressly stipulated in HRS §396-8(e). See Chapter 6.VI for clarification.
5. Although comprising a small percentage of the state’s population, Hawaii does have undocumented workers, as indicated by data from the U.S. Department of Homeland Security and the DLIR. Therefore, a new section on Undocumented Workers has been added.

H. Chapter 7: Settlements

1. This chapter was previously titled “OSHA’s Role in HIOSH Discrimination Cases.” The discussion of settlement agreements, which was previously combined with remedies in Chapter 6, has now been separated and is addressed as a standalone topic in Chapter 7.All forms pertaining to settlements have been removed.
2. An 89-day disposition letter has been incorporated into the settlement policy. Refer to Chapter 7.II for details.
3. The prior provision indicating that the settlement agreement need not be signed by the Complainant—on the basis that HIOSH acts on their behalf—has been deleted. It is now specified that every settlement agreement must be signed by the Complainant. See Chapter 7.III.A.
4. In the section on Settlement Procedures, under Other Remedies, training for managers and employees has been added regarding the employees’ right to report potential violations of the law without fear of retaliation. Refer to Chapter 7.III.B.III.d.
5. A new section titled “Consistent with the Public Interest” has been added. See Chapter 7.III.C.
6. A section addressing the Tax Treatment of Amounts Received in Settlement has been included. See Chapter 7.III.D.
7. A section on the Use of the Disposition Letter (89-Day Letter) has been added. Refer to Chapter 7.III.E.
8. Clauses concerning Training, Confidentiality, and Non-Waiver of Rights have been included as provisions under the HIOSH standard agreement. See Chapter 7.IV.D.
9. Throughout this chapter, all subheadings and references to private settlements have been renamed to “Employer-Employee Settlement Agreements.” See Chapters 7.IV.E and 7.V.
10. Bilateral agreements are no longer recognized by HIOSH. For a legal explanation, refer to Chapter 7.VI.

I. Chapter 8: OSHA’s Role in HIOSH Discrimination Cases

1. Chapter 8, previously titled “Information Disclosure,” is now designated as “OSHA’s Role in HIOSH Whistleblower Cases.” This chapter emphasizes the coordination between federal OSHA and HIOSH, incorporating content that was formerly included in Chapter 7.
2. A new section entitled “Federal Review Procedures” has been introduced in Section III. This section delineates the procedures established by federal OSHA for Complainants seeking review of the outcomes of HIOSH cases.

J. Chapter 9: Information Disclosure

1. This chapter delineates the policies and procedures governing the disclosure of information pertaining to whistleblower cases under the Uniformed Information Protection Act (UIPA), including applicable costs and fees associated with such disclosures.
2. The entire chapter has been streamlined to simplify the instructions internally for HIOSH whistleblower investigators.
3. The chapter refers all UIPA related issues to the Administrative and Technical Support Branch.
4. The Administrative and Technical Support Branch are trained and authorized to handle all requests, questions or concerns related to public and private disclosure(s).

VIII. Background

The Hawaii Occupational Safety and Health Law, Chapter 396, Hawaii Revised Statutes (HRS), (“Law”) is a state statute of general application designed to regulate employment conditions relating to occupational safety and health and to achieve safer and more healthful workplaces throughout the state. By terms of the Law, every employer is required to furnish each employee employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm and, further, to comply with occupational safety and health standards promulgated under the Law.

The Law provides, among other things, for the adoption of occupational safety and health standards, research and development activities, inspections and investigations of workplaces, record keeping requirements, the issuance of citations and notifications of proposed penalties, review proceedings before an independent quasi-judicial agency (the Hawaii Labor Relations Board), and judicial review.

Employees and representatives of employees are afforded a wide range of substantive and procedural rights under the Law. Moreover, effective implementation of the Law and achievement of its goals depend in large measure upon the active and orderly participation of employees, individually and through their representatives, at every level of safety and health activity. Such participation and employee rights are essential to the realization of the fundamental purposes of the Law.

