Hawaii Employment Law Basics: Protections of Victims Leave Act Triggered More Often in a Tough Economy

It is hard to argue with studies concluding that there is a correlation between the increase in domestic violence being reported and the weak economy.  It is critical under these circumstances that Hawaii employers understand that the Hawaii Victims Leave Act requires all Hawaii employers to provide eligible employees with at least 5 days of unpaid victims leave.  All employees who have worked for at least 6 consecutive months for the employer are eligible for victims leave.

Generally, employers must provide employees with victims leave for a reasonable time period up to a maximum number of days per calendar year if the employee or the employee’s minor child is a victim of domestic or sexual violence.  Employers with 50 or more employees must provide up to 30 days of unpaid victims leave per calendar year; employers with 49 or less employees must provide up to 5 days of victims leave per calendar year.  Victims leave is unpaid, but employers may require the employee to use paid leave.

Protected Forms of Victims Leave:

An employee may use victims leave to:

• Seek medical attention for the employee or the employee’s minor child to recover from the physical or psychological injury or disability caused by domestic or sexual violence;
• Obtain services from a victim services organization;
• Obtain psychological or other counseling;
• Temporarily or permanently relocate; or
• Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence, or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee’s minor child or to enhance the safety of those who associate or work with the employee.

Notice:

An employee seeking victims leave must provide the employer with “reasonable notice” of the employee’s intention to take leave.  However, advance notice is not required where such notice is not “practicable” because of imminent danger to the employee or the employee’s minor child.

Certification:

Certification is required under the law.  The method of certification depends on whether the leave required is less or more than 5 days.  If the victims leave extends less than 5 calendar days, the employee can certify by providing signed statement within a reasonable period attesting to the fact that the employee or the employee’s minor child is a victim of domestic or sexual violence and the leave is for one of the enumerated purposes.  Thus, the employee is permitted to “self-certify.”

If the leave extends 5 days or more, the certification must be provided by one of the following methods:

• A signed statement from a victim services organization, from the employee’s attorney or advocate, from a minor child’s attorney or advocate, or a medical or other professional from whom the employee or the employee’s child has sought assistance related to the domestic or sexual violence; or
• A police or court record related to the domestic or sexual violence.

Return to Work:

Upon the employee’s return to work, s/he shall be returned to his/her original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges.

Penalties:

Any employee denied leave by an employer in willful violation of the law may file a civil action against the employer to recover back pay and seek reinstatement and other forms of equitable relief.  Costs and reasonable attorneys’ fees are recoverable.