Chapter 2 – Legal Concepts

I. Scope

This Chapter explains the legal principles applicable to investigations under the whistleblower protection law that HIOSH enforces, including:

• the requirement to determine whether there is reasonable cause to believe that unlawful retaliation occurred.
• the prima facie elements of a violation of the whistleblower protection law.
• the standards of causation relevant to HRS § 396-8(e).
• the types of evidence that may be relevant to determine causation and to detect pretext (a.k.a. “pretext testing”) in whistleblower retaliation cases.
• the consideration and integration of recent Hawaii Labor Relations Board (HLRB) decisions; and
• other applicable legal principles.

II. Introduction

The HIOSH-enforced whistleblower protection law prohibits a covered entity or person from retaliating against an employee for the employee’s engaging in activity protected by HRS § 396-8(e). In general terms, a whistleblower investigation focuses on determining whether there is reasonable cause to believe that retaliation in violation of HRS § 396-8(e) has occurred by analyzing whether the facts of the case meet the required elements of a violation and the required standard for causation (i.e., but-for, contributing factor, or inference from circumstantial evidence).¹

III. Gatekeeping

Upon receipt, an incoming whistleblower complaint is screened to determine whether the prima facie elements of unlawful retaliation (a “prima facie allegation”) and other applicable requirements are met, such as coverage and timeliness of the complaint. In other words, based on the complaint and – as appropriate – the interview(s) of Complainant, are there allegations relevant to each element of a retaliation claim that, if true, would raise the inference that Complainant had suffered retaliation in violation of HRS § 396-8(e). The elements of a retaliation claim are described below and the procedures for screening whistleblower complaints are described in detail in Chapter 3.

IV. Reasonable Cause

If the case proceeds beyond the screening phase, HIOSH investigates the case by gathering evidence to determine whether there is reasonable cause to believe that retaliation in violation of HRS § 396-8(e) occurred. Reasonable cause means that the evidence gathered in the investigation would lead HIOSH to believe that unlawful retaliation occurred – i.e. that there could be success in proving a violation at an HLRB hearing based on the elements described in more detail below. HIOSH continues to use the standards delineated in the Hawaii Administrative Rules (HAR) §12-57-3(a) and (b) and used by the HLRB.²

A reasonable cause determination requires evidence supporting each element of a violation and consideration of the evidence provided by both Complainant and Respondent but does not generally require as much evidence as would be required at trial. Although HIOSH will need to make some credibility determinations to evaluate whether it is reasonable to believe that unlawful retaliation occurred, HIOSH does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that unlawful retaliation occurred.³ Because HIOSH makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies at a hearing.

If, based on analysis of the evidence gathered in the investigation, there is reasonable cause to believe that unlawful retaliation occurred, HIOSH will issue merit findings under HRS § 396-8(e) or consult with DAG to ensure that the investigation captures as much relevant information as possible so that the DAG can evaluate whether the case is appropriate for litigation. If the investigation does not establish that there is reasonable cause to believe that a violation occurred, the case should be dismissed.

Procedures for conducting the investigation, requirements for issuing merit and non-merit (dismissal) findings in whistleblower cases, the requirement to consult with DAG in cases that HIOSH believes are potentially meritorious, and the standards for determining appropriate remedies in potentially meritorious whistleblower cases are discussed in Chapters 4 through 6.

V. Elements of a Violation

An investigation focuses on the elements of a violation and the employer’s defenses. The four basic elements of a whistleblower claim are that: (1) Complainant engaged in protected activity; (2) Respondent knew or suspected that Complainant engaged in the protected activity; (3) Complainant suffered an adverse action; and (4) there was a causal connection between the protected activity and the adverse action (a.k.a. nexus).

A. Protected Activity

The evidence must establish that Complainant engaged in activity protected under HRS § 396-8(e). Protected activity generally falls into a few broad categories. The following are general descriptions of protected activities. Specific information on the protected activities under a specific statute can be found in the desk aid for the specific statute. If there is any inconsistency between this general information and the information in the desk aid, follow the more specific information in the desk aid.