HRS § 396-8(e), provides, in general, that no person shall discharge, suspend or in any manner discriminate (retaliate) against any employee because the employee has exercised their rights under the Law. The Administrator has overall responsibility for the investigation of retaliation complaints under Section 396-8(e). The Administrator has authority to order the employer to provide all appropriate relief to the Complainant in merit cases, dismiss non-meritorious complaints, approve acceptable withdrawals, and negotiate voluntary settlement of complaints.

IX. Definitions, Acronyms, and Terminology

• Administrator: The head of HIOSH. The Administrator has overall responsibility for the HIOSH program, including the enforcement and outreach activities related to HRS 396-8(e).3 The Administrator’s responsibilities related to whistleblower activities may only be delegated to the OH Branch Manager or to the ATS Branch Manager (see definitions for both below).
• Administrative Closure: A closure of a case after initial screening due to failure to meet threshold issues and/or failure to meet prima facie elements. This is not a finding, order, citation or notice to all affected parties. An administrative closure is the result of hearing the allegations from the aggrieved party and informing that party that the information provided do not warrant an investigation.
• Administrative Hearing: An informal review by the Administrator of a whistleblower complaint filed by a Complainant that was administratively closed and Complainant disagreed (did not provide consent) with the closure. The purpose of the review is to determine if such a complaint warrants an investigation by the Whistleblower Unit (see definitions).
• Administrative and Technical Support Branch (ATS): The ATS Branch is tasked with the performance of administrative duties in support of HIOSH. Such duties include, but are not limited to, the adoption of applicable standards, the execution of outreach initiatives, the oversight of training programs, and the facilitation of communication between HIOSH and federal OSHA. The ATS Branch will administer a program that is equivalent to the standards and regulations established by federal OSHA.
• Administrative and Technical Support Branch Manager (ATS Branch Manager): The head of the ATS Branch. The ATS Branch Manager works directly with the Administrator, the Enforcement Branch Managers (OS and OH), and the SI (as defined below) to ensure that effective criteria are met. The ATS Branch Manager serves as the primary point of contact for requests pertaining to HIOSH files in response to requests made under the UIPA (see definition).
• Adverse Action: An action initiated by the respondent that would dissuade a reasonable employee from engaging in a HIOSH protected activity. Other forms of adverse action include, but is not limited to, termination, loss in pay, demotion, discipline, job transfer, harassment.
• Appeal: Pursuant to HRS § 396-11, a Complainant or Respondent may appeal any order, citation, or notice issued by HIOSH. These specific appeals are forwarded to the Hawaii Labor Relations Board (HLRB), who will have jurisdiction over the case that is on appeal.
• Animus: A party’s intention or motivation to retaliate against an employee for reporting unsafe working conditions or exercising their rights under the Law. Specifically, animus involves showing that the employer had a discriminatory or hostile attitude towards the employee’s protected activity.
• But For: A legal standard used to establish causation. It often refers to whether an adverse action would not have happened “but for” (without) a specific protected activity or factor, thereby establishing a direct link between that activity and the outcome in question.
• Cat’s Paw Theory: The theory that an employer can be held liable for discrimination if a biased employee, who lacks ultimate decision-making authority, influences the decision-maker to take adverse action against another employee.
• Chilling Effect: The “chilling effect” refers to the hesitation or fear that employees might feel about reporting safety issues or illegal practices at work. This fear often arises when employees see others being punished or retaliated against for speaking up, even if it’s not directly against the Law. As a result, workers may feel discouraged from raising concerns or making complaints, even when they are legally protected from retaliation.
