§378-35 Findings and order. If the
department of labor and industrial relations finds, after a hearing, that an
employer has unlawfully suspended, discharged or discriminated against an
employee in violation of section 378-32, the department may order the
reinstatement, or reinstatement to the prior position, as the case may be, of
the employee with or without backpay or may order the payment of backpay
without any such reinstatement. [L 1967, c 22, pt of §2; HRS §378-35; am L
1981, c 10, §3]
Case Notes
Appellate court affirmed district court's denial of
defendant's motion for summary judgment where defendant, a food distributor,
allegedly forced the resignation of plaintiff, a delivery truck driver, due to
a shoulder injury; finding that there was no indication that a workplace injury
could not serve as the disability in an Americans with Disability Act claim.
In other words, just because an injury happened at work does not mean that a
plaintiff can only assert a claim under this section or §378-32. 908 F.3d 428
(2018).
Where public policy against terminating employee solely
because employee suffered a compensable work injury is evidenced in §378-32 and
remedy is available under this section, judicially created claim of wrongful
discharge in violation of public policy could not be maintained. 87 H. 57
(App.), 951 P.2d 507 (1998).
Discussed: 945 F. Supp. 2d 1133 (2013).
Notes of Decisions
Nunies v. HIE Holdings, Inc., 908 F.3d 428 (9th Cir. 2018).
· cites it 6× “HIE moved for summary judgment on all claims, arguing that: (1) Nunies' suit was barred under HRS § 378-35 2 ; and (2) Nunies could not establish a prima facie case of disability discrimination because he was not "disabled," not a "qualified individual," and did not suffer an…”
Flores v. United Air Lines, Inc., 757 P.2d 641 (Haw. 1988).
· cites it 8× “Inasmuch as the department was authorized under part III of HRS chapter 378 to “order the reinstatement of [an] employee with or without back pay[,]” HRS § 378-35 (1968),7 an intended conse *11 quence of the transfer of responsibility was that the injured employee “gain[ed],…”
Takaki v. Allied Mach. Corp., 951 P.2d 507 (Haw. App. 1998).
· cites it 6× “We affirm, therefore, the April 6, 1995 order of the first circuit court (the court) granting summary judgment against Takaki on his Pamar claim in count three of his first amended complaint (the amended complaint).”
Puchert v. Agsalud, 677 P.2d 449 (Haw. 1984).
· cites it 2× “We also note that the department sits in an adjudicatory capacity in hearing complaints of unlawful discharge, HRS § 378-35, and therefore, it must remain neutral.”
Cambron v. Starwood Vacation Ownership, Inc., 945 F. Supp. 2d 1133 (D. Haw. 2013).
· cites it 4× “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…”
Herman Nunies v. Hie Holdings, Inc., 904 F.3d 837 (9th Cir. 2018).
· cites it 5× “The panel affirmed the district court’s ruling that Haw. Rev. Stat. § 378-35 , which provides an exclusive remedy for certain claims arising from a workplace injury, did not bar the ADA claims.”
Batacan v. Reliant Pharm., 324 F. Supp. 2d 1144 (D. Haw. 2004).
· cites it 2× “§ 378-32 and a remedy was provided in Haw.Rev. Stat. § 378-35); Lapinad v. Pac.”
Herman Nunies v. Hie Holdings, Inc. (9th Cir. 2018).
· cites it 5× “The panel affirmed the district court’s ruling that Haw. Rev. Stat. § 378-35 , which provides an exclusive remedy for certain claims arising from a workplace injury, did not bar the ADA claims.”
Wang v. State, 154 Haw. 257 (Haw. App. 2024).
· cites it 2× “In applying a DLIR practice in calculating backpay, the [hearings officer] recommended an award of backpay to [Employee] based on an erroneous interpretation of "backpay" under HRS §378-35 [(2015)] that is legally incorrect as a matter of law and should be revised to award…”
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