§378-32  Unlawful suspension, discharge, ordiscrimination.  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 agarnishee in a cause where the employee is the debtor or because the employeehas filed a petition in proceedings for a wage earner plan under Chapter XIIIof the Bankruptcy Act; or

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

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

(4)  Because an employee tested positive for thepresence of drugs, alcohol, or the metabolites of drugs in a substance abuseon-site screening test conducted in accordance with section 329B-5.5; providedthat this provision shall not apply to an employee who fails or refuses toreport 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, §1and c 13, §1; gen ch 1985; am L 2007, c 179, §3]

 

Law Journals and Reviews

 

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

 

Case Notes

 

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

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

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

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

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

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