1. Reporting potential violations or hazards to management – Reporting a complaint to a supervisor or someone with the authority to take corrective action.
2. Reporting a work-related injury or illness – Reporting a work-related injury or illness to management personnel. In some instances, these injury-reporting cases may be covered through HIOSH enforcement under 29 CFR 1904.35(b)(1)(iv). For additional information, refer to the 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, and related memoranda. See also Chapter 2.VII, Policies and Practices Discouraging Injury Reporting for related information. Cases that interface with worker’s compensation shall be screened and discussed with the Supervisory Investigator (SI) for application. Worker’s compensation is a form of insurance or legal compensation provided to employees who suffer work-related injuries or illness. It is designed to provide financial and medical benefits to workers who are injured on the job or who develop work-related health conditions. In general, a case that has already been filed with the Wage Standards Division (WSD), a division within DLIR that handles complaints related to wrongful termination against an employee for reporting a workers’ compensation claim, will normally remain with WSD, provided the division has the authority to grant the relief sought by the Complainant. Cases involving the employer delaying or failing to file an appropriate injury claim on behalf of the Complainant must be screened for all the pertinent facts. Complaints alleging reprisal solely for filing a workers’ compensation claim shall be referred to WSD. HIOSH may address such claims if unresolved issues persist between the agencies. A possible deferral may be considered if it is determined that WSD has the authority to provide necessary relief.
3. Providing information to a government agency – Providing information to a government entity such as HIOSH, OSHA, EPA, DOE, NIOSH or any state or county government agency that addresses hazards affecting employees, is covered under this provision. This includes agencies involved with public safety or health, such as the health department, police department, or fire department. It also includes communications with the employer, including supervisors or management representatives, a union, a legislative body or the executive head of a government, such as a mayor, governor, or president.
4. Filing a complaint – Filing a complaint or instituting a proceeding provided for by law, for example, a formal complaint to HIOSH under HAR §12-51-7.
5. Instituting or causing to be instituted any proceeding under or related to HRS § 396-8(e) – Examples include filing under a collective bargaining agreement a grievance related to an occupational safety and health issue (or other issue covered by HIOSH-enforced whistleblower protection law), and communicating with the media about an unsafe or unhealthful workplace condition⁴. Communicating such complaints through social media may also be considered protected activity, in which case, HIOSH should consult with DAG.
6. Assisting, participating, or testifying in proceedings – Testifying in proceedings such as hearings before the HLRB and the HIOSH Administrator Review on administratively closed complaints, or legislative hearings.⁵ Assisting or participating in inspections or investigations by agencies such as HIOSH or OSHA.
7. Work Refusal — HRS § 396-8(e), specifically protects employees from retaliation for refusing to work under specified conditions. Generally, the work refusal must meet several elements to be valid (i.e., protected). If the work refusal is determined to be invalid, the investigator must still investigate any other protected activities alleged in the complaint. See memorandum Clarification of the Work Refusal Standard under 29 CFR 1977.12(b)(2), January 11, 2016, and the relevant desk aid for statute specific considerations. If the protected work refusal includes ambiguous action by Complainant that Respondent interpreted as a voluntary resignation, without having first sought clarification from the employee, Complainant’s subsequent lack of employment may constitute a discharge. If it is ambiguous whether Complainant quit or was discharged, consultation with DAG may be appropriate.
   
   Generally, Complainant only needs a good faith, reasonable belief that the conduct about which Complainant initially complained violated or would have violated the substantive (i.e. non-whistleblower) provisions of HRS § 396-8(e). As long as Complainant had reasonable belief that there was a violation or hazard, this element has been satisfied.
   
   HIOSH’s refusal to work provision at HAR §12-57-7(b) provides an employee the right to refuse an assigned task if the employee:

• Has a reasonable apprehension of death or serious injury,
• Refuses in good faith,
• Has no reasonable alternative,
• Has insufficient time to eliminate the condition through regular statutory enforcement channels, i.e. contacting HIOSH, and
• The employee, where possible, sought from his or her employer, and was unable to obtain, a correction of the dangerous condition.

