Last month, the Hawai‘i Intermediate Court of Appeals (“ICA”) issued a Memorandum Opinion[1] in favor of an employer who refused to return an employee to her pre-work-injury position.

Employer Refuses to Reinstate Employee After Replacement Hired

Tammy Josue was placed on disability leave after suffering a work injury while employed at BCI Coca-Cola Bottling Company of Los Angeles (“BCI”).  After being on leave for more than ten months, BCI hired a permanent replacement for Josue’s pre-work-injury position because her prolonged absence was creating a hardship for the department and there was no indication when or if she would return to work.  About five months later, Josue was released to work and sought to return to her pre-work-injury position, which BCI refused because it had filled the position.  BCI offered other positions to Josue, but she declined them because she thought they were either downgrades or above her qualifications.

DLIR Finds Discrimination

Josue filed a complaint with the Department of Labor and Industrial Relations (“DLIR”), which determined that BCI discriminated against Josue in violation of Hawai‘i Revised Statutes § 378-32(a)(2) when it refused to return her back to her pre-work-injury position.  The DLIR determined that BCI could have filled the position with a replacement that was subject to Josue’s return rights. 

ICA Finds No Discrimination

The ICA, however, disagreed with the DLIR, holding that the law does not require an employer to either leave a vacated position open or hire only temporary employees.  According to the ICA, discrimination occurs when the work injury is the sole reason for the adverse employment action.  The Court determined that:  (1) at the time of hiring a replacement, Josue could not say when or if she would return to work; (2) Josue’s prolonged absence was creating a business hardship; and (3) such hardship was a valid justification as opposed to pretext.  The Court concluded that the work injury was not the sole reason for refusing to return Josue to her pre-work-injury position, and therefore, BCI’s refusal did not constitute unlawful discrimination.

[1] Because this Memorandum Opinion is not a published case, it has persuasive value, but is not considered binding precedent.