• Complaint: All employees and their representatives have the right to file a complaint with HIOSH. There are two types of complaints: 1) Safety and Health Complaints, which pertain to conditions in the workplace that violate HIOSH safety and health standards or pose a danger to employees, and 2) Whistleblower Complaints, which involve an employee suffering an adverse action as a result of engaging in protected activities covered by HIOSH. This manual will address whistleblower complaints exclusively, unless a safety or health complaint is specifically mentioned.
• Complaints About State Program Administration (CASPA): Complaints filed with OSHA Regional Offices about State Plan agencies regarding the operation of their programs. They are designed to alert State Plan agencies about program deficiencies. They are not designed to afford individual relief to section 11(c) Complainants.
• Complainant: Any person who believes that they have suffered an adverse action in violation of the HIOSH whistleblower statute and who has filed, with or without a representative, a whistleblower complaint with HIOSH. When this manual discusses investigatory communication and coordination, the term “Complainant” also includes the Complainant’s designated representative².
• Confidential Business Information (CBI): Internal, non-public information about a company. CBI refers to information that is considered sensitive and proprietary to a business, which, if disclosed, could potentially harm the competitive position of the business or reveal trade secrets.
• Compliance Safety and Health Officer (CSHO): This term refers to both Occupational Safety and Health Compliance Officers (OSHCOs) and Environmental Health Specialists (EHSs). See specific definitions for both below.
• Designated Representative: A person designated by the Complainant or the Respondent to represent the Complainant or the Respondent in HIOSH’s investigation of a whistleblower complaint. If a representative has been designated, HIOSH typically communicates with the Complainant or the Respondent through the designated representative, although HIOSH may occasionally communicate directly with a Complainant or Respondent if it believes that communication through the designated representative is impracticable or inadvisable. Determination Notice and Orders (DNO) are sent to both parties and their representatives.
• Deputy Attorney General (DAG): The legal representative on HIOSH matters representing the agency at trial or any legal proceeding. The DAG may be called upon to provide legal advice on all matters related to the enforcement of HRS § 396-8(e).
• Director: The Director of the Department of Labor & Industrial Relations (DLIR) is an appointee of the Governor responsible for overseeing all activities and operations of the DLIR.
• Department of Labor and Industrial Relations (DLIR): Executive Branch of the State of Hawaii tasked with labor related matters affecting all public and private employees and employers in the state.
• Disparate Treatment: Refers to the discriminatory practice of treating an employee differently than others because they engaged protected activities.
• Docket: To formally assign a whistleblower complaint a case number and enter it into the OSHA Whistleblower Investigation Tracking System (OIS-Whistleblower) database. The initial complaint has passed screening and intake procedures and will be investigated by the Whistleblower Unit (see definition). Notification letters will be issued to the affected parties.
• Determination Notice and Order (DNO) or Order: A formal notification issued by HIOSH after investigating a whistleblower complaint under HRS § 396-8(e). This notice informs the parties involved of the findings resulting from an investigation, outlines whether the complaint is substantiated or unsubstantiated, provides the legal rationale for the determination, and may include any orders or actions necessary to address the findings. Additionally, the notice will inform the parties of their right to appeal the determination.
• Employer-Employee Agreements: Settlement agreements between Complainant and Respondent, subject to HIOSH’s approval. See Chapter 7.
• Enforcement Case: Refers to an inspection or investigation conducted by a CSHO or EHS (see definition below) or such inspections or investigations being conducted by another agency, as distinguished from a whistleblower case. See below for inspection or investigation definitions.