The investigator should also review Complainant’s complaint and interview statement for protected activity beyond the particular protected activity identified by Complainant. For example, while Complainant may note in the complaint only the protected activity of reporting a workplace injury, Complainant might also mention in passing during the screening interview that they had complained to the employer about the unsafe condition or had refused to work before the injury occurred. That hazard complaint/work refusal should be included in the list of Complainant’s protected activities.

B. Employer Knowledge

The investigation must show that a person involved in or influencing the decision to take the adverse action was aware or at least suspected that Complainant or someone closely associated with Complainant, such as a spouse or coworker, engaged in protected activity8. For example, one of Respondent’s managers need not know that Complainant contacted a regulatory agency if their previous internal complaints would cause Respondent to suspect Complainant initiated a regulatory action.

If Respondent does not have actual knowledge but could reasonably deduce that Complainant engaged in protected activity, it is called inferred knowledge. Examples of evidence that could support inferred knowledge include:

• A HIOSH complaint is about the only lathe in a plant, and Complainant is the only lathe operator.
• A complaint is about unguarded machinery and Complainant was recently injured on an unguarded machine.
• A union grievance is filed over a lack of fall protection and Complainant had recently insisted that his foreman provide him with a safety harness.
• Under the small plant doctrine, in a small company or small work group where everyone knows each other, knowledge can generally be attributed to the employer.

If Respondent’s decision-maker takes action based on the recommendation of a lower-level supervisor who knew of and was motivated by the protected activity to recommend action against Complainant, employer knowledge and motive are imputed to the decision-maker. This concept is known as the cat’s paw theory.

The HLRB does not specifically require employer knowledge as an element to establish a prima facie case of discrimination. Instead, a Complainant can establish causation by presenting circumstantial evidence that shows the decisionmaker was aware of the Complainant’s engagement in protected activity and that there is a close temporal proximity between the protected activity and the adverse action taken.

C. Adverse Action

An adverse action is any action that could dissuade a reasonable employee from engaging in protected activity. Common examples include firing, demoting, and disciplining the employee. The evidence must demonstrate that Complainant suffered some form of adverse action. An adverse action typically must relate to employment. Under the statutory provisions of HRS § 396-8(e), for retaliation to be actionable, the adverse action must affect the employee’s employment in a way that alters the terms, conditions, or privileges of their job. This ensures that the retaliation is not just a minor inconvenience but something that significantly impacts the employee’s work life.

It may not always be clear whether Complainant suffered an adverse action. In order to establish an adverse action, the evidence must show that the action at issue might have dissuaded a reasonable employee from engaging in protected activity. The investigator can interview coworkers to determine whether the action taken by the employer would likely have dissuaded other employees from engaging in protected activity.

Some examples of adverse action are:

