Title 12, Chapter 24 (Unlawful Suspension or Discharge under Part III, Chapter 378, HRS)

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§12-24-1
HAWAII ADMINISTRATIVE RULES
TITLE 12 DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
CHAPTER 24
RELATING TO UNLAWFUL SUSPENSION OR DISCHARGE
UNDER PART III, CHAPTER 378, HAWAII REVISED STATUTES
§12-24-1 	Definitions
§12-24-2 	General provisions
§12-24-3 	Computation of time
§12-24-4 	Filing of complaint
§12-24-5 	Contents of complaint
§12-24-6 	Time for filing of complaint
§12-24-7 	Service of complaint
§12-24-8 	Amendment of complaint
§12-24-9 	Withdrawal of complaint
§12-24-10 	Dismissal of complaint
§12-24-11 	Answer
§12-24-12 	Prehearing conference
§12-24-13 	Hearings
§12-24-14 	Powers and duties of hearing officer
§12-24-15 	Disposition of recommended decision
§12-24-16 	Judicial review
Historical Note: 	Chapter 24 of title 12 is based
substantially upon "Regulation XXXII. Rules Governing
Practice and Procedure on Complaints and Hearings
Relating to Unlawful Suspension or 	Discharge Under
Part III, Chapter 378, Hawaii Revised Statutes" of the
Department of Labor and Industrial Relations. 	[Eff.
7/19/68; R Sep. 11, 1981]
§12-24-1 	Definitions. 	As used in this chapter:
"Complainant" means the individual who has filed a
complaint.
"Complaint" means a verified written statement filed with
the department pursuant to this chapter alleging an unlawful
suspension, discharge, or discrimination within the meaning of
the statute.
"Department" shall be as defined in section 378-31, Hawaii
Revised Statutes.
"Director" shall be as defined in section 378-31, Hawaii
Revised Statutes.
"Employee" shall be as defined in section 378-31, Hawaii
Revised Statutes.

§12-24-1
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"Employer" shall be as defined in section 378-31, Hawaii
Revised Statutes.
"Employment" means any service performed by an individual
for another person under any contract of hire, express or
implied, oral or written, whether lawfully or illegally entered
into."Hearing officer" means a person appointed by the director
to conduct hearings under this chapter.
"Party" or "parties" means the complainant or respondent, or
both."Respondent" means any employer against whom a complaint has
been filed alleging an unlawful suspension, discharge, or
discrimination within the meaning of the statute.
"Statute" means part III of chapter 378, Hawaii Revised
Statutes.
"Verified" means sworn to or affirmed before a notary
public, hearing officer, or other person authorized by the
director to administer oaths.
"Wages" shall be defined in section 378-31, Hawaii Revised
Statutes. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS
§378-38)
§12-24-2 	General provisions. 	(a) 	This chapter sets forth
the procedures for the administration and enforcement of the
statute.
(b) 	These rules shall be liberally construed to accomplish
the purposes of the statute. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS
§378-38) 	(Imp: 	HRS §378-38)
§12-24-3 	Computation of time. 	The time in which any act
provided by this chapter is to be done is computed by excluding
the first day and including the last, unless the last day is a
Saturday, Sunday, or holiday and then it is also excluded. 	As
used in this chapter, "holiday" includes any day designated as
such pursuant to section 8-1, Hawaii Revised Statutes. 	[Eff.
Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS §378-38)
§12-24-4 	Filing of complaint. 	(a) 	Any employee claiming
to be aggrieved by an alleged unlawful suspension, discharge, or
discrimination may file a complaint.
(b) 	Assistance in drafting and filing complaints shall be
available to complainants at the department’s wage standards
division located at 830 Punchbowl Street, Room 340, Honolulu, and
at the department's district offices on Hawaii, Maui, and Kauai.
(c) 	The complaint shall be in writing and, where feasible,
upon forms furnished by the department's wage standards division.
The complaint shall be signed and verified.
(d) 	The original complaint and two additional copies shall
be filed by personal delivery or by mail addressed to the
department's Wage Standards Division, 830 Punchbowl Street, Room
340, Honolulu, Hawaii 96813, or to any of the department's

