Chapter 5 – Case Disposition

I. Scope

This chapter sets forth the policies and procedures for arriving at a determination on the merits of a discrimination/whistleblower case; policies regarding withdrawal, settlement, dismissal, postponement, deferrals, appeals, and litigation; adequacy of remedies; and agency tracking procedures for timely completion of cases.

These policies and procedures are designed to ensure that HIOSH arrives at the appropriate determination for each whistleblower complaint by achieving a reasonable balance between an investigation’s timeliness and quality. Attention to the proper balance between quality and timeliness will ensure that each investigation receives the appropriate level of supervisory review, and that a final determination is reached as expeditiously as possible while ensuring that each investigation meets HIOSH’s standards for quality and thoroughness. These procedures reflect the best practices developed by OSHA regions.

II. Review of Investigative File and Consultation Between the Investigator and Supervisor

During the investigation, the investigator must regularly review the file to ensure all pertinent information is considered. The investigator will keep the SI apprised of the progress of the case, as well as any novel or noteworthy issues encountered. The SI will advise the investigator regarding any unresolved issues and assist in reaching a recommended determination and deciding whether additional investigation is necessary.

III. Report of Investigation

Except as provided below, the investigator must report the results of the investigation in a Report of Investigation (ROI). The ROI is HIOSH’s internal summary of the investigation written as a memo from the investigator to the supervisor.

The first page of the ROI must note the names and titles of the investigator and the reviewing supervisor, and HRS § 396-8(e) implicated by the complaint. It must also list the parties’ and their representatives’ (if any) names, addresses, phone numbers, fax numbers, and email addresses, and nothing else. The remainder of the ROI must follow the policies and format described below.

The ROI must contain the elements listed below in Chapter 5.III.B, Elements of the ROI, that are relevant to the case, as well as a chronology of events. It may also include, as needed, a witness log and any other information required by the Administrator. The ROI must include citations to specific exhibits in the case file as well as other information necessary to facilitate supervisory review of the case file. The citations must note the page number of the exhibit. Using abbreviations for the citations, which should be explained, is helpful to reduce writing time. If a

witness log is included in the ROI, any witnesses who were suggested by the Complainant or Respondent but who HIOSH did not interview should be identified with contact information (if it exists) and the reason for not interviewing.

The ROI must be signed by the investigator. It must be reviewed and approved in writing by the supervisor before the findings are issued.

1. No ROI/Limited ROI Required
   Complaints that result in a settlement, withdrawal, or dismissal for lack of cooperation/unresponsiveness will require only an entry into the OIS-Whistleblower database (or a successor database) in lieu of a Report of Investigation. The notation in the OIS – Whistleblower case comment section must contain the reasons why the case is being closed and reference any supporting documents (i.e., exhibits). Upon closing the case, the OIS -Whistleblower Case Summary will be added to the case file. The issuance of a signed determination letter in these case disposition types signifies supervisory approval.
2. Elements of the ROI
   The ROI must include a chronology of the relevant events of the case and, as applicable,¹ analysis of the following issues, unless otherwise noted:
   1. Coverage
      Give a brief statement of the basis for coverage. This statement includes information about Respondent and Complainant relevant to HRS § 396-8(e). Delineate the information that brings the case under the applicable statute. Also explain the coverage of Complainant. If coverage was disputed, this is where HIOSH’s determination on the issue should be addressed. If it is determined that there is no coverage, then no further discussion of the elements is required in the ROI. In addition, this section should note the location of the company and the nature of the business, if not already addressed.
   2. Timeliness
      Indicate the actual date that the complaint was filed and whether or not the filing was timely under HRS § 396-8(e), including any equitable tolling. If it is determined that the complaint is untimely, then no further discussion of the elements is required in the ROI.
   3. The Elements of a Violation
      Discuss and evaluate the facts as they relate to the four elements of a violation, following Chapter 2.V, Elements of a Violation, and 2.VI, Causation Standards.
      1. Protected Activity
      2. Respondent Knowledge/Suspicion
      3. Adverse Action
      4. Nexus     
         If there is conflicting evidence about a relevant matter, the investigator must make a determination and explain the reasoning supporting the conclusion.
   4. Employer Defense/Affirmative Defense and Pretext Testing
      Respondent must produce evidence to rebut Complainant’s allegations of retaliation in order for a case to be dismissed for lack of nexus. For example, if Respondent alleges that it discharged Complainant for excessive absenteeism, misconduct, or poor performance, Respondent must provide evidence to support its defense. The investigator must analyze such evidence in the ROI and explain the reasoning supporting the investigator’s conclusion.
      