1. Discharge – Discharges include not only straightforward firings, but also situations in which the words or conduct of a supervisor would lead a reasonable employee to believe that they had been terminated (e.g., a supervisor’s demand that the employee clear out their desk or return company property). Also, particularly after a protected refusal to work, an employer’s interpretation of an employee’s ambiguous action as a voluntary resignation, without having first sought clarification from the employee, may nonetheless constitute a discharge. If it is ambiguous whether the action was a quit or a discharge, consultation with DAG may be appropriate.
2. Demotion
3. Suspension
4. Reprimand or other discipline
5. Harassment – Unwelcome conduct that can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. It also includes isolating, ostracizing, or mocking conduct. This type of conduct generally becomes unlawful when the employer participates in the harassment or knowingly or recklessly allows the harassment to occur and the harassment is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive such that it would dissuade a reasonable person from engaging in protected activity.
6. Hostile work environment – Separate adverse actions that occur over a period of time may together constitute a hostile work environment, even though each act, taken alone, may not constitute a materially adverse action. A hostile work environment typically involves ongoing severe and pervasive conduct, which, as a whole, creates a work environment that would be intimidating, hostile, or offensive to a reasonable person. A complaint need only be filed within the statutory timeframe of any act that is part of the hostile work environment, which may be ongoing.
7. Lay-off
8. Failure to hire
9. Failure to promote
10. Blacklisting – Notifying other potential employers that an applicant should not be hired or making derogatory comments about Complainant to potential employers to discourage them from hiring Complainant.
11. Failure to recall
12. Transfer to different job – Placing an employee in an objectively less desirable assignment following protected activity may be an adverse action and should be investigated. Indications that the transfer may constitute an adverse action include circumstances in which the transfer results in a reduction in pay, a lengthier commute, less interesting work, a harsher physical environment, and reduced opportunities for promotion and training. In such cases, it is important to gather evidence indicating what positions Respondent(s) had available at the time of the transfer and whether any of Complainant’s similarly situated coworkers were transferred. Although involuntary transfers are not unique to temporary employees, employees of staffing firms and other temporary employees may be required to frequently change assignments. See Memorandum Clarification of Guidance for Section 11(c) Cases Involving Temporary Workers issued May 11, 2016, for further information.
13. Change in duties or responsibilities
14. Denial of overtime
15. Reduction in pay or hours
16. Denial of benefits
17. Making a threat
18. Intimidation
19. Construction discharge – The employee quitting after the employer has deliberately, in response to protected activity, created working conditions that were so difficult or unpleasant that a reasonable person in similar circumstances would have felt compelled to resign.
20. Application of workplace policies, such as incentive programs, that may discourage protected activity, for example: in certain circumstances incentive programs that discourage injury reporting.
21. Reporting or threatening to report an employee to the police or immigration authorities.

D. Nexus

There must be reasonable cause to believe that the protected activity was a substantial reason for the adverse action at least in part (i.e., that a nexus exists). As explained below, the protected activity must have been a “but-for-cause” in the decision to take adverse action.

Regardless of which causation standard applies, nexus can be demonstrated by direct or circumstantial evidence. Direct evidence is evidence that directly proves the fact without any need for inference or presumption. For example, if the manager who fired the employee wrote in the termination letter that the employee was fired for engaging in the protected activity, there would be direct evidence of nexus.

Circumstantial evidence is indirect evidence of the circumstances surrounding the adverse action that allow the investigator to infer that protected activity played a role in the decision to take the adverse action. Examples of circumstantial evidence that may support nexus include, but are not limited to:

• Temporal Proximity – A short time between the protected activity (or when the employer became aware of the protected activity or the agency action related to the protected activity, such as the issuance of a HIOSH citation) and the decision to take adverse action may support a conclusion of nexus, especially where there is no intervening event that would independently justify the adverse action;
• Animus – Evidence of animus toward the protected activity – evidence of antagonism or hostility towards the protected activity, such as manager statements belittling the protected activity or a change in a manager’s attitude towards Complainant following the protected activity, can be important circumstantial evidence of nexus;
• Disparate Treatment — Evidence of inconsistent application of an employer’s policies or rules against the employee as compared to similarly situated employees who did not engage in protected activity or in comparison to how Complainant was treated prior to engaging in protected activity can support a finding of nexus;
• Pretext – Shifting explanations for the employer’s actions, disparate treatment of the employee as described above, evidence that Complainant did not engage in the misconduct alleged as the basis for the adverse action, and employer explanations that seem false or inconsistent with the factual circumstances surrounding the adverse action may provide circumstantial evidence that the employer’s explanation for taking adverse action against the employee is pretext and that the employer’s true motive for taking the adverse action was to retaliate against the employee for the protected activity.

Whether these types of circumstantial evidence support a finding of nexus in a particular case will depend on HIOSH’s evaluation of the facts and the strength of the evidence supporting both the employer and the employee through “pretext testing” described below (See Chapter 2.VI, Testing Respondent’s Defense).

VI. Causation Standards

The causation standard is the type of causal link (a.k.a. nexus), required by statute, between the protected activity and the adverse action. That causal link will be either: (1) that the adverse action would not have occurred but for the protected activity; (2) that the protected activity was a contributing factor in the adverse action;⁶ or (3) that the protected activity was a motivating factor⁷ in the adverse action.

