Hawaii Employment Law Decisions August 28, 2016 to September 3, 2017 – Jeffrey S. Harris

District court did not err by certifying class of domestic farm workers who claimed farm employer violated Agricultural Workers Protection Act by failing to inform them of the availability of agricultural work performed by temporary foreign workers under the federal H-2A visa program, and failed to pay the domestic workers the same wage as foreign workers.  District court did not abuse discretion finding common questions and common issues predominating regarding whether there was a duty to disclose information pertaining to H-2A, regardless of whether some class members were not injured by the non-disclosure.  District court did not abuse its discretion finding common and typical issues regarding the equal pay claim, even though the domestic farm workers used aggregate underpayment method of proof potentially showing the employer underpaid some, possibly all class members and any recovery would need to be partitioned, and no factual issues would preoccupy the class representatives or threaten to become the focus of the litigation.  Ruiz v. Mercer Canyons, Inc., 2016 U.S. App. LEXIS 16106 (9th Cir. Aug. 31, 2016).

District court denied motion to dismiss claim party to communication violated federal wiretap statute, because union alleged former employee intercepted communications for criminal reasons and employee did not challenge factual basis for allegation.  Hawaii Regional Council of Carpenters v. Yoshimura, 2016 U.S. Dist. LEXIS 123458 (D. Haw. Sept. 12, 2016).

District court denied airline's motion to vacate arbitration award requiring airline to permit employees under an equal employment opportunity investigation and their union to review evidence gathered as part of the investigation, because EEOC guidelines requiring employer to keep sexual harassment complaints confidential to the extent possible established no explicit, well-defined and dominant public policy militating against the award.  Hawaiian Airlines, Inc. v, Association of Flight Attendances-CWA, 2016 U.S. Dist. LEXIS 119711 (D. Haw. Aug. 31, 2016).

Note: We analyze cases to learn rules the courts will follow or disappoint us if they don't. Rules that the courts follow allow us to behave and provide explanations they accept. But competent advocates may limit the rules to the facts of the case where they are discussed, or expand rules by showing that differences in other cases are irrelevant.