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What state-specific laws govern the employment relationship?
- Labor law—Hawaii Employment Relations Act (HRS Chapter 377).
- Equal employment opportunity—Discriminatory Practices Law (HRS Chapter 378, Part I), Hawaii Civil Rights Act (HRS Chapter 368), and Unlawful Suspension or Discharge Law (HRS Chapter 378, Part III).
- Wage and hour law—Wage and Hour Law (HRS Chapter 387) and Payment of Wages Law (HRS Chapter 388).
- Government contractors—wages and hours of employees on public works (HRS Chapter 104).
- Employee benefits and leaves of absence— Employment Security Law (HRS Chapter 383), Workers’ Compensation Law (HRS Chapter 386), temporary disability insurance (HRS Chapter 392), Prepaid Healthcare Act (HRS Chapter 393), Family Leave Law (HRS Chapter 398), Reciprocal Beneficiaries Act (HRS §§ 572-C1 to 572-C7), civil unions (HRS §572B), and victims leave (HRS Chapter 378, Part VI).
- Safety and health—Substance Abuse Testing Act (HRS Chapter 329B), Occupational Safety and Health (HRS Chapter 396), employer responsibilities for commercial drivers (HRS § 286-234), and smoking (HRS Chapter 328J).
- Economics and business transactions—Dislocated Workers Act (HRS Chapter 394B).
- Workplace privacy—employers’ job reference immunity (HRS Chapter 663-1.95), social security numbers (HRS Chapter 487J), and protected personal information (HRS Chapter 487R).
- Proprietary rights—Trade Secrets Act (HRS Chapter 482B) and Restraint of Trade (Non-compete Agreements) (HRS §480-4).
There are also many administrative regulations that govern the employment relationship. To find the above statutes, as well as the state's administrative regulations, go to www.ehawaii.gov.
Who do these cover, including categories of workers?
Hawaii does not exempt small businesses from regulations. As long as a business employs one employee, it is required to comply with most of the state's employment laws.
Are there state-specific rules regarding employee/contractor misclassification?
Yes. In Hawaii, the legal presumption is that every worker is an employee. If a business wants to claim that a particular worker is an independent contractor, then the business bears the burden of proving that the individual is actually in business for himself or herself. Each statute has its own test for independent contractor status. However, the seminal test is contained in HRS §383-6 and Hawaii Administrative Rules §12-5-2.
Must an employment contract be in writing?
No—a formal written employment contract is not required. Hawaii courts will treat "promises of specific treatment in specific circumstances" that an employee reasonably relies on as contractual promises and enforce them as such (Kinoshita v. Canadian Pacific Airlines, 724 P.2d 110 (1986)).
Are any terms implied into employment contracts?
No. Hawaii is an at-will state. Consequently, if no promises are made to an employee and the employment is for an indefinite term, the employment relationship will be considered at will.
Are mandatory arbitration agreements enforceable?
It is unlikely that mandatory arbitration agreements will be enforced. While there are no reported decisions directly on point, the Hawaii Civil Rights Commission has expressed concerns about mandatory arbitration agreements and several statutes include provisions specifying that employers cannot require employees to "contract away" their rights. Nevertheless, most litigants prefer mediation and arbitration because they are quicker and more cost effective.
How can employers make changes to existing employment agreements?
As with business contracts, employers may approach employees with proposals for amendments that, once agreed, should be memorialized in a written amendment.
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