Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. There are numerous illegal reasons for termination. Typically such reasons fall into one of two large categories: illegal discrimination or illegal termination in violation of a public policy. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.

Hawaii is an employment-at-will state. Therefore, unless an employee is employed under a fixed term contract or an agreement that provides that termination shall only be for cause, employment may be terminated by either the employer or the employee for any reason or for no reason at all. The at-will rule does not apply if the termination violates a federal or state statute or local ordinance. In addition, the at-will rule will not apply if the termination violates public policy or where there are implied contracts created by employee handbooks or other documents or by verbal assurances and promises.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

Hawaii Occupational Safety and Health (HIOSH) helps businesses and employers ensure safe and healthful workplaces for employees. The foundation of HIOSH is the enforcement of the OSH Act of 1970. HIOSH offers compliance assistance and on-site consultations.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

The Hawaii workers' compensation law provides wage loss compensation and medical care to those employees who suffer a work-related injury. The workers' compensation law requires the employer to provide certain benefits without regard to the fault of the employee and prohibits an employee from filing civil action against the employer for work-related injuries or illnesses.

With a few exceptions, any employer having one or more employees, whether full-time, part-time, permanent or temporary, is required to provide workers' compensation coverage for its employees.

Benefits include the following:

• Medical benefits - all medical treatment which includes surgical and hospital services and supplies related to the injury
• Temporary total disability benefits - loss benefits paid as long as certified disabled from work by a treating physician
• Permanent partial disability benefits - payments due you when an injury results in a percentage loss of use of specified portions or functions of your body
• Permanent total disability benefits - payments due you if you cannot return to work because of the injury
• Disfigurement - payments due you for scars as a result of laceration or surgery
• Death payments due to a surviving spouse and dependent children in work-related death cases
• Vocational rehabilitation - if unable to return to usual occupation, you may receive career counseling, testing, training and job placement.

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Hawaii has a family medical leave law that places requirements on private employers with 100 or more employees. Employees may take a leave of absence from work if they or the employee's minor child are victims of domestic or sexual violence. Leave is intended for the employee to seek medical attention, obtain services from a victim services organization, obtain counseling, relocate or take legal action. The employees may take up to four weeks during any calendar year after they have worked for six consecutive months. The Hawaii family medical leave law includes leave to care for an employee's parent-in-law and grandparent or grandparent-in-law and an employee's reciprocal beneficiary.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

Hawaii Unemployment Insurance (UI) provides temporary financial assistance to qualified workers who are unemployed through no fault of their own and meet the legal requirements of the law. Benefits are based on your past employment and attachment to the labor market rather than on your financial situation. Unemployment benefits are intended for your use in paying for part of your living costs while you are seeking another job. The law is designed to provide benefits for a limited time while unemployed individuals seek work.

Employers pay all costs of unemployment insurance through a tax on their payrolls or on a reimbursable basis. As a worker, you do not pay any part of your wages to finance unemployment benefits or the unemployment insurance program. The UI program is administered by the Unemployment Insurance Division of the State Department of Labor & Industrial Relations.

Before you can receive unemployment compensation, the following must be true:

• You must have been paid wages for insured work in at least two quarters in the "base period," which is the first 4 of the last 5 completed calendar quarters at the time you file your claim
• You must have worked and been paid wages for insured work during the base period of at least 26 times your weekly benefit amount and
• You must have been paid wages during at least two quarters of your base period

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Related Web Links:

- Hawaii Department of Labor & Industrial Relations
- Employment Law for Employees message boards for more help