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district offices located in the counties of Hawaii, Maui, and
Kauai. 	[Eff. Sep.11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS
§378-33)
§12-24-5 	Contents of complaint. 	Each complaint shall
contain the following:
(1) 	The full name, address, social security number, and
telephone number (if any) of the complainant;
(2) 	The full name, address, and telephone number of the
respondent;
(3) 	A plain and concise statement of the facts constituting
the alleged unlawful suspension, discharge, or
discrimination;
(4) 	The date on which the alleged unlawful suspension,
discharge, or discrimination occurred; and
(5) 	Other information that may be required by the
department.
Notwithstanding the provisions of this section, a complaint is
deemed filed if the department receives from an individual a
written statement sufficiently precise to identify the parties
and describing with reasonable accuracy the actions alleged to be
unlawful. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS
§378-33)
§12-24-6 	Time for filing complaint. 	The complaint shall be
filed within thirty days after the alleged act of unlawful
suspension, discharge, or discrimination. 	When an alleged act of
unlawful discharge under the statute occurs while the aggrieved
employee is still physically or mentally incapacitated and unable
to work, the complaint shall be filed within thirty days after
the date the aggrieved employee is able to return to work. 	[Eff.
Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS §378-33)
§12-24-7 	Service of complaint. 	Within ten days after a
complaint is filed with the department, the department shall
serve a copy of the complaint on the respondent by certified
mail, return receipt requested, or by personal delivery. 	[Eff.
Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS §378-34)
§12-24-8 	Amendment of complaint. 	(a) 	A complaint, or any
part thereof, may be amended by the complainant at any time prior
to the issuance of a notice of hearing and thereafter at the
discretion of the hearing officer.
(b) 	The amended complaint shall be deemed to have been
filed on the original filing date.
(c) 	The department shall promptly serve a copy of the
amended complaint on the respondent by certified mail, return
receipt requested, or by personal delivery. 	[Eff. Sep. 11, 1981]
(Auth: 	HRS §378-38) 	(Imp: 	HRS §§378-33, 378-34)

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§12-24-9 	Withdrawal of complaint. 	(a) 	A complaint, or any
part thereof, may be withdrawn only on written consent of the
hearing officer.
(b) 	When requesting withdrawal of a complaint, the
complainant shall:
(1) 	Submit the request in writing;
(2) 	Sign the request; and
(3) 	Have the request verified.
(c) 	The department shall notify the respondent of the
withdrawal. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp:
HRS §§378-33, 378-34)
§12-24-10 	Dismissal of complaint. 	(a) 	The hearing officer
shall dismiss the complaint:
(1) 	If it is determined that the department does not have
jurisdiction over the complaint; or
(2) 	If the complainant has failed to cooperate with the
department in regard to the complaint, and the
department has received no response from the
complainant within twenty days after the date of the
notice to the complainant of the department's intent to
dismiss the complaint; or
(3) 	If the complainant cannot be located, and the
complainant has not responded within twenty days to a
notice sent by the department to the complainant's last
known address; or
(4) 	If a settlement has been reached between the parties as
described in section 12-24-12, which is in writing and
specific in its terms.
(b) 	In the event of any dismissal of a complaint, the
complainant shall be notified by certified mail, return receipt
requested, of the reason or reasons for dismissal. 	The
respondent shall be notified in writing of the dismissal and of
the reasons therefor. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38)
(Imp: 	HRS §378-38)
§12-24-11 	Answer. 	(a) 	If the respondent files a written
verified answer, it shall be filed within twenty days from the
date of personal delivery or mailing of the complaint.
(b) 	The answer shall state the reasons or factors for the
suspension, discharge, or discrimination of the complainant, and
any matter which constitutes a defense to the complaint.
(c) 	The answer with two copies shall be filed by personal
delivery or by certified mail, return receipt requested,
addressed to the department’s Wage Standards Division, 830
Punchbowl Street, Room 340, Honolulu, Hawaii 96813, or to any of
the department's district offices in the counties of Hawaii,
Maui, or Kauai in which the complaint was filed. 	The respondent
shall also mail a copy by certified mail, return receipt
requested, to the complainant at the last known address.
(d) 	The time within which the answer shall be filed may be
extended at the discretion of the hearing officer.

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(e) 	The answer or any part thereof may be amended prior to
the hearing without the hearing officer's consent, and thereafter
at the discretion of the hearing officer. 	If a complaint has
been amended subsequent to the filing of the answer, the
respondent shall have an opportunity to amend the answer within
twenty days after being served the amended complaint. 	The
original of the amended answer shall be filed at the enforcement
division of the department, and one copy shall be mailed to the
complainant by certified mail, return receipt requested, at the
last known address. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38)
Imp: 	HRS §378-34)
§12-24-12 	Prehearing conference. 	(a) 	At any time after
the filing of a complaint, but prior to the hearing, the hearing
officer may hold a prehearing conference with the parties or
their representatives. 	Any matter not raised at the prehearing
conference shall not be allowed during the hearing. 	Matters to
be discussed at the prehearing conference may include but are not
limited to the following:
(1) 	A discussion of the issues raised by the complainant
and the explanations and defenses to be presented by
the respondent at the hearing;
(2) 	The necessity or desirability of amendments to the
pleadings;
(3) 	The possibility of obtaining stipulations which will
avoid unnecessary proof;
(4) 	The possibility of a settlement between the parties;
and
(5) 	Other matters that may aid in the disposition of the
complaint.
(b) 	If the complainant and the respondent agree to the
terms of a settlement at the prehearing conference, the
settlement shall be reduced to writing, signed by the parties,
and approved by the hearing officer. 	If approved, the case will
be closed without a finding on the merits of the complaint and a
copy of the final prehearing settlement shall be sent by
certified mail, return receipt requested, to the complainant and
the respondent.
(c) 	A prehearing settlement shall not affect the processing
of any other complaint, including, but not limited to, complaints
in which the allegations are like or related to the individual
allegations settled.
(d) 	If a settlement is achieved, no determination will be
made as to whether or not reasonable cause exists to believe that
the allegations of the complaint are true. 	[Eff. Sep. 11, 1981]
(Auth: 	HRS §378-38) 	(Imp: 	HRS §378-38)
§12-24-13 	Hearings. 	(a) 	All hearings required by this
chapter shall be held in accordance with chapter 91, Hawaii
Revised Statutes, and the rules of this department.
(b) 	The complainant shall be present at the hearing, with
or without counsel. 	The complainant shall be allowed to call,