A. Cases under HRS 396-8(e)

HRS § 396-8(e), simply uses the word “because” to express the causation element. The Supreme Court has found that similar language requires the plaintiff to show that the employer would not have taken the adverse action but for the protected activity. University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013). Thus, causation exists in a HRS 396-8(e) case only if the evidence shows that Respondent would not have taken the adverse action but for the protected activity. A good explanation of but-for causation is found in Bostock v. Clay County, Georgia, U.S. , 140 S. Ct. 1731 (2020). As the Supreme Court ruled, but-for causation analysis directs the courts to change one thing at a time and see if the outcome changes; if it does, there is but-for causation. This test does not require that the illegal motive (in whistleblower cases, the protected activity) be the sole reason for the adverse action. It also does not require that illegal motive (protected activity) be the primary reason for the adverse action. Id. at 1739. The but-for causation test is more stringent than the contributing factor or the motivating factor tests. Even so, it does not require a showing that the protected activity was the sole reason for the adverse action, only that it was independently sufficient. Id. See 29 CFR § 1977.6(b) (but-for causation test for section 11(c))

B. HLRB, Burden Shifting, Contributing Factor, and Preponderance of Evidence

The HLRB has applied the contributing factor burden of proof when determining the burden-shifting responsibilities of the respondent. A contributing factor is “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.” See Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks omitted). Thus, the protected activity, alone or in connection with other factors, must have affected in some way the outcome of the employer’s decision.

Even if an employer or “person” has permissive non-retaliatory or non-discriminatory reasons for their actions, HLRB requires an analysis under HRS § 396-8(e) to determine whether the protected activity was a contributing factor to the employer’s decision to take the adverse employment action. See Stone v. Hawaii Air Ambulance (Hawaii Life Flight) v. DLIR, Case No. OSH 2011-10, Decision No. 28 at *27 (June 18, 2015) (Stone).

In an HLRB hearing involving HIOSH whistleblower cases, whether they are non-merit or merit cases, the party initiating the proceeding has the burden of proof. This includes both the burden of producing evidence as well as the burden of persuasion by a preponderance of the evidence.⁸ The party with the burden of proof need only offer enough evidence to tip the scale slightly in the party’s favor, while the party without the burden can succeed by keeping the scale evenly balanced. See Kekona v. Abastillas, 113 Hawai’i 174, 180, 150 P.3d 823, 829 (2006). Upon establishing a prima facie case of retaliation and presenting the legitimate non-retaliatory reason for the adverse action, the HLRB will assess whether the stated reasons are a pretext. Pretext can be shown if the retaliatory motive appears to be the actual reason for the adverse action or if the respondent’s explanations are deemed not credible. At this stage, the respondent is not required to persuade the HLRB but must provide legally sufficient explanations of its legitimate reasons that are clear and reasonably specific. HIOSH will use the reasonable cause standard during the investigative phase, aiming to match the effectiveness as federal OSHA while recognizing that the HRLB utilizes various standards (i.e., preponderance of evidence, but-for causation, and contributing factor) throughout its analytical process.

VII. Testing Respondent’s Defense (a.k.a. Pretext Testing)

Testing the evidence supporting and refuting Respondent’s defense is a critical part of a whistleblower investigation. HIOSH refers to this testing loosely as “pretext testing” although a showing that the employer’s explanation for the adverse action was pretextual is not, strictly speaking, required under HRS § 396-8(e). Investigators are required to conduct pretext testing of Respondent’s defense.

• A pretextual position or argument is a statement that is put forward to conceal a true purpose for an adverse action.
• Thus, pretext testing evaluates whether the employer took the adverse action against the employee for the legitimate business reason that the employer asserts or whether the action against the employee was in fact retaliation for Complainant’s engaging in protected activity.

