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Lawsuits and Settlements
How to Respond to an EEOC Charge

For the first time ever, the Equal Employment Opportunity Commission (“EEOC”) has issued a memorandum on “how Respondents can draft effective position statements.”


Oftentimes, employers who receive a charge of discrimination from the EEOC will hire an attorney to draft a position statement in response to the charge.  The attorney will normally work with the employer to gather a set of facts to be used in response to the allegations contained in the charge of discrimination, and then prepare a position statement that summarizes those facts (oftentimes refuting the allegations contained in the charge) and discusses those facts in light of the law.  The position statement should be carefully drafted to ensure that all allegations raised in a charge of discrimination are addressed, and that the employer provides a fact-based response instead of one that simply raises conclusive statements such as “we didn’t discriminate.”

Regardless of whether you hire an attorney or prepare the position statement yourself, it is strongly advised to review the EEOC’s memorandum on what constitutes an effective position statement.  The EEOC’s memorandum addresses the following issues:

  • The importance of fact-based position statements
  • Examples of supporting documentary evidence
  • Segregating confidential information
  • Providing a response by the due date
  • Requesting an extension
  • Uploading the Position Statement into the EEOC’s portal

The EEOC’s memorandum can be viewed here:  EEOC on Effective Position Statements

2014 Legislative Session: Running Updates

Each year, the Hawaii Employers Council provides its members with updates on labor and employment law bills that are being addressed by the legislature. One of those documents, the Legislative Digest, is actually currently available to the general public, and can be accessed here:  HEC Legislative Updates.

Bills that are still alive as of the Second Lateral deadline address (1) the minimum wage, (2) payment of wages via direct deposit and pay cards, and (3) workers’ compensation drugs, fee schedule and settlements.

For the 2014 Legislative Session, the Legislative Digest is available for the following key deadlines:

  • Bills Introduced (available)
  • First Lateral (available)
  • First Crossover (available)
  • Second Lateral (available)
  • Second Crossover (available)
  • Sine Die  (available)
  • Veto Deadline (available)

As more deadlines pass, I will update this blog entry to indicate when the most recent Legislative Digest is available.

Other updates, such as articles providing a detailed explanation of several of the significant measures and talking points on certain bills, however, are available only to HEC members.

It’s Official: Federal Judge Strikes Down Entire “Sick Leave Law”

Earlier this year, I reported that U.S. District Court Judge Susan Oki Mollway issued an order ruling that Hawaii’s sick leave discrimination law was unlawful.  In her initial order, Judge Mollway did not decide whether she would strike down the entire statute, or just invalidate part of the statute.  Rather, she set a hearing for last month to hear arguments from both parties to the lawsuit (although she indicated an inclination to strike down the entire law).

On May 1, 2013, Judge Mollway issued her decision, and ruled that the State of Hawaii is “permanently enjoined” from enforcing any part of the statute in question.  In other words, the entire statute was invalidated.

Writing about the sick leave law reminds me of  a Dilbert strip I read a loooooooooong ways back:

You can read a copy of her order here:  Permanent Injunction on Sick Leave Law.

Court Addresses “Exclusive Remedy” Provision of Workers’ Compensation Law

In Yang v. Abercrombie & Fitch Stores, et. al. (April 30, 2012), the Hawaii Intermediate Court of Appeals (“ICA”) recently held that Section 386-5 of the Hawaii Revised Statutes (“HRS”) barred a plaintiff’s claims against her employer for personal injuries (i.e. stress) she allegedly suffered arising out of and in the course of her employment, which were allegedly caused by the willful acts of her co-employees acting in the course and scope of their employment.

In that case, the plaintiff – a former Abercrombie and Fitch (“A&F”) employee – was interrogated at work by security personnel about money that was missing from a wallet that a patron had lost in the store.  After the interrogation, the plaintiff was escorted out of the AF&F store. She subsequently filed a claim for, and received, workers’ compensation benefits due to “stress” she suffered as a result of the interrogation and related incidents.

The plaintiff also filed a lawsuit against A&F and the security personnel, alleging claims such as false imprisonment, defamation and invasion of privacy, among others.  A&F sought to dismiss the suit on the grounds that workers’ compensation benefits were the plaintiff’s exclusive remedy for workplace stress.  The circuit court denied A&F’s motion, and A&F filed an appeal.

On appeal, the ICA reversed the decision of the circuit court, and ruled that HRS § 386-5 barred the plaintiff’s lawsuit with regards to injuries she suffered (a) because of her employment (b) that were caused by the willful acts of the security personnel acting in the court and scope of their employment.  The ICA also made sure to clarify, however, that HRS § 386-5 did not bar all intentional torts.  Rather, the torts must be committed “because of the employee’s employment.”

Finally, the ICA noted that that HRS § 386-5 did not bar the plaintiff’s claims against the security personnel individually.

While the Yang decision did not create any new law, it certainly clarified that workers’ compensation benefits generally serve as the exclusive remedy for injuries sustained in the course of employment.  The ICA’s decision also clarified that intentional torts that are committed because of on an individual’s employment are covered by workers’ compensation (such as in the Yang instance), whereas intentional torts that are not committed because of an individual’s employment are not.

You can read a copy of the court’s decision here.  You can also view the exclusive remedy provision under HRS § 386-5 here.

U.S. Supreme Court To Hear “Cat’s Paw” Case

The United States Supreme Court recently accepted certiorari in Staub v. Proctor Hospital (7th Cir. 2009), a case dealing with the “cat’s paw” theory of employer liability.  The “cat’s paw” theory provides that the discriminatory animus of a non-decisionmaker can be imputed to the decisionmaker, if the non-decisionmaker (a) has singular influence over the decisionmaker, and (b) uses that influence to cause an adverse employment action.

In Staub, the Plaintiff sued his former employer, alleging his was fired in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  He prevailed at trial by using the “cat’s paw” theory of liability.

On appeal to the Seventh Circuit, the issue was whether the trial court could allow the Plaintiff to present evidence of nondecisionmaker animus – in support of his  “cat’s paw” theory of liability – without first determining whether a reasonable jury could find “singular influence” on the evidence to be presented.  The appellate court ruled that the trial court failed to make this prior determination, and therefore erred by admitting the evidence of nondecision maker animus.

The Supreme Court has now accepted certiorari in this case and should be hearing the matter in the near future.