Report Title:

Employment Practices; Protected Rights

 

Description:

Makes it an unlawful discriminatory practice, for any employer to include in an employment document as a condition of hiring, any provision interfering with the protected right of an employee to file a charge in an investigation or relinquish any right or protection.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

242

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to employment practices.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Findings and purpose. The purpose of this Act is to guarantee that employees and applicants for employment will not be required as a condition of employment to enter into compulsory agreements giving up legal rights and procedures provided under chapter 378, Hawaii Revised Statutes, including the right to a jury trial. The unequal bargaining positions of employees and applicants for employment relative to employers highlights the unfairness of mandatory arbitration agreements which the employee or applicant must sign as a condition of employment. Further, the purpose of this Act is to prevent employers from unilaterally imposing agreements, including but not limited to arbitration agreements, in which employees are required to waive rights, remedies, or privileges provided under chapters 368 and 378, Hawaii Revised Statutes. It is not the Legislature's intent that this Act preclude or prohibit an employer from bargaining with a willing employee to arbitrate a known dispute, so long as the agreement is supported by valuable consideration other than employment or continued employment. The Legislature recognizes the public policy interest in voluntary arbitration and settlement agreements. However, compulsory arbitration agreements limiting individual's rights under state employment discrimination law that are entered into prior to the existence of a dispute are against public policy. The Legislature does not intend to limit the arbitration or settlement of disputes by voluntary agreements entered into after a dispute has arisen.

SECTION 2. Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

"§378-2 Discriminatory practices made unlawful; offenses defined. It shall be an unlawful discriminatory practice:

(1) Because of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record:

(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination;

(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

(2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

(3) For any person whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

(4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

(5) For any employer to refuse to hire or employ or to bar or discharge from employment, any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

(6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; [or]

(7) For any employer or labor organization to refuse to hire or employ, or to bar or discharge from employment, or withhold pay, demote, or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast[.]; or

(8) For any employer to include in an employment document or agreement, mandated as a condition of hiring or continued employment, any provision interfering with the protected right of an employee or prospective employee to file a charge, provide information, or participate in any manner in an investigation, hearing, trial, or other proceeding, or relinquish any right, protection, or remedy, under chapter 368 or this chapter."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval; provided that employers shall have six months from the time of enactment to comply with the statutory change as it affects valid mandatory arbitration agreement in existence at the time of the enactment.

INTRODUCED BY:

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