Proper pretext testing requires the investigator to look at any direct evidence of retaliation (such as statements of managers that action is being taken because of Complainant’s protected activity) and the circumstantial evidence that may shed light on what role, if any, the protected activity played in the employer’s decision to take adverse action. As noted above, relevant circumstantial evidence can include a wide variety of evidence, such as:

• An employer’s shifting explanations for its actions;
• The falsity of an employer’s explanation for the adverse action taken;
• Temporal proximity between the protected activity and the adverse action;
• Inconsistent application of an employer’s policies or rules against the employee as compared to similarly situated employees who did not engage in protected activity;
• A change in the employer’s behavior toward Complainant after they engaged (or were suspected of engaging) in protected activity; and
• Other evidence of antagonism or hostility toward protected activity.

For example, if Respondent has claimed Complainant’s misconduct or poor performance was the reason for the adverse action, the investigator should evaluate whether Complainant engaged in that misconduct or performed unsatisfactorily and, if so, how the employer’s rules deal with this and how other employees engaged in similar misconduct or with similar performance were treated.

Lines of inquiry that will assist the investigator in testing Respondent’s position will vary depending on the facts and circumstances of the case and include questions such as:

• Did Complainant actually engage in the misconduct or unsatisfactory performance that Respondent cites as its reason for taking adverse action? If Complainant did not engage in the misconduct or unsatisfactory performance, does the evidence suggest that Respondent’s actions were based on its actual but mistaken belief that there was misconduct or unsatisfactory performance?
• What discipline was issued by Respondent at the time it learned of the Complainant’s misconduct or poor performance? Did Respondent follow its own progressive disciplinary procedures as explained in its internal policies, employee handbook, or collective bargaining agreement?
• Did Complainant’s productivity, attitude, or actions change after the protected activity?
• Did Respondent’s behavior toward Complainant change after the protected activity?
• Did Respondent discipline other employees for the same infraction and to the same degree?

In circumstances in which witnesses or relevant documents are not available, the investigator should consult with the supervisor. Consultation with DAG may also be appropriate in order to determine how to resolve the complaint. In cases decided based on the nexus element of the prima facie case, a description of the investigator’s pretext testing (or reason(s) it was not performed) must be included in the ROI.

VIII. Policies and Practices Discouraging⁹ Injury Reporting

There are several types of workplace policies and practices that could discourage injury reporting and thus violate HRS § 396-8(e). Some of these policies and practices may also violate OSHA’s recordkeeping regulations at 29 CFR 1904.35 where there is coverage under the OSH Act. The most common potentially discriminatory policies are detailed below. Also, the potential for unlawful retaliation under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates.

A. Injury-Based Incentive Programs and Drug/Alcohol Testing

For guidance on evaluating injury-based incentive programs and drug/alcohol testing after an accident under analogous whistleblower statutes, investigators should refer to the following memorandum: Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under CFR Section 1904.35(b)(1)(iv), October 11, 2018. Testing only the injured employees involved in an incident, and not the uninjured ones as well, is a discriminatory policy.

B. Employer Policy of Disciplining Employees Who are Injured on the Job, Regardless of the Circumstances Surrounding the Injury.

Reporting an injury is a protected activity. This includes filing a report of injury under a worker’s compensation statute. Disciplining all employees who are injured, regardless of fault, is a discriminatory policy. Discipline imposed under such a policy against an employee for reporting an injury is therefore a direct violation of HRS 396-8(e). In addition, such a policy is inconsistent with the employer’s obligations under 29 CFR 1904.35(b), and where it is encountered in an OSH Act case, a referral for a recordkeeping investigation will be made.

C. Discipline for Violating Employer Rule on Time and Manner for Reporting Injuries.

Cases involving employees who are disciplined by an employer following their report of an injury warrant careful scrutiny, most especially when the employer claims the employee has violated rules governing the time or manner for reporting injuries. Because the act of reporting an injury directly results in discipline, there is a clear potential for violating HRS § 396-8(e). HIOSH recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statutes, however, such procedures must be reasonable and may not unduly burden the employee’s right and ability to report. For example, the rules cannot penalize employees who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Nor may enforcement of such rules be used as a pretext for discrimination.