• Environmental Health Specialist (EHS): A compliance officer, specifically within the Occupational Health Branch, is assigned to carry out enforcement activities for HIOSH. EHSs are responsible for investigating safety and health complaints, as well as accidents, and primarily conducts inspections. EHSs work directly with investigators (see definition below) when there are allegations that employees have experienced retaliation after reporting concerns during employee interviews.
• Federal Review: Complainants who have concerns about HIOSH’s investigation of their dually filed section 11(c) whistleblower complaints may request a review by federal OSHA. This review provides an opportunity for reconsideration of the state’s dismissal determination and, in merit cases, allows the Secretary to file suit in Federal District Court. See Chapter 8.
• Hawaii Labor Relations Board (HLRB): An independent quasi-judicial entity tasked with hearing the appeals filed under HRS § 396-11. This adjudicative body may hear the case de novo (from the beginning) and preserves the parties due process rights. A finding of fact and conclusion of law may be issued on the appeal by the HLRB.
• Hawaii Occupational Safety and Health (HIOSH): A division of the Department of Labor and Industrial Relations (DLIR). It is comprised of five branches: Administrative Technical Support, Occupational Safety, Occupational Health, Consultation and Training, and Boiler and Elevator.
• Inspection: Enforcement activities performed by Occupational Safety and Health branches. Inspections of worksites within the State of Hawaii designed to ensure every working man and woman are provided insofar as possible, a safe and healthful workplace. The results of inspections may lead to the filing of whistleblower claims by employees.
• Intake Interview: An initial interview with a Complainant to determine what their whistleblower complaint allegations are. These intake interviews (screening) are conducted by the Whistleblower Unit.
• Investigator: A HIOSH employee assigned to investigate and prepare a ROI (see below) in a HIOSH whistleblower case.
• Lack of Cooperation (LOC): A Complainant’s or respondent’s failure to provide information necessary for a whistleblower investigation. This includes the designated representative of the Complainant or respondent.
• Memorandum of Agreement (MOA) or Memorandum of Understanding (MOU): An agreement between two agencies regarding the coordination of related activities.
• Nexus: A connection or link between the protected activity and the adverse action taken against an employee. See Chapter 2.
• Non-Public Disclosure: A disclosure of information from the investigative case file made to Complainant or Respondent during the investigation in order to resolve the complaint.
• Occupational Health Branch (OH Branch): An enforcement branch of HIOSH responsible for implementing and enforcing workplace safety and health regulations and standards within the State of Hawaii. While this branch can conduct both safety and health inspections, its focus are on health-related hazards. The Whistleblower Unit falls under the auspices of the OH Branch.
• Occupational Health Branch Manager (OH Branch Manager): The head of the OH Branch, who oversees the Whistleblower Unit and acts as the designee for the HIOSH Administrator when carrying out duties typically performed by the Administrator. Additionally, they collaborate with the ATS Branch Manager on training opportunities and outreach services related to the whistleblower section.
• Occupational Safety and Health Compliance Officers (OSHCOs): A compliance officer, specifically within the Occupational Safety Branch, is assigned to carry out enforcement activities for HIOSH. OSHCOs are responsible for investigating safety and health complaints, as well as accidents, and primarily conducts inspections. OSHCOs work directly with whistleblower investigators (see definition below) when there are allegations that employees have experienced retaliation after reporting concerns during employee interviews.
• Occupational Safety Branch (OS Branch): An enforcement branch of HIOSH responsible for implementing and enforcing workplace safety and health regulations and standards within the State of Hawaii. While this branch can conduct both safety and health inspections, its focus is on safety-related hazards. The Whistleblower Unit falls under the auspices of the OH Branch.
• Occupational Safety Branch Manager (OS Branch Manager): The head of the OS Branch, who supervises CSHOs performing enforcement activities. The OS Branch Manager is responsible for referring complaints arising from these enforcement activities to the SI. Additionally, the OS Branch Manager collaborates with the ATS Branch Manager to develop and implement training opportunities and outreach services related to the whistleblower section.
