§378-32  Unlawful suspension, discharge, or
discrimination.  It shall be unlawful for any employer to suspend,
discharge, or discriminate against any of the employer's employees:



(1)  Solely because the employer was summoned as a
garnishee in a cause where the employee is the debtor or because the employee
has filed a petition in proceedings for a wage earner plan under Chapter XIII
of the Bankruptcy Act; or



(2)  Solely because the employee has suffered a work
injury which arose out of and in the course of the employee's employment with
the employer and which is compensable under chapter 386 unless the employee is
no longer capable of performing the employee's work as a result of the work
injury and the employer has no other available work which the employee is
capable of performing.  Any employee who is discharged because of the work
injury shall be given first preference of reemployment by the employer in any
position which the employee is capable of performing and which becomes
available after the discharge and during the period thereafter until the
employee secures new employment.  This paragraph shall not apply to any
employer in whose employment there are less than three employees at the time of
the work injury or who is a party to a collective bargaining agreement which
prevents the continued employment or reemployment of the injured employee;



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



(4)  Because an employee tested positive for the
presence of drugs, alcohol, or the metabolites of drugs in a substance abuse
on-site screening test conducted in accordance with section 329B-5.5; provided
that this provision shall not apply to an employee who fails or refuses to
report to a laboratory for a substance abuse test pursuant to section 329B-5.5.
[L 1967, c 22, pt of §1; HRS §378-32; am L 1970, c 64, §2; am L 1981, c 10, §1
and c 13, §1; gen ch 1985; am L 2007, c 179, §3]



 



Law Journals and Reviews



 



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



 



Case Notes



 



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



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



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



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



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



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