Hawaii Administrative Rules
Title 12 - DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
Subtitle 8 - HAWAII OCCUPATIONAL SAFETY AND HEALTH DIVISION
Part 1 - GENERAL, LEGAL AND ADMINISTRATIVE PROVISIONS
Chapter 57 - DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS UNDER CHAPTER 396, HAWAII REVISED STATUTES
Subchapter 3 - PROCEDURES
Section 12-57-11 - Arbitration or other agency proceedings

Universal Citation: HI Admin Rules 12-57-11

Current through August, 2024

(a) General.

(1) An employee who files a complaint under section 396-8(e), HRS, may concurrently pursue remedies under grievance arbitration proceedings provided by collective bargaining agreements. In addition, the complainant may concurrently resort to other agencies for relief, such as the National Labor Relations Board. Nothing in section 396-8(e), HRS, shall preclude an employee or representative of an employee from simultaneously pursuing a cause of action for injunctive relief or any other remedy provided by law. The director's jurisdiction to investigate complaints under section 396-8(e), HRS, and to determine whether discrimination has occurred is independent of the jurisdiction of other agencies or bodies.

(2) The director recognizes the national policy favoring voluntary resolution of disputes under procedures in collective bargaining agreements.

(3) Where a complainant is in fact pursuing remedies other than those provided by section 396-8(e), HRS, postponement of the director's determination and deferral to the results of such proceedings may be in order.

(b) Postponement of determination. Postponement of determination would be justified where the rights asserted in other proceedings are substantially the same as rights under section 396-8(e), HRS, and those proceedings are not likely to violate the rights guaranteed by section 396-8(e), HRS. The factual issues in such proceedings must be substantially the same as those raised by the section 396-8(e), HRS, complaint, and the forum hearing the matter must have the power to determine the ultimate issue of discrimination.

(c) Deferral to outcome of other proceedings. A determination to defer to the outcome of other proceedings initiated by a complainant must necessarily be made on a case-to-case basis after careful scrutiny of all available information. Before deferring to the results of another proceeding it must be clear that the proceeding dealt adequately with all factual issues, that the proceeding was fair, regular, and free of procedural infirmities, and that the outcome of the proceeding was not repugnant to the purpose and policy of section 396-8(e), HRS. In this regard, if such other action initiated by a complainant is dismissed without an adjudicatory hearing, such dismissal will not ordinarily be regarded as determinative of the section 396-8(e), HRS, complaint.

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