Chapter 6 – Remedies

I. Scope

This Chapter provides guidance on gathering evidence and determining appropriate remedies in whistleblower cases where a violation has been found. Investigators should consult with their supervisor in designing the appropriate remedies. The DAG should also be consulted on determining potential remedies in any case that HIOSH anticipates issuing merit findings.

II. General Principles

HRS § 396-8(e) is designed to compensate Complainants for the losses caused by the unlawful retaliation and to restore to Complainants the terms, conditions, privileges of their employment as they existed prior to Respondent’s adverse actions. The remedies available under the HIOSH whistleblower statute are also designed to mitigate the deterrent or “chilling” effect that retaliation has on employees other than the Complainant, who may be unwilling to report violations or hazards if they believe the employer will retaliate against whistleblowers.

HIOSH’s whistleblower statute provides for reinstatement, back pay, and compensatory damages for pecuniary losses¹and non-pecuniary damages.²[2] Where appropriate, Complainant’s remedies also include other remedies designed to make Complainant whole, such as receipt of a promotion that Complainant was denied, expungement of adverse references in the employment record, or a neutral employment reference. The statute does not permit punitive damages and recovery of attorney fees.

III. Reinstatement and Front Pay

1. Reinstatement
   Reinstatement of Complainant to their former position is the presumptive remedy in merit whistleblower cases involving a discharge, demotion, or an adverse transfer and is a critical component of making Complainant whole. Where reinstatement is not feasible for reasons such as those described in the following paragraph, front pay in lieu of reinstatement may be awarded from the date of the findings up to a reasonable amount of time for Complainant to obtain another comparable job.
2. Front Pay
   Front pay, which HIOSH considers to be economic reinstatement, is a substitute for actual reinstatement in rare cases where actual reinstatement, the presumptive remedy in cases of discharge, demotion, or adverse transfer, is not possible. – Situations where front pay may be appropriate include those in which Respondent’s retaliatory conduct has caused Complainant to be medically unable to return to work, or Complainant’s former position or a comparable    position no longer exists. Similarly, front pay may be appropriate where it is determined that a Respondent’s offer of reinstatement is not made in good faith or where returning to the workplace would result in debilitating anxiety or other risks to Complainant’s mental health. Front pay also may be available in the rare cases where such extreme hostility exists between Respondent and Complainant that Complainant’s continued employment would be unbearable.
   
   In cases where front pay may be a remedy, the investigator should set proper limitations. For example, the front pay should be awarded for a set amount of time and should be reasonable, based on factors such as the length of time that Complainant expects to be out of work and Complainant’s compensation prior to the retaliation. Front pay should be adjusted to account for any difference in pay between Complainant’s old job and the new job. DAG should be consulted when considering an award of front pay.

IV. Back Pay

Back pay is available under HRS §396-8(e).

1. Lost Wages
   Lost wages generally comprise the bulk of the back pay award. Investigators should compute back pay by deducting Complainant’s interim earnings (described below) from gross back pay. Investigators should support back pay awards with documentary evidence in the case file, including evidence of pay and bonuses at Complainant’s prior job and evidence of interim earnings. Relevant documentary evidence includes documents such as pay stubs, W-2 forms, and statements of benefits.
   
   Gross back pay is defined as the total earnings (before taxes and other deductions) that Complainant would have earned during the period of unemployment. Generally, this gross back pay is calculated by multiplying the hourly wage by the number of hours per week that Complainant typically worked. If Complainant is paid a salary or piece rate rather than an hourly wage, the salary or piece rate may be converted into a daily rate and then multiplied by the number of days that a Complainant typically would have worked. Depending on the circumstances, other methods for calculating back pay may be appropriate and DAG should be consulted as needed for assistance in determining the method for calculating back pay.
   
   The formula that HIOSH proposes using to compute back pay should be provided to DAG.
   
   Back pay should include any cost-of- living increases or raises that Complainant would have received if they had continued to work for Respondent. The investigator should ask Complainant for evidence of such increases or raises and keep the evidence in the case file. If Complainant requests a tax gross up and supports the request with appropriate evidence, HIOSH’s back pay calculation may include it. A “tax gross up” is an adjustment to back pay to compensate for the increased tax burden on Complainant of a lump sum award of back pay.
   
