Should I Pursue A Retaliation Claim ?

Mr. Klingshirn gave a great basic answer. And Hawaii also has it's own agency and laws similar to EEOC (except in some cases Hawaii discrimination law is stronger than EEOC's). There is also a Hawaii Whistleblower statute.

Do get a lawyer. I realize there are not as many employment lawyer choices on Maui, but all federal court cases are done in Honolulu anyway. And the several lawyers in Honolulu who do this type of work can easily get to the Maui court if the claims are pursued in State court. Did you call the Hawaii Bar Association for referrals?(admittedly their listing in specific fields can be lacking).

There is a very good list of employment lawyers and their specialty fields listed on the Hawaii NELA (National Employment Lawyers Association) webpage which you can locate and link to from my own webpage (see below) or directly at www.flex.com/~hsc/nela/member.html .
Or call my office and we can give you some names and phone numbers. (We only represent Federal employees in these kinds of cases._

Thank you,
Elbridge W. Smith
SMITH HIMMELMANNAttorneys at Law, A Law Corp.745 Fort Street, Suite 311
Honolulu, Hawaii 96813
phone: 808.523.5050
fax: 808.538.1382
www.shlaw.us
Specializing in Representing Federal Employees

posted by Elbridge Smith  |  Jul 24, 2013 10:44 AM [EST]

Aloha.

I am an Ohio attorney, so I cannot speak to employment laws created by the state of Hawaii. I can, however, speak to retaliation claims, generally, and to your rights under federal law.

To prove a retaliation claim, you must prove:

1. You engaged in protected conduct;
2. You had an adverse employment action (e.g., were demoted, hours cut or fired) and
3. The adverse employment action is causally connected to your protected conduct.

Under federal anti-discrimination law, "causally connected" means that, but for engaging in the protected conduct, you would not have suffered the adverse action.

In your case, you suffered several adverse employment actions. I will assume for purposes of this question that you can show they were causally connected to your complaints about OSHA conditions, overtime, child labor, and discrimination and unequal pay. The issue is whether your complaints about those issues were protected and, if so, what you need to do to pursue a remedy.

If you have a good faith belief that your employer violated the rights of you or others to safety, overtime pay, child labor or equal pay, then you probably engaged in protected conduct. If you believe that your employer discriminated based on prohibited classifications, you probably also engaged in protected conduct. The reason is that each of the laws that created rights to safe work conditions, overtime pay, restrictions on child labor, freedom from discrimination and equal pay contain an additional right to be free from retaliation for asserting those rights or, in some cases, for opposing employer conduct that violates those rights.

The important point for your question, though, is what to do to enforce those rights. This is important because the retaliation rights under the various employment laws (FLSA for Overtime, Title VII of 1964 Civil Rights for discrimination, etc.), each have their own anti-retaliation provision, and they are all different to some degree or other. They also have different time limits and procedures for asserting them.

Under Title VII (discrimination), you must go to the EEOC within 180 (or in some states, 300 days) and file a charge of discrimination. A safety complaint under OSHA has to be filed with OSHA within, I believe, 30 days. And a complaint for unpaid overtime has to be filed with the Department of Labor within 2 years.

In some cases, you can go directly to federal court without filing with an administrative agency, as with unpaid overtime. However, with most federal rights, you need to file with the appropriate agency (EEOC, OSHA) or lose your right to be free from retaliation.

Given the complexity of this area, I highly recommend that you find an experienced employment lawyer who can, at a minimum, provide a road map based on your specific claims. I believe that Hawaii has important, additional rights, so obviously your lawyer should be licensed to practice law there.

posted by Neil Klingshirn  |  Jul 24, 2013 06:59 AM [EST]  [ Best Answer - selected by asker ]