• Office of Information Practices (OIP): The state agency responsible for overseeing the implementation of the Hawaii Uniform Practices Act (UIPA). See below for definition.
• OIS-Whistleblower: The OSHA IT Support System – Whistleblower, or subsequent whistleblower case management system. OIS – Whistleblower is the case management system used to process complaint data for OSHA’s Whistleblower Protection Program, formerly known as WebIMIS or OITSS.
• Personally Identifiable Information (PII): Information about an individual which may identify the individual, such as a Social Security number or a medical record. See Chapter 9.
• Pretext: A false or misleading reason given in justification of an action or decision, which is not the actual reason behind it.
• Protected Activity: Refers to actions taken by employees concerning safety and health that are legally protected from retaliation by employers. This includes, but is not limited to, reporting violations, participating in HIOSH inspections and investigations, and refusing to engage in unsafe work practices. For a comprehensive list of covered protected activities, refer to HRS § 396-8(e) and HAR §12-57-1.
• Rebuttal Interview: Interview with Complainant to go over the Respondent’s position and allow the Complainant the opportunity to rebut Respondent’s claims.
• Report of Investigation (ROI): The report prepared by an Investigator in an HIOSH whistleblower case, setting forth the facts, analyzing the evidence, and making a recommendation.
• Respondent: Any employer or individual company official against whom a whistleblower complaint has been filed. When this manual discusses investigatory communication and coordination, the term “Respondent” also includes Respondent’s designated representative.
• Secretary of Labor (Secretary): The Secretary is the head of federal Occupational Safety and Health Administration (OSHA), responsible for enforcing workplace safety and health regulations, overseeing compliance with federal standards, and promoting safe working conditions across various industries under federal jurisdiction.
• Settlement Agreement: A legal contract or formal resolution that resolves a whistleblower claim between the Respondent and the Complainant.
• Supervisory Investigator (SI): A senior official within the Whistleblower Unit responsible for overseeing and managing whistleblower complaints and investigations. The SI is the immediate supervisor of the investigators.
• Supervisor: The Administrator, or the OH Branch Manager, ATS Branch Manager, or SI, to whom the Administrator has delegated any of the Administrator’s responsibilities, such as the responsibility to oversee HIOSH whistleblower investigations, sign subpoenas (as applicable), issue findings and orders, recommend cases for litigation by DAG, and approve settlements.
• Temporal Proximity: The timing between an employee’s protected activity and an adverse action taken against the employee.
• Uniformed Information Practices Act (UIPA): Hawaii’s equivalent to the federal Freedom of Information Act (FOIA). The UIPA governs the public’s access to government records. It promotes transparency by allowing individuals to request records from state and county agencies, ensuring citizens can access information while balancing the need for confidentiality in certain circumstances.
• Whistleblower Unit: The section responsible for investigating whistleblower claims that fall under HRS § 396-8(e). This unit is supervised by the SI and operates under the auspices of the OH Branch.
• Whistleblower Complaint: A complaint filed with HIOSH alleging unlawful retaliation for engaging in protected activity. For example, a roofing employee complains to HIOSH that she was suspended for reporting a lack of fall protection to HIOSH. The whistleblower complaint is the complaint to HIOSH regarding the suspension for reporting a safety violation, i.e., the unlawful retaliation. The whistleblower complaint is not the report to HIOSH regarding the lack of fall protection.
• Whistleblower Investigation: An investigation conducted after a case has been docketed and entered into the OIS -Whistleblower system. The authority of whistleblower investigations conducted by HIOSH are found in the provisions of HRS § 396-8(e).
• Whistleblower Protection Program (WPP): HIOSH’s Whistleblower Protection Program as a whole.