   A Respondent’s cumulative liability for back pay ceases when a Complainant rejects (or does not accept within a reasonable amount of time) a bona fide offer of reinstatement, which must afford Complainant reinstatement to a job substantially equivalent to the former position. Whether a reinstatement offer meets this requirement sometimes requires an evaluation of the facts and circumstances of the offer as compared to the complainant’s previous position, and consultation with DAG may be necessary to determine whether an offer is a bona fide offer of reinstatement. A Respondent’s liability for back pay can also cease in other circumstances, such as when Respondent goes out of business, when Respondent closes the location where Complainant worked without retaining the employees who worked at the location, or when Complainant becomes totally disabled or otherwise unable to perform their former job.
   
   NOTE: Temporary Employees. A Complainant, who is a temporary employee, may receive back pay beyond the length of the temporary assignment from which they were terminated if there is evidence indicating that Complainant would either have continued their employment beyond the seasonal work or that they would otherwise have been rehired for the next season. Thus, in cases with temporary employees, the investigator must determine whether Complainant’s coworkers were offered new assignments. In addition, the investigator should ask Complainant whether Complainant applied for an alternate assignment. If Complainant reapplied and was not rehired and the complaint is still pending, Complainant may amend the complaint to include failure to rehire. See memorandum Clarification of Guidance for Section 11(c) Cases Involving Temporary Workers, issued May 11, 2016, for further information.
2. Bonuses, Overtime and Benefits
   Investigators also should include lost bonuses, overtime, benefits, raises, and promotions in the back pay award when there is evidence to determine these figures.
3. Interim Earnings and Unemployment Benefits
   Interim earnings obtained by Complainant will be deducted from a back pay award. Interim earnings are the total earnings (before taxes and other deductions) that Complainant earned from interim employment subsequent to Complainant’s termination and before assessment of the damages award.
   
   Interim earnings should be reduced by expenses incurred as a result of accepting and retaining an interim job, assuming the expenses would not have been incurred at the former job. Such expenses may include special tools and equipment, necessary safety clothing, union fees, mileage at the applicable IRS rate per driving mile for any increase in commuting distance from the distance travelled to Respondent’s location, special subscriptions, mandated special training and education costs, special lodging costs, and other related expenses.
   
   Interim earnings should be deducted from back pay using the periodic mitigation method. Under this method, the time in which back pay is owed- is divided into periods. The period should be the smallest possible amount of time given the evidence available. Interim earnings in each period are subtracted from the lost wages attributable to that period. This yields the amount of back pay owed for that period. If the interim earnings exceed the lost wages in a given period, the amount of backpay owed for that period would be $0.00, not a negative amount. The back pay owed for each period is added together to determine total backpay award.
   
   Unemployment insurance benefits received are not deducted from gross back pay. The investigator should determine whether worker’s compensation benefits that replace lost wages during a period in which back pay is owed may be deducted from gross back pay after consultation with DAG.
4. Mitigation Considerations
   Complainants have a duty to mitigate their damages incurred as a result of the adverse employment action. To be entitled to back pay, a Complainant must exercise reasonable diligence in seeking alternate employment, except as noted below. However, Complainants need not succeed in finding new employment; they are required only to make an honest, good faith effort to do so. The investigator should ask Complainant for evidence of their job search  and keep the evidence in the case file. Complainant’s obligation to mitigate their damages does not normally require that Complainant go into another line of work or  accept a demotion. However, generally, Complainants who are unable to secure substantially equivalent employment after a reasonable period of time must consider other available and suitable employment. In certain circumstances, such as when retaliation or the underlying safety issue causes disabling physical ailments, Complainants do not need to look for substantially equivalent employment.
5. Reporting of Back Pay to the Social Security Administration
   Respondents are required to submit appropriate documentation to the Social Security Administration, allocating the back pay award to the appropriate periods. The DNO where applicable must include this requirement.

