Hawaiʻi's Family Leave Act, HRS 398
see also FAQs on the Hawaiʻi Family Leave Law (HFLL)
and Administrative Rules, Title 12, Chapter 27
Two years before the federal law (FMLA) was passed, Hawai'i enacted its own Family Leave
law
to allow up to four weeks of unpaid leave a year to employees who need to take care of a new
baby or a sick family member. The law now covers only private sector employers in the State who have 100 or more workers
for each working day of twenty or more weeks in the current or proceeding year.
Certification of Serious Health Condition (Form HFLL-1)
To be eligible for this leave, employees must have been working for six months. Employees are
expected to give "reasonable notice" in cases where the leave is "foreseeable." Employers may
require applicants to provide certification from an appropriate authority. Upon return from
statutory family leave, employees must be returned to their former position or equivalent position
with the same pay, benefits, and other conditions of employment.
An aggrieved employee must file a "verified complaint in writing" the State Department of Labor
and Industrial Relations.
State of Hawaiʻi Wage & Hour Enforcement Division:
On Oʻahu call 586-8777 [note: wait for the long recorded message to finish]
State Dept. of Labor District Offices:
On Maui call 243-5322
In Hilo call 974-6464
For West Hawaiʻi call 322-4808
On Kauaʻi call 274-3351
To a large degree, this state law has been overshadowed by the federal Family and Medical
Leave
Act of 1993 which covers employers with even less 100 employees and provides more weeks of
unpaid leave.
Family and Medical Leave Act of 1993 (Pub. L.
103-3)(29 U.S.C.
Chapter 28)
This federal law requires employers of 50 or more employees within a 75 mile area to provide up
to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical
reasons, such as:
- The birth or placement of a child for adoption or foster care;
- The care of an immediate family member (spouse, child or parent, or someone who stands
or
stood in place of such a family member); or
- Medical leave when the employee is unable to work because of a 'serious health
condition'.
Employees are eligible if they have worked for a covered employer for at least one year, and for
1,250 hours over the previous 12 months. [Rules & Regs. at 29
C.F.R. 825 & LRX 403:7101)
U.S. Department of Labor's FMLA
Web Site
Federal DOL Wage & Hour Enforcement:
call this O'ahu number, 541-1361
The employee may be required, where the leave is 'foreseeable', to provide 30 days advance
notice
and medical certification. Leave may be intermittent or a reduction in the usual number of hours
worked per day or week. Upon return from FMLA leave, the employee must ordinarily be
restored to his/her former
position/pay/benefits and other terms of employment.
For the duration of the FMLA leave, the employer must maintain the employee's medical
insurance coverage, though the employee may be liable to reimburse the employer for such
premium payments if he/she does not return to work. And it is unlawful for the employer to
discharge, discriminate, restrain or coerce an employee for using the leave.
The Fair Labor Standards Act of 1938
(29 U.S.C. 201 et seq.)
The FLSA was enacted to regulate wages and hours and the employment of child
labor. Commonly referred to as the federal wage and hour law, the FLSA sets the
federal minimum wage and was amended in 1963 by the Equal Pay Act to prohibit
sex-based wage discrimination as well.
Federal DOL Wage & Hour Enforcement:
On Oʻahu call 541-1361
Link to the federal Wage & Hour Web-site:
U.S. Department of Labor, ESA -Wage & Hour:
www.dol.gov/whd/
Today the law provides compensation standards and regulation in four basic
areas: 1) minimum wages; 2) overtime compensation; 3) sex-based wage
discrimination; and 4) child labor. It applies generally to interstate commerce
and industry (liberally construed) and operates independently of individual
state laws and other federal acts which apply compensation standards to public
works contracts (
Davis-Bacon), government service contracts (
Service Contract
Act), and government supply contracts (
Walsh-Healey).
Higher state minimum wage acts are not superseded or preempted, and federal standards cannot
be used to excuse non-compliance with the higher state minimums. For instance, as of 7/24/09 the federal minimum wage was raised to $7.25.
The Hawaiʻi State minimum wage, however, rose to $12.00 on 10/1/22. The federal wage and hour laws do not limit the number of hours that an employee can work in a week, but the employee must be paid time-and-one-half the regular rate for each hour worked over 40 hours in a workweek.
