In recent years the U. S. Supreme Court has become increasingly conservative, primarily because most of the current sitting U. S. Supreme Court Justices were appointed by conservative republican presidents. This conservative court made decisions which greatly diminished the power of the Americans with Disabilities Act. It got to the point a few years ago that surveys found that employers were winning 94% of ADA cases. In 2008 Congress passed the Americans with Disabilities Act Amendment which significantly expanded the coverage of the ADA, reversing the U.S. Supreme Court’s conservative decisions.
Another example of Congress passing a law to reverse a conservative U. S. Supreme Court ruling is the “Lilly Ledbetter” case [PDF]. Ledbetter was an equal pay case. The case arose because, after Ms. Ledbetter had worked for an employer for many years, she found out she had been seriously underpaid – paid much less than males who did the exact same job she did. She sued, claiming she was discriminated against because of her gender. When Ms. Ledbetter’s case came to the U.S. Supreme Court, the Court, in a 5 – 4 ruling found that, even though Ms. Ledbetter was unaware that for years she had been illegally underpaid, that her claim for discriminatory pay had to be filed within 180 days after she first began to receive the unfair pay. This ruling left Ms. Ledbetter with no remedy for years of pay discrimination, even though she had not known about it. This ruling took the teeth out of laws requiring equal pay. Few females know within 180 days that their pay is not equal to the amount paid to males. The public out cry against this decision was instantaneous and strong. In 2009 Congress, passed the Lilly Ledbetter Fair Pay Act which was signed into law by President Obama. It gave a woman the right to go back longer than 180 days if she had suffered unequal pay. Congress can change the law when the U. S. Supreme Court makes rulings that unfairly restrict workers’ rights.
The Hawaii Supreme Court has a strong history of standing up for workers’ rights. On a number of occasions the Hawaii Supreme Court has rejected rulings by the U. S. Supreme Court which limited workers’ rights. Although most people think that the rulings by the “U. S. Supreme Court” are the “law of the land”, it doesn’t always work out that way. When a case presents an issue of state law, a state Supreme Court can reject rulings by the U. S. Supreme Court concerning the interpretation of a similar or even identical federal law. Hawaii, like many states has its own state law prohibiting employment discrimination, the Hawaii Fair Employment Practices Act (”FEPA”) HRS SS 378-2. The wording of this state law is similar or, in some instances identical to the federal law prohibiting employment discrimination, Title VII. The Hawaii Supreme Court has often ruled that Hawaii discrimination law, although it is the same in most respects as federal law, is to be interpreted more favorably to workers than the U.S. Supreme Court’s interpretation of federal law. I wrote an article for the Hawaii Bar Journal on this a few years ago called “Employment Law That Fits Our State The Unique Features And Interpretation Of Hawaii’s Fair Employment Practices Act” Hawaii Bar Journal, March 2005.
It may be necessary for the Hawaii Supreme Court to speak again because the U. S. Supreme Court on June 30, 2009, came out with an unexpected decision which very restrictively interpreted the Federal Age Discrimination in Employment Act (”ADEA”). This case, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2348 (2009), changed the burden of proof in age discrimination cases brought under the ADEA. To prove a violation of the ADEA the U.S. Supreme Court ruled the employee must prove that “but for” his age, the employee would not have been terminated. This contradicts Hawaii law as enunciated in a whistleblower case, Crosby v. Department of Budget and Finance, by the Hawaii Supreme Court in 1994. In Crosby the Hawaii Court ruled the employee need only prove that his protected conduct was a “substantial factor” in causing the adverse employment action, a lower burden of proof than the “but for” causation required by the Gross case. Hopefully workers in Hawaii will continue to enjoy broader protection from age discrimination under state law, than workers in other states now have under federal law.
As technology has grown, the ability of employers to monitor employee activities has grown. It is routine now that employers monitor web site activity by employees, and sometimes their phone calls. A more problematic case was recently decided in California. An employer had set up a secret hidden camera which watched employees in what they thought were private offices. The employees sued for an “invasion of privacy.” The court held that employees do have some right to privacy, and that placing hidden cameras in their offices would invade their right to privacy. However in this case the court held that the camera was not an invasion of privacy because the camera was specifically directed at a computer screen on which it had been reported pornography had been seen. Preventing pornography at this office was important because it was at a center for abused children. Further in this case there had been no actual taping of its employee’s activities by the camera, but rather the camera had been turned on for limited times only, and only after hours. At all times it was solely aimed at the computer screen, not the employees themselves.
In these limited circumstances the court held that an employer could, without invading an employee’s privacy, install a secret video camera in the work place. As cameras become cheaper and easier to install, these types of cases will increase. The courts will continue to have to address the inherent tension between an employee’s right to privacy and an employer’s right to monitor activities in the work place.
Laws protecting whistleblowers have become much stronger not only in Hawaii, but nationally in the last ten years. Hawaii did not have any legal protection for whistleblowers until 1982 when the Hawaii Supreme Court ruled in favor of a whistleblower in Hawaii’s first wrongful termination case, Parnar v. Americana Hotels, Inc., 65 Hawaii 370, 652 P.2d 625 (1982) — [PDF]
Until the Parnar case there was no such thing as wrongful termination in Hawaii. Soon after Parnar the Hawaii legislature passed Hawaii’s Whistleblower Protection Act (”HWPA”) — [PDF]. Passage of the HWPA prompted the Hawaii Supreme Court to find in Hawaii had strong public policy in favor of whistleblower protection, Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 842 P.2d 634, 142 L.R.R.M. (BNA) 2201, 128 Lab.Cas. P 57,702, 8 IER Cases 239, Hawaii,1992.
In 2002 the Hawaii legislature expanded the coverage of the HWPA so that employees who reported statutory violations to their employer were protected. Prior to 2002 the HWPA had only protected employees who had reported the violation go to an outside government agency. This trend toward expanded whistleblower protection has also been followed in federal legislation. For instance, the Sarbennes-Oxley Act, included significant whistleblower protections for people who came forward with complaints about publicly held companies. More recently the 2009 stimulus bill included strong protections for whistle blowers who complained about misuse of stimulus money.
In the past 20 years the Hawaii courts, the Hawaii legislature and Congress have all recognized that if you want employees to stop their employers from violating the law, it is necessary to have strong laws protecting a whistleblower’s employment. The public wants employees to object when their employer is violating the law. These laws protecting whistleblowers will continue to get stronger. Our economy is too big, and government budgets are too small, for regulatory agencies themselves to discover many of the illegal actions taken by private companies. The law therefore needs to give employees freedom in the work place to protest when illegal conduct occurs, without fear they will lose their job if they do so. Whistleblower protection laws help enforce all of our laws.