V. Compensatory Damages

1. Pecuniary or Monetary Damages
   Pecuniary damages (a.k.a. monetary damages) may be awarded under HRS § 396-8(e). Pecuniary damages are Complainant’s out-of-pocket losses that result from or are likely to result from unlawful retaliation. Investigators must support awards of these types of damages with documentary evidence in the case file.
   
   Pecuniary damages can include, but are not limited to, losses such as: (1) out-of-pocket medical expenses resulting from the cancellation of a company health insurance policy; (2) medical expenses for treatment of symptoms directly related to the unlawful retaliation (e.g., post-traumatic stress disorder, depression, etc.); (3) credit card interest paid as a result of the unlawful retaliation; (4) fees, penalties, lost-interest, or other losses related to withdrawals from savings or retirement accounts made as a result of the unlawful retaliation; or (5) moving expenses if Complainant had to move as a result of the retaliation.
   
   Complainants may also recover expenses incurred as a result of searching for interim employment. Such expenses may include, but are not limited to, mileage at the current IRS rate per driving mile, employment agencies’ fees, meals and lodging when traveling for interviews, bridge and highway tolls, moving expenses, and other documented expenses.
2. Non-Pecuniary Damages
   Non-pecuniary damages include compensation for emotional distress, pain and suffering, loss of reputation, personal humiliation, and mental anguish resulting from Respondent’s adverse action. Courts regularly award compensatory damages for demonstrated mental anguish, loss of reputation, emotional distress, and pain and suffering in employment retaliation and discrimination cases. Such damages may be awarded under HRS § 396-8(e) although they are not necessarily appropriate in every case. HIOSH, with guidance from DAG, will evaluate whether compensation for these damages is appropriate.
   
   Entitlement to non-pecuniary damages is not presumed. Generally, Complainant must demonstrate both (1) objective manifestations of harm, and (2) a causal connection between the retaliation and the harm. Objective manifestations of harm include, but are not limited to, depression, post-traumatic stress disorder, and anxiety disorders. Objective manifestations may also include conditions that are not classified as medical conditions, such as sleeplessness, harm to relationships, and reduced self-esteem.
   
   Complainant’s own statement may be sufficient to prove objective manifestations of harm. Similarly, Complainant’s statement may be corroborated by statements of family members, friends, or coworkers if credible. Although evidence from healthcare providers is not required to recover non-pecuniary damages, statements by healthcare providers can strengthen Complainant’s case for entitlement to such damages.
   
   Evidence from a healthcare provider is required if Complainant seeks to prove a specific and diagnosable medical condition. Investigators should contact DAG to explore the possibility of obtaining a written waiver from Complainant to communicate with their health care provider to ensure compliance with HIPAA and Complainant’s privacy rights. To comply with privacy laws, any medical evidence must be marked as confidential in the case file and should not be disclosed except in accordance with HIOSH’s Uniformed Information Practices Act (UIPA) policies set forth in Chapter 9 or otherwise required by law.
   
   In addition to proof of objective manifestations of harm, there must be evidence of a causal connection between the harm and Respondent’s adverse employment action. A Respondent also may be held liable where Complainant proves that Respondent’s unlawful conduct aggravated a pre-existing condition, but only the additional harm should be considered in determining damages.
3. Factors to Consider
   Investigators should consider a number of factors when determining the amount of an award for non-pecuniary damages. Investigators should seek guidance from their supervisor and DAG. The factors to consider include:
   1. The severity of the distress. Serious physical manifestations, serious effects on relationships with spouse and family, or serious impact on social relationships justify higher damage awards for emotional distress or other forms of non-pecuniary damages.
   2. Degradation and humiliation. Generally, courts have held that when Respondent’s actions were inherently humiliating and degrading, somewhat more conclusory evidence of emotional distress or other non-pecuniary harm is acceptable to support an award for damages.
   3. Length of time out of work. Often, long periods of unemployment contribute to Complainant’s mental distress. Thus, higher amounts may be awarded in cases where individuals have been out of work for extended periods of time as a result of  Respondent’s adverse employment action and thus were unable to support themselves and their families.
   4. Comparison to other cases. Under HRS § 396-8(e), a key step in determining the amount of compensatory damages is a comparison with awards made in similar cases. Relevant cases can include those decided by the courts under the various OSHA whistleblower statutes and cases decided by the courts under section 11(c) and other discrimination or anti-retaliation provisions, such as the Title VII 42 U.S.C. § 2000e-3a. In section 11(c) cases, comparison with court decisions under this statute or other discrimination or anti-retaliation provisions, such as the Title VII anti-retaliation provision and 42 U.S.C. § 1983, is appropriate.

