§396-11  Review.  (a)  Any citation,proposed penalty, or order of the director shall be final and conclusiveagainst the employer unless the employer files with the director a writtennotice of contest of the citation, the abatement period stated in the citation,the proposed penalty, or order within twenty days after receipt of thecitation, proposed penalty, or order.

(b)  The employer may petition the director formodification of the abatement requirements in a citation; provided the employershall file the petition no later than the close of the next business dayfollowing the date on which abatement is required, or under exceptionalcircumstances and for good cause shown, at a later date.  The petition formodification may be filed after the twenty-day period for contesting thecitation has expired if the initial abatement period stated in the citationexpires after the twenty-day period for filing a notice of contest has run.

(c)  The director shall issue an order eitheraffirming or modifying the abatement requirement.  The director may issue anorder modifying the abatement requirement upon a showing by the employer of agood faith effort to comply with the abatement requirements of a citation andthat abatement has not been completed because of factors beyond the employer'sreasonable control.

(d)  Any employee or representative ofemployees may file with the director a written notice of contest of the initialabatement period stated in a citation or order alleging that the period of timefixed for abatement is unreasonable; provided the notice is filed within twentydays after the citation or order has been posted.  Any employee orrepresentative of employees may also file a written notice of contest of anorder granting modification of the abatement period; provided the notice shallbe filed within ten days of the posting of the order.

(e)  Any employee or representative ofemployees may file a notice of contest of an order of the director denying acomplaint of discrimination filed by an employee pursuant to section 396-8(e);provided that in each case the notice is filed within twenty days after receiptof the order by the employee.

(f)  Any employee or representative ofemployees may file a notice of contest of an order granting an employer's applicationfor a variance under section 396-4(a)(3); provided the notice is filed withintwenty days after the posting of a final order or decision of the director.

(g)  Upon receipt, the director shall advisethe appeals board of any notice of contest.

(h)  The appeals board shall afford anopportunity for a de novo hearing on any notice of contest except where rulesrequire a prior formal hearing at the department level, the proceedings ofwhich are required to be transcribed, in which case review before the appealsboard shall be confined to the record only.

(i)  The appeals board may affirm, modify, orvacate the citation, the abatement requirement therein, or the proposed penaltyor order or continue the matter upon terms and conditions as may be deemednecessary, or remand the case to the director with instructions for furtherproceedings, or direct other relief as may be appropriate.

(j)  The affected employees or representativesof affected employees shall be provided an opportunity to participate asparties to hearings under this section.

(k)  The director shall submit annual reportsto the legislature on the number of contests filed pursuant to this section,the disposition of each, and information indicating whether the issue involvedan employee or employees of the department who failed to act within the scopeof their office, employment, or authority under this chapter. [L 1972, c 57, ptof §1; am L 1974, c 152, §6; am L 1975, c 50, §5; am L 1976, c 95, §9; am L1977, c 179, §4; gen ch 1985; am L 1992, c 94, §4]

 

Case Notes

 

  As transmission of facsimile copies was not specificallyallowed by any applicable statute or rule, including Hawaii administrative rule§12-51-19, faxing a notice of contest to the occupational safety and healthoffice did not satisfy the filing requirement under subsection (a).  120 H. 135(App.), 202 P.3d 596.

  Where company mailed an original notice of contest to thedirector that was postmarked within the twenty-day deadline under Hawaiiadministrative rule §12-51-19, company timely filed its notice of contest undersubsection (a) and the Hawaii labor relations board and the circuit court hadjurisdiction to decide the merits of the company's challenge to the safetyviolation citation.  120 H. 135 (App.), 202 P.3d 596.