U.S. Departmnt of
Labor's Minimum Wage Web Poster Site
www.dol.gov/whd/minwage/q-a.htm (US DOL's "Questions and Answers About the Minimum Wage")
Wage & Hour Laws and Regulations
Federal law defines 'oppressive child labor' through the use of age
restrictions. Essentially minors under 14 cannot be employed except in
agriculture; minors 14 to 16 can work limited hours outside of their school
hours in a limited class of jobs; and minors 16 to 18 cannot be employed in
certain hazardous occupations. Under the federal law, an employee may sue for
back wages within two years (three in the case of willful violations), while the
state provides workers up to six years to file suit.
COVERAGE & EXEMPTIONS:
The FLSA uses rather complicated formulae in determining which workers are
covered. Exemptions may apply to classes of employees or types of industries,
or may exempt certain workers from some, but not all provisions of the act. For
example agricultural workers employed by members of the immediate family; a
hand-harvest laborer paid on a piece-rate basis and who commutes daily to the
farm at which he's employed; an employee of an employer who did not use more
than 500 man-days of agricultural labor during the calendar year, etc. [see for instance "Miscellaneous Exemptions", 29 CFR 786]
As of August 23, 2004 the regulations governing which white collar employees are exempt from the overtime provisions of the FLSA are as follows:
Executive Exemption
To qualify for the executive employee exemption, all of the following
tests must be met:
- The employee must be compensated on a
salary basis
(as defined in the regulations) at a rate not less than $455 per week;
- The employees primary duty must be managing the enterprise, or
managing a customarily recognized department or subdivision of the
enterprise;
- The employee must customarily and regularly direct the work of at
least two or more other full-time employees or their equivalent; and
- The employee must have the authority to hire or fire other employees,
or the employees suggestions and recommendations as to the hiring,
firing, advancement, promotion or any other change of status of other employees
must be given particular weight.
Administrative Exemption
To qualify for the administrative employee exemption, all of the
following tests must be met:
- The employee must be compensated on a
salary or fee
basis (as defined in the regulations) at a rate not less than $455 per
week;
- The employees primary duty must be the performance of office or
non-manual work directly related to the management or general business
operations of the employer or the employers customers; and
- The employees primary duty includes the exercise of discretion
and independent judgment with respect to matters of significance.
Professional Exemption
To qualify for the learned professional employee exemption, all
of the following tests must be met:
- The employee must be compensated on a
salary or fee
basis (as defined in the regulations) at a rate not less than $455 per
week;
- The employees primary duty must be the performance of work
requiring advanced knowledge, defined as work which is predominantly
intellectual in character and which includes work requiring the consistent
exercise of discretion and judgment;
- The advanced knowledge must be in a field of science or learning;
and
- The advanced knowledge must be customarily acquired by a prolonged
course of specialized intellectual instruction.
To qualify for the creative professional employee exemption, all
of the following tests must be met:
- The employee must be compensated on a
salary or fee
basis (as defined in the regulations) at a rate not less than $455 per
week;
- The employees primary duty must be the performance of work
requiring invention, imagination, originality or talent in a recognized field
of artistic or creative endeavor.
Computer Employee Exemption
To qualify for the computer employee exemption, the following tests must
be met:
- The employee must be compensated either on a
salary or fee
basis (as defined in the regulations) at a rate not less than $455 per week
or, if compensated on an hourly basis, at a rate not less than $27.63 an
hour;
- The employee must be employed as a computer systems analyst, computer
programmer, software engineer or other similarly skilled worker in the computer
field performing the duties described below;
- The employee's primary duty must consist of:
1) The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software or system
functional specifications;
2) The design, development, documentation, analysis, creation,
testing or modification of computer systems or programs, including prototypes,
based on and related to user or system design specifications;
3) The design, documentation, testing, creation or modification of
computer programs related to machine operating systems; or
4) A combination of the aforementioned duties, the performance of
which requires the same level of skills.
Outside Sales Exemption
To qualify for the outside sales employee exemption, all of the
following tests must be met:
- The employee's primary duty must be making sales (as defined in
the FLSA), or obtaining orders or contracts for services or for the use of
facilities for which a consideration will be paid by the client or customer;
and
- The employee must be customarily and regularly engaged away from the
employer's place or places of business.