VI. Punitive Damages

HIOSH Law does not explicitly provide for punitive damages. HAR §12-57-1(d) stipulates that appropriate relief is limited to reinstatement or any other relief deemed appropriate by the Director.

VII. Attorney Fees

HIOSH Law does not authorize the awarding of attorney’s fees.

VIII. Interest

Interest on back pay will be computed by compounding daily the IRS interest rate for the underpayment of taxes. That underpayment rate can be determined for each quarter by visiting www.irs.gov and entering “federal short-term rate” in the search expression. The press releases for the interest rate for each quarter will appear. The relevant rate is generally the Federal short- term rate plus three percentage points. A definite amount should be computed for the interim (the time up to the date of the award), but the findings should state that interest at the IRS underpayment rate at 26 U.S.C §6621, compounded daily, also must be paid on back pay for the period after the award until the actual payment is made. Interest typically is not awarded on damages for emotional distress. However, compound interest may be awarded on compensatory damages of a pecuniary nature.

IX. Evidence of Damages

Investigators must collect and document evidence in the case file to support any calculation of damages. It is especially important to adequately support calculation of compensatory (including pain and suffering) damages. Types of evidence include bills, receipts, bank statements, credit card statements, or any other documentary evidence of damages. Witness and expert statements also may be appropriate in cases involving non-pecuniary compensatory damages. In addition to collecting evidence of damages, it is important to have a clear record of total damages calculated and itemized compensatory damages.

In addition to including this evidence in the case file, the DNO should include an explanation of the basis for awarding any non-pecuniary compensatory damages (such as damages for emotional distress, pain and suffering, loss of reputation, personal humiliation, and mental anguish).  As discussed above, the basis for such damages should be something beyond the basis for finding that Respondent violated the statute.

X. Non-Monetary Remedies

1. HIOSH may order non-monetary remedies, which may include:
   1. Expungement of warnings, reprimands, and derogatory references which may have been placed in Complainant’s personnel file as a result of the protected activity.
      
      In some instances, for example where Respondent has a legal obligation to maintain certain records, it may be appropriate to limit an expungement order. This may be done, for instance, by stating that the requirement to expunge records is fulfilled by maintaining information in a restricted manner such that physical and electronic access to it is limited, and by refraining from relying on the information in future personnel actions or referencing it to prospective employers or others.  
   2. Providing Complainant with at least a neutral reference for future employers
   3. Requiring Respondent to provide employee or manager training regarding the rights afforded by HIOSH Law. Training may be appropriate particularly where Respondent’s misconduct was especially egregious, the adverse action was based on a discriminatory personnel policy, or the facts reflect a pattern or practice of retaliation.
   4. Posting of an informational poster about HIOSH Law.
   5. Posting of a notice regarding the HIOSH order.
2. Other non-monetary remedies may be appropriate in particular circumstances. Investigators should contact their supervisor and the DAG for guidanceon these and other non-monetary remedies.

XI. Undocumented Workers

Undocumented workers are not entitled to reinstatement, front pay, or back pay. Cf. Hoffman Plastic Compound, Inc. v. NLRB, 535 U.S. 137 (2002) (under National Labor Relations Act, undocumented workers are not entitled to reinstatement or back pay). Other remedies, including compensatory damages, and conditional reinstatement³ may be awarded, as appropriate.

---

1. These are damages that are readily quantified– for example, job search expenses, medical bills that Complainant would not have incurred absent the unlawful retaliation, and health insurance premiums. ↩︎
2. These damages are not readily quantifiable and include, for example, pain and suffering, emotional distress, and loss of quality of life. ↩︎
3. With conditional reinstatement the worker is given a reasonable period of time to present or acquire work authorization and, if they are able to do so, the employer must offer reinstatement. ↩︎