      Below is an example of a pretext evaluation (with pretext found), placed in the Nexus analysis section of the ROI:
      
      Respondent claimed that Complainant was laid off to conform with the CBA provision that required seven journeymen on the job before hiring a second apprentice. However, interviews and Respondent’s employee roster revealed that this provision in the CBA was routinely disregarded and that second apprentices had been hired on several occasions in recent years, even with less than seven journeymen present. Therefore, Respondent’s defense is not believable and is a pretext for retaliation.
      
      An example where pretext is not found is:
      
      Respondent claimed that Complainant was laid off to conform with the CBA provision that required seven journeymen on the job before hiring a second apprentice. Interviews and Respondent’s employee roster revealed that this provision in the CBA was routinely followed. Therefore, Respondent’s reason for laying off Complainant is not pretext; it laid Complainant off for this legitimate business reason.      
   5. Remedy
      In merit cases, this section should describe all appropriate relief due to Complainant, consistent with the guidance for determining and documenting remedies in Chapter 6. Any remedy that will continue to accrue until payment, such as back wages, insurance premiums, and other remedies that continue to accrue should be stated as a formula when practical; that is, amounts per unit of time, so that the proper amount to be paid to Complainant is calculable as of the date of payment. For example, “Back wages in the amount of $13.90 per hour, for 40 hours per week, from January 2, 2007, through the date of payment, less the customary deductions, must be paid by Respondent.”
   6. Recommended Disposition
      The recommended disposition is a required element of the ROI. The investigator shall provide the recommendation for the disposition of the case, along with the reasoning supporting such recommendation.           
   7. Other Relevant Information
      Any novel legal or other unusual issues, information about related complaints, the investigator’s assessment of a proposed settlement agreement, or any other relevant consideration(s) in the case may be addressed here.
      
      For instance, if the investigator is recommending that HIOSH defer to another proceeding, discussion of the other proceeding and why deferral is appropriate should be contained in this section of the ROI.

Elements of a ROI
Standard first page: 1. Names & titles of investigator and reviewing supervisor 2. Implicated Act(s) 3. Parties’ and their representatives’ (if any) full contact information
Chronology with citations to evidence (Fact/Assertion notation optional)
Analysis of: (as applicable)
Coverage. If Coverage found, then: (write-up can be same as Findings)
Timeliness. If timely, then: (write-up can be same as Findings)
Elements of violation, as applicable: Protected activity Respondent’s knowledge Adverse Action Nexus IF all elements are found, then:
Respondent’s defense/pretext testing
Remedy, only if merit has been found.
Recommended disposition
Other relevant information, if any.
Signatures of investigator and reviewing supervisor

IV. Case Review and Approval by the Supervisor

1. Review
   The investigator will notify the supervisor when the completed case file, including, if applicable, the ROI and draft Determination Notice and Order (DNO) or other draft case closing documents (such as approvals of withdrawal requests and settlements), is ready for review on the HIOSH M drive. The supervisor will review the file to ensure technical accuracy, the thoroughness and adequacy of the investigation, the correct application of law to the facts, and completeness of the DNO or other closure letter. Such a review will be completed as soon as practicable after receipt of the file.
2. Approval
   If the supervisor determines that appropriate issues have been explored and concurs with the analysis and recommendation of the investigator, the supervisor will sign on the signature block on the last page of the ROI and record the date the review was completed. If the supervisor does not concur with the analysis and recommendation of the investigator, the supervisor will make a note on the Case Activity Log of the reason for non-concurrence and return the case file to the investigator for additional work.
   
   The supervisor’s signature on the ROI serves as initial approval of the recommended determination. Depending on the Administrator’s policy and procedures, the supervisor’s approval may be the final approval in most cases. The OH Branch Manager’s review of the case file and final approval is required for all merit and noteworthy cases. Cases in which the OH Branch Manager is providing final approval will be reviewed by the OH Branch Manager once the supervisor approves the ROI and draft DNO or other case closing documents and notifies the OH Branch Manager that the case is ready for review.

