Kuhio Day is an OT Day on State and County projects

Prince Kuhio Day
As a reminder to contractors working on State or County construction projects, Prince Kuhio Day is State Holiday and therefore all hours worked on Thursday March 26, 2015, need to be paid at the overtime rate. 

Calculating the correct OT rate
To calculate the overtime rate under Hawaii's prevailing wage law, Hawaii Revised Statutes Chapter 104, Hours and Wages of Employees on Public Works, take the basic hourly rate and multiply by 1.5*  then add the fringe benefit hourly rate amount to get the overtime prevailing wage rate.  For example, looking at the current applicable wage rate schedule, #485 for the prevailing wage rate of Carpenter the schedule shows $62.96.  Broken down it is a $42.25 basic hourly rate and $20.71 fringe benefit hourly rate.

Carpenter basic hourly rate $42.25 x 1.5 = 63.375 now add the hourly fringe benefit rate of $20.71 and get $84.08 for the overtime rate for carpenters on March 26, 2015.

How can the overtime prevailing rate be paid?
For contractors with a collective bargaining agreement in place, the certified payroll will show the carpenter being paid at least $63.38 per hour and show at least $20.71 per hour paid to the union trust fund for fringe benefits.  Other contractors who pay benefits on an hourly basis, the amount of basic hourly rate and the amount of fringe benefits paid to a third party trustee will be determined by the contractors own agreement with employees, the two amounts must add up to $84.08 per hour for all work done on March 26, 2015.

For contractors who are not parties to a collective bargaining agreement  or do not pay their fringe benefits on an hourly basis, the certified payroll must show a basic hourly rate of $84.08 for overtime work, because no credit for fringe benefits can be taken in overtime when paying fringe benefits on a monthly basis.  

Fringe benefit credit applies only for straight time.
For contractors that pay their workers benefits on a monthly basis, there is a formula that can be used to calculate an hourly credit, but the credit only applies to straight time hours.  The formula can be found in Hawaii Administrative Rule 12-22-4.  To calculate the hourly fringe benefit credit for straight time hours, take the amount paid by the employer and divide it by 173 and that quotient is the hourly credit amount that can be taken for straight time hours.

*Act 165, Regular Session 2015 modified the law to provide higher overtime rates than 1.5 where collective bargaining rates prevail in classifications.  Wage Rate Schedule 486 is the first schedule to direct overtime on Sunday at 2 x the basic hourly rate for some classifications, and 3 x the basic hourly rate on Labor Day.  See Note 13 on WRS 486. 

2015 Legislative Update

Administrative Measures
This week marks an important threshold in the legislative process of moving a bill out of one body over to the other, commonly referred to as crossover.  Wage Standards is still watching several bills that made this progress.  Both administrative measures, HB 952, HD2, Relating to Wages and Hours on Public Works Law, and its companion SB 1121, SD 1 (limited the time to file a complaint with the DLIR under the prevailing wage law to one year from the time the wages were due have been modified to allow complaints within 3 years in the current version of SB1121, and complainant confidentiality still remains in both) and SB 1122, Relating to Wage and Hour Law, which adjusts the guaranteed salary exemption to track the increases in minimum wage.

Paid Sick and Family Leave Bills
Two leave bills made the crossover.  Both perspectives initially analyzed previously in this blog under Paid Leave, are still alive.  In one, the employer pays and provides up to 40 hours of sick leave a year, (SB 129, SD2 Relating to Labor), in the other, the employee contributes one-half of one percent (.5%) of their wages into a newly created fund administered by the DLIR under the family leave law.  (HB 496, HD1 Relating to Employment). There seems to be strong support for the idea.  Twenty-one different representatives (Aquino, Brower, Cachola, Choy, Creagan, Hashem, Ichiyama, Ito,  Keohokalole, Kobayashi, Luke, Lopresti, McKelvey, Mizuno, Morikawa, Onishi, Say, Saiki, Takayama, and Woodson) and five senators  (Baker, Chun-Oakland, Espero, Galuteria, and Ihara) introduced some form of an employee-funded leave system, while  six senators (Chun-Oakland, Espero, Gabbard,  Ihara, Keith-Agarin, and Shimabukura) and one representative (Takumi) introduced some form of an employer paid leave system. Notice that three of the senators (Chun-Oakland, Espero, and Ihara) introduced both employer and employee funded measures. Legislators have made it clear that the idea of paid leave is important, but deciding how to implement it promises to be an interesting conversation.

Other Matters of Interest
Under the Wages and Hours of Employees on Public Works Law, SB216 SD2, and it's companion HB391, HD1, allow the payment of overtime on public works to follow the prevailing union negotiated private contract provisions, which would authorize overtime rates to exceed the current time and one-half, on Saturdays, Sundays, State holidays and regular work days in excess of 8 hours.  A similar provision stalled in Conference Committee last legislative session. 

The bullying bill, HB 819, HD2, Relating to Bullying , being followed on the Division's Facebook Page Hawaii Teens at Work ,applies to all agencies that provide services to youth.  This includes the Wage Standards Division in the administration and enforcement of work permits for minors, under the Child Labor Law, Chapter 390, Hawaii Revised Statutes.

In the unemployment area, SB1219 SD2, Relating to Employment Security, is addressing the independent contractor determination under the Employment Security Law, Chapter 383, Hawaii Revised Statutes.  A court case on Maui where the Department was overturned in its determination of the employer-employee relationship and ruled the individual an independent contractor appears to be the motivation for this measure.  (See Maui News February 6, 2015, Chamber View).  The independent contractor classification has long been an avenue of abuse of workers in Hawaii as a method of relieving employers from their legal obligations to provide, workers compensation, health benefits, and unemployment benefits that protect employees. This is a nationwide issue and the labor departments across America struggle with finding the balance without leaving employees at risk.

Budget
HB 500 HD 1, Relating to the State Budget, has no surprises for the Division good or bad.  Our staffing and expenses are the same as last biennium, with all adjustments attributed to collective bargaining items.  (See page 419 of the Feb. 23 budget worksheets)  No restoration of the 7 positions lost since 2008, but no more reductions either.  We are in active recruitment for 3 Labor Law Enforcement Specialist positions. For the details on the positions see a former blog Open Recruitment for Labor Law Enforcement Specialists.