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examine, and cross-examine witnesses, and introduce papers,
documents, or other evidence, in person or by counsel.
(c) 	The respondent or a representative shall be present at
the hearing, with or without counsel, and shall be allowed, in
person or by counsel, to call, examine, and cross-examine
witnesses and introduce papers, documents, or other evidence.
(d) 	At the discretion of the hearing officer, any other
person may be allowed to participate, in person or by counsel,
for the purposes and to the extent that the hearing officer shall
determine.
(e) 	Witnesses at all hearings shall be examined orally,
under oath or affirmation, and a record of the proceedings shall
be made by the hearing officer. 	The hearing officer or a person
designated by the hearing officer may administer oaths or
affirmations at the hearing.
(f) 	The hearing officer may continue a hearing from day to
day or adjourn it to a later day or to a different place by
announcement thereof at the hearing or by appropriate notice to
all parties. 	The hearing officer may also continue a hearing
upon request of any party. 	At the discretion of the hearing
officer, a hearing may be reopened.
(g) 	The absence without notice of either the complainant or
the respondent at the hearing shall be considered a default as to
that party. 	If the complainant is absent, the complaint shall be
promptly dismissed. 	If the respondent or respondent's
representative is absent, the hearing officer shall base the
decision on the evidence presented by the complainant at the
hearing. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS
§§378-34, 378-38)
§12-24-14 	Powers and duties of hearing officer. 	(a) 	The
hearing officer shall have full power and authority to:
(1) 	Control the procedures of the hearing;
(2) 	Admit or exclude testimony or other evidence;
(3) 	Rule upon all motions and objections;
(4) 	Call and examine witnesses;
(5) 	Direct the production of papers or other matter present
in the hearing room; and
(6) 	Take other actions that are necessary and proper for
the conduct of the hearing.
(b) 	The hearing officer shall submit a recommended decision
to the director which shall include findings of fact and
conclusions of law. 	A copy of the hearing officer's recommended
decision shall be served by personal delivery or by certified
mail, return receipt requested, upon each party.
(c) 	The hearing officer may issue subpoenas either at will
or upon written request of a party to the proceeding whenever
necessary to compel the attendance of witnesses and the
introduction of books, records, correspondence, documents,
papers, or any other evidence which relates to any matter in
question before the hearing officer. 	Where a subpoena is issued
at the instance of a party to the proceeding other than the

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hearing officer, the cost of service and witness and mileage fees
shall be borne by the party at whose request the subpoena is
issued. 	Witness and mileage fees shall be the same as fees paid
witnesses in the circuit court.
(d) 	The hearing officer shall, whenever necessary or
required during the hearing and on terms and conditions as the
hearing officer may determine, take or cause to be taken
deposition of witnesses residing within or without the State of
Hawaii, in the manner prescribed by law for deposition in civil
actions. 	A request by a party other than the hearing officer for
deposition of witnesses shall be in writing. 	The cost of any
deposition shall be borne by the party at whose request the
deposition was taken. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38)
(Imp: 	HRS §§378-34, 378-38)
§12-24-15 	Disposition of recommended decision. 	(a) 	Any
party may within twenty days after receipt of a copy of the
hearing officer's decision file with the director exceptions to
the decision or any part thereof and request a review by the
director. 	The party shall specify for each exception the
portions of the record and the authorities relied on to sustain
each point. 	Any exception not specifying the portions of the
record or the authorities relied upon shall be dismissed by the
director. 	The exceptions and request for review with two copies
shall be filed by personal delivery or by certified mail, return
receipt requested, addressed to the department's Wage Standards
Division, 830 Punchbowl Street, Room 340, Honolulu, Hawaii 96813,
or to the department's district office in the county where the
original complaint was filed. 	In addition, a copy of the
exception and request for review shall be served by the party
making the exception upon each of the other parties who were
served with a copy of the hearing officer's recommended decision.
(b) 	If no exceptions and requests for review are filed
within the time specified, the recommended decision of the
hearing officer shall become final upon approval of the director,
unless the director orders a review.
(c) 	Upon filing of exceptions by a party adversely affected
by the recommended decision, the director may consider the whole
record or portions thereof as cited by the party and may grant
the parties an opportunity to present argument. 	The director
shall then make a final decision stating the reasons or basis
therefor and enter an appropriate order.
(d) 	The hearing officer's findings of fact shall not be set
aside by the director unless clearly contrary to the weight of
evidence. 	[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS
§§91-11, 91-12, 378-38)
§12-24-16 	Judicial review. 	Any person aggrieved by the
final decision of the director shall be entitled to judicial
review as provided by section 91-14, Hawaii Revised Statutes.
[Eff. Sep. 11, 1981] 	(Auth: 	HRS §378-38) 	(Imp: 	HRS §378-36)