V. Case Closing Alternatives

Docketed whistleblower cases may be resolved by a variety of means.  Completed whistleblower investigations will be resolved through one of the following: 

1. A referral to DAG for HLRB hearings, or
2. The issuance of a DNO in merit cases.
3. Complainants may also request to withdraw their whistleblower claims at any point in the investigation.
4. HIOSH may close a case due to a settlement.
5. HIOSH may determine that a deferral to the results of another proceeding is appropriate under the circumstances. HIOSH will issue findings noting the deferral in these circumstances.

Each case disposition option, along with the applicable procedures, is discussed below.  

VI. Cases Under HRS §396-8(e) (State Equivalent to OSHA’s Section 11(c) Statute)

1. Merit Cases
   Where HIOSH believes that a case is meritorious under HRS § 396-8(e), the case must be forwarded to DAG for review. The Administrator (or designee) and other HIOSH staff will work with DAG prior to and after the referral, so that the case may be fully reviewed for legal sufficiency. If DAG determines that additional investigation is required prior to approving a case for a merit finding, the supervisor normally will assign such further investigation to the original investigator. If DAG determines that the case is not suitable for a merit finding, a DNO will be issued dismissing the case and Complainant will be notified of the right to appeal. 
   
   A DNO with a merit finding must be signed by Administrator (or designee) and addressed to Respondent (or Respondent’s counsel if applicable, with a copy to Respondent), with a copy to Complainant (and Complainant’s counsel if applicable).  The DNO must adhere to the format described below and must advise the parties of the right to object to the DNO and request a hearing before the HLRB. See Chapter 5.VIII.A. The DNO must be sent to the parties by a method that can be tracked.  This includes, but is not limited to: email; U.S. Mail, return receipt requested; a third-party commercial carrier that provides delivery confirmation; or hand delivery.  Proof of delivery will be preserved in the file with copies of the DNO to maintain accountability. 
   
   HIOSH must consult with DAG prior to issuing merit findings. If a hearing is requested, DAG represents HIOSH (referred to as the Director in the applicable regulations).
2. Dismissals (Non-Merit Cases)
   1. Issuance of Non-Merit DNO
      For non-merit determinations or dismissals, the parties must be notified of the results of the investigation by the issuance of a DNO addressed to Complainant (or Complainant’s counsel if applicable, with a copy to Complainant), and copied to Respondent (and Respondent’s counsel if applicable). 
      
      The DNO must advise Complainant of the right to contest the determination and order pursuant to HRS § 396-11(e). The DNO must be sent to the parties by a method that can be tracked. This includes, but is not limited to email, certified mail, or hand delivery. Proof of delivery will be preserved in the file with copies of the DNO to maintain accountability.
3. Notice of Contest or Appeal
   Should a whistleblower complaint be dismissed pursuant to a non-merit determination and order, the Complainant shall have the right to contest such dismissal and request a review by the HLRB. Similarly, if a whistleblower complaint is determined to be valid and a merit determination and order is issued, the Respondent shall have the right to contest the determination and seek a review by the HLRB.²[1]
    
   The notice of contest must be made in writing to HIOSH within 20 calendar days of Complainant’s or Respondent’s receipt of the DNO (unless equitable tolling applies; see Chapter 3.III.D.4, Tolling (Extending) the Complaint Filing Deadline), with a copy to the Administrator. The request may be mailed, faxed, or emailed ([email protected]).  Verbal requests for appeals are not accepted.
    
   The first day of the request period is the day after Complainant’s or Respondent’s receipt of the DNO. Generally, the request date is the date of the postmark, facsimile transmittal, or email communication. If the postmark is absent or illegible, the request date is three days prior to the date the notice of contest is received. If the last day of the request period falls on a weekend or a state holiday, or if the HIOSH Office is closed, then the next business day will count as the final day.
    
   Upon HIOSH’s receipt of a notice of contest under HRS § 396-8(e), the SI must promptly make available a copy of the case file and any additional comments regarding the notice of contest to DAG for review. The notice of contest must be preserved in the file.  
    