Highly Compensated Employees
Highly compensated employees performing office or non-manual work
and paid total annual compensation of $100,000 or more (which must include at
least $455 per week paid on a salary or fee basis) are exempt from the FLSA if
they customarily and regularly perform at least one of the duties of an exempt
executive, administrative or professional employee identified in the standard
tests for exemption.
Blue Collar Workers
The exemptions provided by FLSA Section 13(a)(1) apply only to
'white collar' employees who meet the salary and duties tests set
forth in the Part 541 regulations.
Salaried Workers
Since Salaried workers are usually exempt from the over-time provisions of the law, particularly important is the definition of salary basis in Part 541.602, which prvides in relevant part: An employee will be considered to be paid on a
``salary basis'' within the meaning of these regulations if the
employee regularly receives each pay period on a weekly, or less
frequent basis, a predetermined amount constituting all or part of the
employee's compensation, which amount is not subject to reduction
because of variations in the quality or quantity of the work performed.
Subject to the exceptions provided in paragraph (b) of this section, an
exempt employee must receive the full salary for any week in which the
employee performs any work without regard to the number of days or
hours worked.
In 1947 the Portal to Portal Act (29 U.S.C. 251-262) amended FLSA to give
clearer definition the term "workday" and to answer questions regarding
employers' liability to compensate workers.
HOURS WORKED (29 CFR Part 785)
- Voluntary late work -29 CFR 785.11
- Work not requested but suffered or permitted is work time. For example, an
employee may voluntarily continue to work at the end of the shift. He may be a
piece worker, he may desire to finish an assigned task or he may wish to correct
errors, paste work tickets, prepare time reports or other records. The reason is
immaterial. The employer knows or has reason to believe that he is continuing to
work and the time is working time.
- Rest breaks -29 CFR 785.18
- Rest periods of short duration, running from 5 minutes to about 20 minutes
are common in industry. ... They must be counted as hours worked.
- Meal breaks -29 CFR 785.19
- Bona fide meal periods are not worktime. Bona fide meal periods do not
include coffee breaks or time for snacks. These are rest periods. The employee
must be completely relieved from duty for the purposes of eating regular meals.
... The employee is not relieved if he is required to perform any duties,
whether active or inactive, while eating.
- Lectures/meetings -29 CFR 785.27
- Attendance at lectures, meetings, training programs and similar activities
need not be counted as working time if the following criteria are met: (a)
Attendance is outside of the employee's regular working hours; (b) Attendance is
in fact voluntary; (c) The course, lecture or meeting is not directly related to
the employee's job; (d) The employee does not perform any productive work during
attendance.
- Training programs -29 CFR 785.31
- The training is directly related to the employee's job if it is designed to
make the employee handle his job more effectively as distinguished from training
him for another job, or to a new or additional skill.
- Changing clothes at work -29 CFR 785.24 and 790.8(c)
- Among the activities included as an integral part of a principal activity
are those closely related activities which are indispensable to its performance.
If an employee in a chemical plant for example, cannot perform his principal
activities without putting on certain clothes, changing clothes on the
employer's premises at the beginning and end of the workday would be an integral
part of the employee's activity.
- Changing clothes off work -29 CFR 785.24 and 790.8(c)
- On the other hand, if changing clothes is merely a convenience to the
employee and not directly related to his primary activities, it would be
considered as a 'preliminary' or 'postliminary' activity rather than a principal
part of the activity.
- Travel time to/from work -29 CFR 785.35
- ... travel time at the commencement or cessation of the workday .... need
not be counted as worktime unless it is compensable by contract, custom or
practice. On the other hand, 29 CFR 785.36 provides, if an employee who has
gone home after completing his day's work is subsequently called out at night to
travel a substantial distance to perform an emergency job ... all time spent on
such travel is work time.
- Travel time during work -29 CFR 785.38
- Time spent by an employee in travel as part of his principal activity, such
as travel from job site to job site during the workday, must be counted as hours
worked.
- Civic work -co. requested -29 CFR 785.44
- Time spent in work for public or charitable purposes at the employer's
request, or under his direction or control, or while the employee is required to
be on the premises, is working time.