X. The Hawaii Occupational Safety and Health Discrimination Law, Section 396-8(e), Hawaii Revised Statutes (HRS)

HIOSH administers only one discrimination or whistleblower law. HRS § 396-8(e) is substantially similar to OSHA’s whistleblower statute under Section 11(c). The rules governing the administration of HRS § 396-8(e) are contained in Hawaii Administrative Rules (HAR) §12-57.

A. Coverage

1. Any private or public-sector employee employed within the State of Hawaii with the exception of employees covered by OSHA, e.g., employees of the U.S. Postal Service (USPS), and those within the jurisdiction of other federal agencies (see Chapter 17 of the HIOSH FOM); and federal employees who are covered under Executive Order 12196 and 29 CFR 1960.46.
2. Private sector employees are also covered by OSHA and may choose to dual file with OSHA to afford the greatest opportunity for satisfactory resolution of their complaint.

B. Protected Activity

Activities protected by HRS § 396-8(e) include, but are not limited to, the following:

1. Occupational safety or health complaints filed orally or in writing with OSHA, HIOSH, the National Institute of Occupational Safety and Health (NIOSH), or any state or local government agency that addresses occupational safety and health hazards confronting employees. This encompasses agencies that focus on public safety or health, such as fire departments, health departments, or police departments. The timing of the complaint filing in relation to the alleged retaliation and the employer’s knowledge are often central considerations in investigations involving this protected activity. HRS § 396-8(e) mandates that HIOSH notify Complainants when the division determines not to pursue compliance action, specifying the reasons for such a decision and outlining the procedures for an informal review of that decision.
2. Filing oral or written complaints about occupational safety or health with the employee’s supervisor or other management personnel.
3. Instituting or causing to be instituted any proceeding under or related to HIOSH Law or the OSH Act. Examples of such proceedings include, but are not limited to, workplace inspections, review sought by a §396-8(d) Complainant of a determination not to take compliance action, employee contests of abatement dates, employee initiation for modification or revocation of a variance, employee judicial challenge to an OSHA action, and employee appeal of an HLRB decision and order. Filing an occupational safety and health grievance under a collective bargaining agreement would also fall under this category. Communicating with the media about an unsafe or unhealthful workplace condition is also included in this category. Donovan v. R.D. Andersen Construction Company, Inc., 552 F.Supp. 249 (D. Kansas, 1982).
4. Providing testimony or getting ready to provide testimony relating to occupational safety or health in the course of a judicial, quasi-judicial, or administrative proceeding, including, but not limited to, depositions conducted during inspections and investigations.
5. Exercising any right afforded by HIOSH Law. The following is not an exhaustive list. The broad category includes communicating orally or in writing with the employee’s supervisor or other management personnel about occupational safety and health matters. This encompasses asking questions, expressing concerns, reporting work-related injuries or illnesses, requesting safety data sheets (SDS), and requesting access to records or copies of the HIOSH Law/OSH Act, HIOSH/OSHA regulations, HIOSH/OSHA standards, or compliance plans (such as the hazard communication program or the bloodborne pathogens exposure control plan), as permitted by applicable standards and regulations. This right is grounded in the employer’s obligation to comply with HIOSH/OSHA standards (HRS § 396-6 and administrative rules, Title 12, Subtitle 8), and to maintain a workplace free from recognized hazards that could cause death or serious physical harm, as well as the employee’s obligation to adhere to HIOSH/OSHA standards and regulations. Such communication is essential to the implementation of these provisions. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 12-13 (1980) (establishing the right to refuse imminently dangerous work as integral to the general duty clause). This communication further supports the objectives outlined in the Law to ensure safe and healthful working conditions, which include encouraging both employers and employees to enhance existing programs for safety and health, recognizing their respective but interdependent responsibilities and rights in achieving safe working environments, and promoting joint labor-management efforts to reduce workplace injuries and diseases. See 29 U.S.C., §651(b)(1), (2), and (13).
   
   Similarly, an employee has a right to communicate orally or in writing about occupational safety or health matters with union officials or co-workers. This right is rooted in the obligations of both the employer and employee, as articulated in 29 U.S.C. § 651(b)(1), (2), and (13) referenced in the preceding paragraph. Such communication is essential to the implementation of these provisions. See Memorandum of Understanding between OSHA and NLRB, 40 FR 20083 (June 16, 1975). It is important to note that Section 11(c) rights may overlap with rights under Section 7 of the National Labor Relations Act, which protects the right to “…engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Cases involving the exercise of such rights in relation to occupational safety or health should be primarily addressed as Section 11(c) cases.
   