In investigating such cases, the following factors should be considered:

• Whether the employee’s deviation from the procedure was minor or extensive, inadvertent or deliberate.
• Whether the employee had a reasonable basis for acting as they did.
• Whether the employer can show a substantial interest in the rule and its enforcement.
• Whether the employer genuinely and reasonably believed the employee violated the rule.
• Whether the discipline imposed appears disproportionate to the employer’s asserted interest.

Where the employer’s reporting requirements are unreasonable, unduly burdensome, or enforced with unjustifiably harsh sanctions, not only may application of the employer’s reporting rules be a pretext for unlawful retaliation, but also the reporting rules may have a chilling effect on injury reporting that may result in inaccurate injury records, and a referral for a recordkeeping investigation of a possible 1904.35(b)(1) violation should be made if applicable.

D. Discipline for Violating Safety Rule

In some cases, an employee is disciplined after disclosing an injury purportedly because the employer concluded that the injury resulted from the employee’s violation of a safety rule. Such cases warrant careful evaluation of the facts and circumstances. HIOSH encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. A careful investigation is warranted, however, when an employer might be attempting to use a work rule as a pretext for discrimination against an employee for reporting an injury.

Several circumstances are relevant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline on employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer should also be considered. Vague and subjective rules, such as a requirement that employees “maintain situational awareness” or “work carefully” may be manipulated and used as a pretext for unlawful discrimination. Therefore, where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Analysis of the employer’s treatment of similarly situated employees (employees who have engaged in the same or a similar alleged violation but have not been injured) is critical. This inquiry is essential to determining whether such a workplace rule is indeed a neutral rule of general applicability, because enforcing a rule more stringently against injured employees than non-injured employees may suggest that the rule is a pretext for discrimination in violation of section HRS § 396-8(e).

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1. Skellington v. City and County of Honolulu, Case No. OSAB 97-015 (Labor and Industrial Relations Appeals Board, August 29, 2001) (Skellington). ↩︎
2. (a) The protected activity must constitute a substantial reason for the discharge or other adverse action, or (b) The discharge or other adverse action would not have taken place “but for” engagement in the protected activity by the employee. [Eff 7/6/98] (Auth: HRS §396-4) (Imp: HRS §396-8) ↩︎
3. See Brock v. Roadway Express, Inc., 481 U.S. 252, 266 (1987) (plurality opinion) (noting that an HIOSH investigator may not be in a position to determine the credibility of witnesses or confront all of conflicting evidence, because the investigator does not have the benefit of a full hearing). ↩︎
4. Donovan v. R.D. Andersen Construction Company, Inc., 552 F.Supp. 249 (D. Kansas, 1982). ↩︎
5. Examples of such proceedings include but are not limited to: workplace inspections; a Complainant’s review of a decision not to enforce or of a HIOSH determination not to issue a citation; employee challenges to abatement dates; employee-initiated proceedings for the creation of OSHA or HIOSH standards; employee applications to modify or revoke a variance; employee judicial challenges to an OSHA standard; and employee petitions for judicial review of HLRB orders. ↩︎
6. Stone v. Hawaii Air Ambulance (Hawaii Life Flight) and DLIR, Case No. OSH 2011-10, Decision No. 28 at *27 (June 18, 2015) (Stone). ↩︎
7. Under the six environmental statutes, federal OSHA uses a motivating factor standard of causation. See DeKalb County v. U.S. Dep’t of Labor, 812 F.3d 1015, 1021 (11th Cir. 2016). A motivating factor is a substantial factor in causing an adverse action. It is a higher standard of causation than the contributing factor standard of causation, but a lower standard of causation than the “but for” standard. ↩︎
8. HRS § 91-10(5). Except as otherwise provided by law, the party initiating the proceeding shall have the burden of proof, including the burden of producing evidence as well as the burden of persuasion. The degree or quantum of proof shall be a preponderance of the evidence. [L 1961, c 103, §10; Supp, §6C-10; HRS §91-10; am L 1978, c 76, §1; am L 2003, c 76, §3] ↩︎
9. For the purposes of this section the word “injury” also includes “illness.” ↩︎