   HLRB reviews the case de novo for proper application of the law to the facts:  
   • If the decision is supported by the evidence and is consistent with the law, HLRB will uphold or affirm the HIOSH determination.  
   • If not, the decision may be reversed. Pursuant to HRS § 396-11(i), the HLRB is authorized to modify an order, or to continue the matter upon terms and conditions as may be deemed necessary, or to direct other relief as it considers appropriate. Thus, the HLRB may determine that a Respondent violated HRS § 396-8(e) and issue their own restitution and penalties as may be required to make Complainant whole, in accordance with the provisions set forth in HRS §§ 396-8(e)(6) and 396-10(h).
   • In certain instances, the HLRB may remand the case back to HIOSH for further investigation. This may occur in cases where equitable tolling provisions were not adequately addressed. Upon remand, HIOSH is required to investigate the issues specified in the HLRB order, render a final determination, and submit a copy of this determination as evidence to the HLRB. Any party adversely affected by the final determination has the right to appeal, following the standard procedural steps for such appeals.
4. Multi-Respondent Mixed Determinations
   In some cases, Complainant alleges retaliation by multiple respondents and HIOSH finds that one Respondent violated HRS § 396-8(e) but another Respondent did not. In those cases, HIOSH will address both Respondents in a single DNO. HIOSH will issue merit findings against the Respondent found to have violated the law and, in the same set of findings, indicate that it has determined that the allegations against the other Respondent(s) are not meritorious.
   
   The DNO in such cases should be addressed to the Complainant and all Respondents. The DNO must be sent to all of the parties by a method that can be tracked. This includes, but is not limited to email, delivery receipt required; U.S. Mail, return receipt requested; a third-party commercial carrier that provides delivery confirmation; or hand delivery. Proof of delivery to each party should be preserved in the file with copies of the DNO to maintain accountability.
   
   In addition to containing a full explanation of the DNO’s basis for finding retaliation with respect to at least one Respondent, the DNO must include a brief description of the rationale for the decision to dismiss the case with respect to the Respondent(s) that HIOSH concludes did not violate the law.

VII. Determination Notice and Order (DNO)

The DNO is written in the form of a letter, rather than a report, and generally must follow the format described below.

1. Format of the DNO
   A DNO should contain the following elements, as applicable:
   1. Introduction
      In the opening paragraph, identify the parties, the statute under which the complaint was filed, and include a brief sentence summary of the allegation(s) made in the complaint.
      
      The second paragraph will contain standard language such as:
      
      Following an investigation by a duly authorized investigator, the Director of Labor & Industrial Relations, acting through [his/her] agent, the Administrator of the Hawaii Occupational Safety and Health Administration, pursuant to [insert statute], finds that there is [not] reasonable cause to believe that Respondent [violated/did not violate] HRS § 396-8(e) and issues the following findings.
      
      The findings generally need not recount the details of the investigation, such as listing the witnesses interviewed or documents requested.
   2. Coverage
      Explain whether Complainant and each Respondent are covered by the statute and if so, why. If there is no coverage, no further findings are required.
   3. Timeliness
      Explain whether the whistleblower complaint was filed within the applicable statute of limitations. If the complaint was not timely filed but the late filing is being tolled for any of the reasons set forth in Chapter 3.III.D.4, Tolling (Extending) the Complaint Filing Deadline, the reasons must be stated. If the complaint was not timely filed and Complainant’s request for tolling was denied despite Complainant’s explicit request for tolling, the denial should be explained. If the complaint was untimely, no further findings are required.
   4. Narrative
      Findings should contain a brief description of Complainant’s allegation, a brief description of Respondent’s defense, and a brief explanation of the events relevant to the determination.
      
      Tell the story in terms of the facts that have been established by the investigation, addressing disputed facts only if they are critical to the determination. Often, recounting the events in chronological order is clearest to the reader. Only unresolved discrepancies should be presented as assertions. The findings generally should not state that a witness saw, heard, testified, or stated to the investigator, or that a document showed something. In other words, the findings must not be summaries of each witness’s testimony. For example, a finding might be: “Complainant complained to the dispatcher that the brakes on the truck were defective.” An improper finding would be: “Complainant told the investigator that he had complained to the dispatcher about defective brakes on the truck.” The dates for the protected activity and the adverse action should be stated to the extent possible. Care should be taken not to reveal or identify confidential witnesses or detailed witness information in the DNO.
      
      In cases where the protected activity relates to a potential violation of a regulation, the findings generally should cite the relevant regulation whenever possible. This reference must be made even if Complainant did not refer to the specific regulation in the course of engaging in the protected activity or in providing information to HIOSH.
      