- Medical attention -29 CFR 785.43
- Time spent by an employee in waiting for and receiving medical attention an
the premises or at the direction of the employer during the employee's normal
working hours on days when he is working constitutes hours worked.
- On call time -29 CFR 785.17
- An employee who is required to remain on call on the employer's premises or
so close thereto that he cannot use the time effectively for his own purposes is
working while 'on call'. An employee who is not required to remain on the
employer's premises but is merely required to leave word at his home or with
company officials where he may be reached is not working while on call.
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INDUSTRIAL HOMEWORK (29 CFR, Part 530)
One of the earliest and longest struggles of the labor movement has been the
fight against industrial sweatshops and unregulated piecework doled out as
homework to workers at low or subminimum wage rates. The FLSA defines homework
as work done in or about a home, apartment, tenement, or room in a residential
establishment.
Homeworkers must be paid at least the hourly minimum wage and overtime in
accordance with the act, unless the employer has a certificate permitting the
employment of a particular disabled worker at less than the minimum wage.
There is no general ban on homework; however, regulations do require employers
to obtain certification from the DOL for garment industry and jewelry
manufacturing workers.
The Hawaiʻi Wage and Hour Law, HRS 387
The Hawaiʻi State Wage & Hour Law employs its
own system of tests/formulae to
determine which workers are covered, but does not cover any State and County employees.
State of Hawaiʻi Wage & Hour Enforcement Division:
email: dlir.wages@hawaii.gov
On Oʻahu call 586-8777 [note: wait for the long recorded message to finish]
State Dept. of Labor District Offices:
On Maui call 243-5322
In Hilo call 974-6464
For West Hawaiʻi call 322-4808
On Kauaʻi call 274-3351
MIMIMUM
WAGE:
Act 214 (2022) amended HRS 387 to raise the State minimum to $12.00 an hour on October 1st.
On January 1, 2024, it will rise to $14.00 per hour; then on January 1, 2026 to $16.00 per hour; and
to $18.00 per hour beginning January 1, 2028.
EXEMPTIONS:
Persons at guaranteed monthly salary of $2000/month; State and County workers (who are
covered instead by HRS 78 and HRS 89); workers in coffee harvesting operations; agricultural
workers if employer has fewer than 20 employees; domestic workers; houseparents in charitable
organizations; employer's relatives (brother, sister, brother-in-law, sister-in-law, son, daughter,
spouse, parent, parent-in-law); those employed in bona fide executive, administrative,
supervisory,
or professional capacity; outside salespersons or collectors; those in fish or aquatic farming
industry prior to first processing; seafarers; on-call, fixed stand vehicle drivers; golf caddies;
student employees of nonprofit school; seasonal employees of certain nonprofit youth camps;
and
automobile or truck salespersons for licensed dealer.
CREDITS:
Meals and Lodging --Credits permitted for reasonable cost, as determined by the department, of
furnishing employee meals, lodging, and other facilities customarily furnished by the
employer.
Tips and Gratuities -- 75¢ an hour less than minimum wage allowed for tipped employees if combined wages and tips are at least 50 cents an hour more than the minimum wage, provided that the combined amount the employee receives from the employee's employer and in tips is at least $7.00 more than the minimum wage.
SUBMINIMUM:
Less than minimum wage for learners, apprentices, those impaired by old age or physical or
mental handicap, certain students, and paroled wards of the state youth correctional facility may
be paid according to rules provided by the Director of DLIR.
OVERTIME:
1 and 1/2 times regular pay for hours in excess of 40 hours per week. Employers in certain
industries may select 20 work-weeks per year during which they shall be exempt from the
overtime compensation requirement, although they must pay 1 and 1/2 times the regular rate for
hours in excess of 48 per week. These
industries are agriculture; first processing of dairy products; processing of sugar cane molasses or
sugar cane; first processing or canning or packing and agricultural or horticultural commodity;
handling, slaughtering, or dressing poultry or livestock; agriculture and processing of agricultural
products seasonally; or first processing or canning or packing of seasonal fresh fruits.
