(a) Any covered employer who fails to enroll a covered employee into the program in accordance with section 389-5(e)(1) without equitable justification shall be liable:

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Terms Used In Hawaii Revised Statutes 389-14

  • Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • month: means a calendar month; and the word "year" a calendar year. See Hawaii Revised Statutes 1-20
(1) To the covered employee, in an amount equal to the contribution amount that would have been made by the employee into the program and interest at a rate of six per cent per year on the contribution amount, beginning from the date the contribution would have been made into the account; provided that the sum of the contribution amount and interest thereto shall be transmitted by the covered employer to the program to be paid into the covered employee’s IRA; and
(2) A penalty of:

(A) $25 for each month the covered employee was not enrolled in the program; and
(B) $50 for each month the covered employee continues to be unenrolled in the program after the date on which a penalty has been assessed with respect to the covered employee who had elected to participate in the program.
(b) Any covered employer who fails to timely transmit a covered employee’s payroll deduction contribution to the program pursuant to section 389-5(e)(2) shall be subject to the same sanctions imposed on an employer for misappropriation of employee wage withholdings and the penalties pursuant to chapter 388.
(c) No penalty under subsections (a)(2) and (b) shall be imposed on a covered employer if the covered employer can establish by a preponderance of the evidence that the covered employer:

(1) Exercised reasonable diligence to meet the requirements of section 389-5(e);
(2) Did not know or reasonably should not have known that the failure existed; and
(3) Cures the failure within ninety days of the day the covered employer was given actual notice of the failure or should have known that the failure existed, whichever is earlier.
(d) Any covered employer who otherwise violates or fails to comply with any provision of this chapter or rules adopted pursuant to this chapter shall be liable for a penalty of no less than $500 for each violation or failure; provided that the penalties shall not exceed $5,000 per calendar year.
(e) All or part of the penalties imposed under subsections (a)(2) and (b) may be waived to the extent that the payment of the penalties would be excessive or otherwise inequitable relative to the violation or failure involved; provided that the covered employer can establish, by a preponderance of the evidence, the existence of equitable justification for the violation or failure.
(f) The penalties under this section shall be deposited into the special fund.

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