      In cases in which compensatory damages are ordered, the narrative should include relevant facts in support of the type and amount of damages (see Chapter 6 for discussion of the facts and factors relevant to ordering compensatory and/or punitive damages).
   5. Analysis and Conclusion About Violation
      Following the narrative, the DNO should contain a brief summary of HIOSH’s analysis on each prima facie element or issue relevant to the determination and HIOSH’s conclusion regarding whether there has been a violation of HRS § 396-8(e). If compensatory damages are ordered, the findings should contain a brief summary of HIOSH’s basis for awarding such damages.
      
      For instance, non-merit findings would contain analysis and a conclusion similar to one of the following options:
      
      Based on the foregoing, HIOSH dismisses this complaint because [choose one]:
      • Complainant or Respondent [or both] is not covered by [insert acronym for statute and reason that there is no coverage];
      • Complainant did not file the complaint within the [insert days] allowed by [insert acronym for statute] and there is no basis for tolling the filing period;
      • HIOSH has no reasonable cause to believe that Complainant engaged in protected activity under [HRS § 396-8(e) and reason that there is no protected activity]
      • HIOSH has no reasonable cause to believe that Complainant suffered an adverse action; [insert reason for HIOSH’s conclusion]; or
      • HIOSH has no reasonable cause to believe that but for Complainant’s protected activity the adverse action would not have been taken against Complainant. [Insert brief explanation for HIOSH’s conclusion that there is no nexus between the protected activity and the adverse action].
   6. Non-Pecuniary Damages
      In merit cases, the rationale, the rationale for ordering any punitive damages or any non-pecuniary compensatory damages (such as damages for emotional distress, mental anguish, loss of reputation) should be concisely stated here. See Chapter 6.VI.B, Determining When Compensatory Damages are Appropriate, for a discussion of when punitive non-pecuniary compensatory damages may be appropriate.
   7. Order
      In merit cases only, list all relief being awarded. The reinstatement order will generally state: “Respondent shall immediately reinstate Complainant to their former position with all the terms, conditions, and benefits of that position.” Relief should be determined and documented in the case consistent with the guidance in Chapter 6, Remedies. When back pay is awarded, it should be stated in terms of earnings per hour (or other appropriate wage unit) covering the time missed minus interim earnings. This allows for the possibility that damages may continue to accrue after the Order. The exact amount of compensatory damages (pecuniary and non-pecuniary) must be stated. The interest on back pay and pecuniary damages will be stated in terms of the interest rate described in Chapter 6.VIII, Interest. The order will also set forth non-monetary remedies, as appropriate (see Chapter 6.X, Non-Monetary Remedies). In addition, a civil penalty of not more than $9,054 may be assessed. The SI must finalize the DNO issued to Respondent, with a copy sent to Complainant, for the Administrator’s signature.
   8. The Right to File an Appeal
      In both merit and non-merit findings, the DNO must advise Complainant or Respondent of the right to appeal the determination pursuant to HRS § 396-11.
   9. Signature
      The Administrator (or designee) must sign the DNO.
2. Abbreviated DNO
   When a case is dismissed due to deferral, lack of cooperation/unresponsiveness, or without an investigation (e.g., complaint is untimely, contains no prima facie allegation, or there is no coverage), the DNO may be abbreviated. The abbreviated DNO must state why the case is being closed (e.g., that Complainant has not cooperated with the investigation; the complaint was untimely). Where the complaint was untimely, the date of the adverse action and the date of the filing of the complaint must be included in the findings. Where a complaint is dismissed for lack of cooperation/unresponsiveness, HIOSH’s attempts to contact Complainant should be documented in the DNO. The abbreviated DNO must inform the parties of the right to object to the DNO and appeal before the HLRB.

VIII. Dismissals for Lack of Cooperation/Unresponsiveness — Complainant

See Chapter 4.VI, Lack of Cooperation/Unresponsiveness, for the requirements and procedures for dismissing complaints for LOC.

IX. Withdrawal

Complainant, with HIOSH’s approval, may withdraw the complaint at any time during HIOSH’s processing of the complaint.³[1]  However, it must be made clear to Complainant that by entering a withdrawal, they are forfeiting all rights to seek review or appeal, and the case will not be reopened.  