   This category (exercising any right afforded by the Law/Act) also encompasses the refusal to perform a task that the employee reasonably believes poses a real and imminent danger of death or serious injury. The HIOSH administrative rule governing work refusals is set forth in HAR § 12-57-7(b). An employee has the right to refuse to perform an assigned task if the employee:
   1. Has a reasonable apprehension of death or serious injury, and
   2. Refuses in good faith, and
   3. Has no reasonable alternative, and
   4. Has insufficient time to eliminate the condition through regular statutory enforcement channels, i.e., contacting HIOSH, and
   5. Where possible, sought from the employee, and was unable to obtain, a correction of the dangerous condition.

An employee also has the right to comply with, and to obtain the benefits of, HIOSH/OSHA standards, rules, regulations, and orders applicable to their own actions or conduct. This right is derived from HRS § 396-6, which requires employers to comply with HIOSH/OSHA standards and from § 396-8(d), which provides: “(a) Employee compliance. Each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued under this chapter which are applicable to the employee’s own actions and conduct.”

Thus, for example, an employee has the right to wear personal protective equipment (PPE) required by a HIOSH standard, to refuse to purchase PPE (except as provided by the standards), and to engage in a work practice required by a standard. However, this right does not include a right to refuse to work. See HAR §12-57-7(b)(1). To be a protected activity, a refusal to work must meet the criteria set forth in HAR §12-51-7(b)(2), as explained above.

An employee has the right to participate in an HIOSH/OSHA inspection (see HRS § 396-8(c)). The employee has the right to communicate with a HIOSH compliance officer, both orally or in writing (HAR §12-51-10). In accordance with HAR §12-518, an authorized representative of employees has the right to accompany the HIOSH compliance officer during the walkaround inspection. The employee must not suffer retaliation because of the exercise of this right. Furthermore, an employee representative has the right to participate in an informal conference, subject to HIOSH’s discretion, as specified in HAR §12-51-21.

An employee has a right to request information from HIOSH. Although not explicitly stated in HIOSH Law or rules, it is reasonable to conclude that access to information is a right afforded all citizens of the state and for employees, a necessary part of participation in occupational safety and health matters.

XI. Functional Responsibilities

The following describes the functions and responsibilities of the various positions within HIOSH’s Whistleblower Unit. These descriptions are intended neither to be all-inclusive nor to describe actual position description and/or job functions. Rather, the following descriptions are intended to provide a general overview of HIOSH and DLIR functions that may be different depending on the needs or staffing of the division or unit (section).

A. Administrator

The Administrator is responsible for overseeing the Whistleblower Protection Program and for ensuring that HIOSH’s whistleblower provisions are appropriately implemented. This includes overseeing all whistleblower investigations and outreach activities, as well as ensuring that all HIOSH personnel, especially CSHOs, have a basic understanding of the rights afforded to employees under the discrimination (whistleblower) section of the Law and are trained to handle discrimination (whistleblower) complaints using intake forms. The Administrator is also authorized to issue determinations and approve settlement of complaints filed under the Law.

B. Occupational Health (OH) Branch Manager

The OH Branch Manager is responsible for the overall implementation of approved policies and procedures for all whistleblower investigations, ensuring quality investigations and customer service, collaboration with the DAG, communication with federal OSHA, and coordination of all outreach activities. Additionally, the OH Branch Manager is responsible for ensuring the tracking of investigations and administrative closures.

C. Supervisory Investigatory (SI)

The SI is responsible for implementing and supervising the day-to-day whistleblower protection operations of the investigators and other personnel in the Whistleblower Unit. The SI is responsible for ensuring that all complaints are received and processed in accordance with HIOSH policy and procedures and that investigators receive proper guidance in order to adequately investigate retaliation complaints. Additionally, the SI organizes training (formal and field) for investigators, helps develop outreach programs and activities, and keeps field staff informed about significant legal developments. The role also includes maintaining and presenting statistical database on investigations and contributing to the development of legislation related to discrimination matters. The SI may conduct investigations of whistleblower cases as needed.

