Amicus Brief: Employer Can Fill Injured Worker's Position If There Are Legitimate Business Reasons For Doing So

by Robert Thomas, Inverse Condemnation, March 8, 2019

A bit off of our usual topics, but we thought we would post this anyhow to show we're not one-trick ponies: here's the amicus brief we filed yesterday in the Hawaii Supreme Court in an employment law case the court is considering. Yes, we do appeals on employment law, too. 

The issue is whether under Hawaii law, an employer is required to hold open the position of an injured worker indefinitely, or can permanently fill that position with another worker when it has legitimate business reasons for doing so. As our brief argues:

The question presented is whether in Haw. Rev. Stat. § 378-32(a)(2), the legislature intended to require employers to hold open a long-absent injured worker’s position indefinitely, or whether by prohibiting adverse actions by the employer “solely because the employee has suffered a work injury,” it meant to preserve employers’ flexibility to hire a replacement as may be needed to address pressing business demands.

The ICA [Intermediate Court of Appeals] correctly understood that the plain language of the statute preserves the prerogative of an employer to make necessary business decisions about staffing needs, so long as the employer does not “suspend, discharge, or discriminate” an employee only because the employee is injured. Id. (quoted in ICA Op. at  6). The circuit court concluded—and the ICA affirmed—that BCI did not discharge Petitioner solely because of her injury. BCI needed to fill the position with someone who could handle its continued workload because Petitioner’s long absence was causing strain on two other employees who had been forced to work longer hours to cover these duties; consequently the position was no longer open when Petitioner finally informed BCI she was ready to work.

In short, legitimate business concerns caused BCI to fill the spot permanently, and thus, Petitioner’s injury was not the sole reason for discharge. Certainly, but for Petitioner’s injury, there was no need to fill her position. See Cert. App. at 7 (“Stated otherwise, but for that injury, there was no need to fill her position.”). However, “but for” causation is not the standard established by the statute’s use of the term “solely.” That statutory term means that an employee’s injury may be part of the reason for the employer’s actions, but it cannot be the only reason. Here, it was not.

The ICA’s reading of the plain statutory text makes sense because it protects injured employees from adverse actions only on account of their injury, but also appreciates the practical realities that employers face when an essential position is left vacant during a prolonged and indefinite absence.

The interpretation advocated by Petitioner effectively deletes the term “solely” from the statute, and would read it as conferring an entitlement for permanent employment, regardless of how greatly the position’s mounting workload may strain the employer. This would create extreme practical difficulties for small businesses with limited resources.

Our colleagues Luke Wake (NFIB) and Loren Seehase (Damon Key) did the heavy lifting on this one.

If this kind of thing interests you, check it out. If not, we will return to our regularly scheduled takings programming shortly. 

PDF: Brief Amicus Curiae of NFIB Small Business Legal Center, Josue v. Coca-Cola Bottling Co. of Los Angeles, No...