Withdrawals may be requested either orally or in writing. It is advisable, however, for the investigator to obtain a signed withdrawal request whenever possible. In cases where the withdrawal request is made orally, the investigator will either record the withdrawal conversation or confirm in writing the Complainant’s desire to withdraw. As part of the request, Complainant must also indicate whether the withdrawal is due to a settlement. If Complainant is seeking to withdraw a complaint due to settlement, HIOSH must inform Complainant of the requirement to submit the settlement for HIOSH’s approval. More information regarding HIOSH’s review and approval of settlement agreements is available in Chapter 7. 

Once the supervisor reviews and approves the request to withdraw the complaint, a letter will be sent to Complainant, clearly indicating that the case is being closed based on Complainant’s request for withdrawal and that Complainant has forfeited all rights to seek review or appeal. The withdrawal approval letter will be sent using a method that permits HIOSH to confirm delivery, such as email or U.S. mail, delivery confirmation required, or hand delivery. Proof of delivery must be preserved in the file with copies of the letters.  

Although Complainant’s request to withdraw is usually granted, there may be situations in which approval of the withdrawal is not warranted. See, e.g. HAR §12-57-10. Situations in which approval for withdrawal may be denied include, but are not limited to, a withdrawal made under duress, the existence of similarly situated complainants other than Complainant requesting withdrawal, adverse effects on employees in the workplace other than Complainant if the case is not pursued, and the existence of a discriminatory policy or practice. If HIOSH does not approve the request for withdrawal, HIOSH will document the denial and proceed with the continuation of the investigation.

When Complainant elects not to pursue their complaint before docketing, the complaint will be administratively closed.

X. Settlement

Voluntary resolution of disputes is desirable, and investigators are encouraged to actively assist the parties in reaching an agreement, where possible.  It is HIOSH policy to seek settlement of all cases determined to be meritorious prior to referring the case to DAG. Furthermore, at any point prior to the completion of the investigation, HIOSH will make every effort to accommodate an early resolution of complaints in which both parties seek it. Settlement requirements and procedures, including the requirement to submit the settlement agreement for HIOSH’s review and approval, are discussed in detail in Chapter 7.

XI. Postponement/Deferral

Due regard should be paid to the determination of other forums established to resolve disputes which may also be related to complaints under the HIOSH whistleblower statute.  Thus, postponement and/or deferral may be advised when there is a proceeding that meets the criteria below. This policy on postponement and deferral is based on HAR §12-57-11, which governs section 396-8(e) cases, and on case law articulating analogous standards for postponement and deferral in cases under other OSHA whistleblower statutes.

1. Postponement
   HIOSH may decide to delay an investigation pending the outcome of an active proceeding under a collective bargaining agreement or another law. The rights asserted in the other proceeding must be substantially the same as the rights under HRS § 396-8(e) and those proceedings must not likely violate the rights of Complainant under HRS § 396-8(e). The factual issues to be addressed by such proceedings must be substantially the same as those raised by the complaint. The forum hearing the matter must have the power to determine the ultimate issue of retaliation. For example, it may be appropriate to postpone when the other proceeding is under a broadly protective state whistleblower statute, but not when the proceeding is under an unemployment compensation statute, which typically does not address retaliation. The investigator must consult with DAG to make these determinations. To postpone the HIOSH case, the parties must be notified that the investigation is being postponed pending the outcome of the other proceeding and that HIOSH must be notified of the results of the proceeding upon its conclusion. The case must remain open during the postponement
2. Deferral
   When another agency or tribunal has issued a final determination regarding the same adverse action(s) alleged in a HIOSH whistleblower complaint, the investigator will review the determination and assess, based upon the requirements listed below, whether or not HIOSH should defer to the agency’s or tribunal’s conclusion and dismiss the case. The investigator and supervisor must review the results of the proceeding to ensure that:
   1. All relevant issues were addressed; 
   2. The proceedings were fair, regular, and free of procedural infirmities; and 
   3. The outcome of the proceedings was not repugnant to the purpose and policy of HIOSH whistleblower statute.

The supervisor must obtain the concurrence of DAG for this determination. This assessment will be documented in an ROI prepared for the case.

As noted above, for all relevant issues to have been addressed, the forum hearing the matter must have the power to determine the ultimate issue of retaliation. In other words, the adjudicator in the other proceeding must have considered whether the adverse action was taken, at least in part, because of Complainant’s alleged protected activity.