D. Investigator

Under the direct guidance and ongoing supervision of the SI, the investigator conducts investigations, which include responsibilities such as:

1. Conducting complaint intake and documenting whether the allegations do or do not warrant field investigation.
2. Reviewing investigative and/or enforcement case files for background information concerning any other proceedings which relate to a specific complaint.
3. Interviewing Complainants and witnesses, obtaining statements, and obtaining supporting documentary evidence.
4. Following up on leads resulting from interviews and statements.
5. Interviewing and obtaining statements from respondents’ officials, reviewing pertinent records, and obtaining relevant supporting documentary evidence.
6. Applying knowledge of the elements of a retaliation case when evaluating the gathered evidence, analyzing the evidence, drafting an investigative report, and recommending appropriate action to the supervisor.
7. Composing draft DNO for supervisory review.
8. Negotiating with the parties to obtain a written settlement agreement that provides prompt resolution and satisfactory remedies to Complainant where appropriate.
9. Assisting and acting on behalf of the Administrator or SI in whistleblower matters involving other agencies or federal OSHA offices as assigned, and interacting with the general public to perform outreach activities as assigned.
10. Assisting in the litigation process, including preparation for trials and hearings and testifying in proceedings.
11. Organizing and maintaining whistleblower investigation case files.

E. HIOSH Whistleblower Protection Program (WPP)

HIOSH’s WPP is composed of the Administrator, the ATS Branch Manager, the OH Branch Manager, and the Whistleblower Unit, who together develops policies and procedures, provides assistance to the field on both the program and the statute it enforces, promulgates procedural and interpretive rules to implement the HIOSH Law, performs audits of investigations (conducted mainly by the ATS Branch), maintains statistical information on the state-wide program, and performs outreach.

F. Compliance Safety and Health Officer (CSHO)

Each CSHO maintains a basic understanding of the whistleblower protection provisions administered by HIOSH, in order to advise employers and employees of their responsibilities and rights under the Law. Each CSHO must accurately record information about potential whistleblower complaints on an HIOSH-87 form or the appropriate intake worksheet and immediately forward it to the SI. In every instance, the date of the initial contact must be recorded. Additionally, as noted in the HIOSH Field Operations Manual (FOM), CSHOs should instruct employers and employees about HRS § 396-8(e) rights during opening and closing conferences.

G. Deputy Attorney General (DAG)

The DAG provides legal assistance to HIOSH. DAG reviews HIOSH whistleblower cases submitted by the SI and/or the OH Branch Manager to assess their legal merits. The DAG represents the Director before the HLRB and in any subsequent court proceedings under the Law. Additionally, the DAG may be called upon to review private settlement agreements to ensure they align with HIOSH’s objectives.

XII. Languages

HIOSH is encouraged to communicate with Complainants, Respondents, and witnesses in the language in which they understand, both orally or in writing. Online translators may be used. If any communication, including DNOs, is written in a language other than English, an English-language version must also be written. Oral and written communication in any language must be grammatically correct. HIOSH may refer to DLIR’s Language Access Plan, which outlines the provision of language services for individuals with limited English proficiency to ensure equity and inclusion.

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1. Common ancillary statutes that interface with the enforcement of HRS § 396 include HRS § 386, which pertains to Workers’ Compensation law and grants sole authority to administer workers’ compensation claims; and HRS § 378, which addresses unlawful termination in relation to dismissals solely for filing a workers’ compensation claim. Additionally, HRS § 92F, known as the Uniform Information Practices Act, governs public access to information and is analogous to the Freedom of Information Act. ↩︎
2. Complainant also refers to any individual who files a notice of an alleged safety or health hazard for which HIOSH has jurisdiction or a violation of the Law. ↩︎