State of Hawai'i Information on "White Collar Exemptions", and Federal/State Overtime Coverage
by Occupation or Category of Workers
EQUAL PAY:
Under Section
387-4, it is unlawful to discriminate in payment of wages on the basis of race or
religion, or to pay any female employee at a rate less than that paid to a male employee for the
same quality and quantity of work in the same work classification. Variation of rates are not
prohibited if based on seniority of length of service, substantial difference in duties or services
performed, difference in shift. The employer may not reduce the rate of pay of a higher paid
worker in order to comply with this section.
ENFORCEMENT:
Under Section
387-12(b) any employer who violates the minimum wage or overtime provisions
of
this law is liable to the employee or employees affected in the amount of their unpaid minimum
wages or unpaid overtime compensation, and in the case of wilful violation in an additional
amount as liquidated damages.
If you have an Adobe Acrobat Reader, you can download
The State Administative Rules for Hawaii's Wage & Hour Law
[Title 12, Chapter 20].
and the Employee's Notices:
Minimum Wage Notice
Payment of Wages Law Notice
Hawai'i Payment of Wages Law, (HRS
388)
Requires employers to pay wages regularly at least twice each calendar month and within 7 days
after the end of each pay period. Payment must be in cash or check convertible to cash on
demand. If the paycheck bounces, the employer is liable for any special handling fee assessed by
the bank. Discharged employees must be paid in full on the day of discharge or no later than the
next work day.
Employees who quit or resign must be paid no later than the next regular pay day. Employees
must be notified in writing or through a posted notice of any changes in pay arrangements prior
to
the change, and employees must be furnished with a pay statement at payday showing gross
wages, itemized deductions, net pay, and pay period. And Employers may not deduct for fines,
cash shortages,
breakage charges, bad checks accepted or the cost of required physical exams, nor may the
employer or prospective employer require payment of job application processing fees.
On O'ahu call 586-8777
State Dept. of Labor District Offices:
On Maui call 243-5322
In Hilo call 974-6464
For West Hawai'i call 322-4808
On Kaua'i call 274-3351
If you have an Adobe Acrobat Reader, you can download
The State Administative Rules for Hawaii's Payment of Wages Law
[Title 12, Chapter 21].
Sttae of Hawai'i Payment of Wages Law Poster
It must be noted, however, that the law does not cover State and County employees and allows a
variety of exceptions to the above provisions which need to be weighed in light of the specific
details of each case.
Hawai'i Garnishment of Wages Law, (HRS
652)
Under the Garnishment Law, an employee who has major debts or creditors may have a portion
of his/her wages withheld by court order until the debt is paid. The law allows for the portion
withheld to be 5% of the first $100 per month, 10% of the next $100, and 20% of the amount
exceeding $200 per month.
The federal wage garnishment law (Title III of the
Consumer Credit Protection
Act) further limits the amount of an employee's weekly earnings which may be garnished to
25% of his/her disposable earnings. The federal law and the Hawai`i Employment Practices Act
(HRS §378-32) also prohibit employers from discharging any employee because of the
garnishment.
Hawai'i Child Labor Law, HRS 390
The federal law (FLSA) defines "oppressive child labor" through the use of age restrictions. ;
minors 14 to 16 can work limited hours outside of their school hours in a limited class of jobs;
and
minors 16 to 18 cannot be employed in certain hazardous occupations. Under the federal law, an
employee may sue for back wages within two years (three in the case of willful violations), while
the state provides workers up to six years to file suit.
If you have an Adobe Acrobat Reader, you can download
The State Administative Rules for Hawaii's Child Labor Law
[Title 12, Chapter 25].
On O'ahu call 586-8777
State Dept. of Labor District Offices:
On Maui call 243-5322
In Hilo call 974-6464
For West Hawai'i call 322-4808
On Kaua'i call 274-3351
Under Hawai'i's law, generally minors under 14 cannot be employed except in
theatrical or coffee harvesting. Employers are required to obtain certificates
of age and employment for children under the age of 18 who are working in
compliance with the federal and state limitations. Minors 14 and 15 years of
age may only be employed between the hours of 7:00 a.m. and 7:00 p.m., except
from June 1 to the day before Labor Day, when they may work between 6:00 a.m.
and 9:00 p.m. The law also requires minors 14 and 15 years of age be given a
rest period of at least thirty consecutive minutes after working five hours
continuously. The state law does not cover minors selling or distributing
newspapers, golf caddies, those employed by their parents, or minors working at
a private residence.
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