Repugnancy deals not only with the violation, but also the completeness of the remedies. Thus, if for instance, Complainant was reinstated as a result of the other proceeding, but back pay was not awarded, deferral would not be appropriate.

If the other action was dismissed without an adjudicatory hearing, deferral is ordinarily not appropriate. However, if a settlement was approved or entered into by another government agency, such as the NLRB, or another third-party entity such as a labor union, deferral could be appropriate if the criteria for deferral above are met.  Employer-employee settlements that release a HIOSH whistleblower claim must be approved by HIOSH in accordance with Chapter 7.

In cases where the investigator recommends a deferral to another agency’s or tribunal’s decision, grievance proceeding, arbitration, or other appropriate determination, an abbreviated DNO based on the deferral will be issued dismissing the case. The parties will be notified of their right to appeal or request a review by HLRB. The case will be considered closed at the time of the deferral and will be recorded in OIS-Whistleblower as “Dismissed.” If the other proceeding results in a settlement, it will be recorded as “Settled Other,” and processed in accordance with the procedures set forth in Chapter 7. 

XII. Documenting Key Dates in OIS-Whistleblower

For purposes of documenting case disposition, key dates must be accurately recorded in OIS -Whistleblower in order to maintain data integrity and measure program performance.

1. Date Complaint Filed
   The date a complaint is filed is the date of the postmark, facsimile transmittal, email communication, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at the HIOSH office. If tolling applies, the basis for tolling should be explained in the OIS -Whistleblower case comments. See Chapter 3.III.D.3, Timeliness of Filing, and3.III.D.4, Tolling (Extending) the Complaint Filing Deadline.
2. ROI Dates
   The date upon which the investigator submitted the ROI to the supervisor for review and the date upon which the supervisor approved the ROI must be recorded in OIS-Whistleblower.
3. Determination Date
   The date upon which the DNO or closing letter is dated is the determination date.
4. Date Request for Review or Appeal Filed
   The date a request for review or appeal/notice of contest is filed is the date of the postmark, facsimile transmittal, email communication, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at the HIOSH office. The investigator or supervisor will enter the filing date into OIS-Whistleblower.
5. Date of Key Post-HIOSH Events
   Any party may appeal a HIOSH determination and request a hearing before HLRB, petition for review of an HLRB decision by the Hawaii Intermediate Court of Appeals (ICA) and petition the Supreme Court for review of an ICA decision. The key dates for these actions and decisions must be documented in OIS-Whistleblower. HIOSH must document the date a party objects to an HIOSH determination and requests a hearing before HLRB, the date of the HLRB decision, the date a party petitions for review of the HLRB decision by the ICA or the Supreme Court, along with the dates of the subsequent HLRB/ICA (and, rarely, Supreme Court) decisions.
   

Disposition	OIS-Whistleblower	ROI	DNO	Parties Receive
Administratively Closed (e.g., prior to docketing, complaint determined to be untimely or contains no prima facie allegation)	Entry of complaint information	N/A		Complainant receives written explanation and confirmation of the screen-out with appeal rights
Settled (HIOSH approved)	Summary in Case Comments field	None	None Required	Copy of signed settlements
Settled – Other (HIOSH approved)	Summary in Case Comments field	None	None Required	Settlement approval letter
Dismissal: Lack of Cooperation (LOC)/Unresponsiveness		Required	Abbreviated	Abbreviated DNO with appeal rights
Dismissed After Agency Review		Required	Abbreviated	Abbreviated DNO with appeal rights
Deferral		Required	Abbreviated	Abbreviated DNO with appeal rights
Non-Merit		Required	Required	DNO with appeal rights
Merit		Required	Required	DNO with appeal rights

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1. For example, if no protected activity is found after analysis of Complainant’s alleged protected activity, the investigator may proceed to the recommended disposition and need not analyze the remaining elements of the case (knowledge, adverse action, and nexus).  ↩︎
2. The appeal procedures described in this manual reflect the provisions of HRS § 396-11 in effect at the time of publication. Any future amendments to the statute may modify or supersede these procedures, including the process for contesting dismissals of complaints or orders issued by the Director, the HIOSH Administrator, or their designee. The most current version of HRS § 396-11 should be consulted to determine the applicable rights and procedures. ↩︎
3. Exception: HIOSH will not accept a withdrawal when the parties have reached a private settlement until HIOSH has obtained and reviewed the settlement. ↩︎