Fence Erector (Chain-link) Classification Returns

If you do any kind of public works construction you may be aware that the classification of Fence Erector (Chain-link) was removed from the Wage Rate Schedule 476 issued Sept 19, 2011. The classification was removed because our federal counterparts under the Davis-Bacon Law had removed the classification on their General Wage Decision for Hawaii and Hawaii law says Hawaii rates can't be lower than the federal rate. (See Section 104-2(b)(2), HRS).  The problem is the application of the removal from the federal and State wage schedules had different effects.

In the federal environment each construction project has only one wage rate schedule for the duration of the project, so federally-funded jobs previously bid and awarded were not effected.  This is not so with the State and county public work projects covered by the Hawaii little "Davis-Bacon", Chapter 104, HRS.  Hawaii law requires contractors to keep pace with any changes in the wage schedules over the duration of the project.  (See Section 104-2(c), HRS)  This small difference made a big impact. 

When the federal government changed the classification of work formerly done as FENCE-ERECTOR (Chain-link Fence) to LABORER II, the State was obligated by law to "not be lower than the federal rate."(See Section 104-2(b)(2), HRS).  Wage Rate Schedule 476, issued on September 19, 2011, reflected this requirement by removing the classification of FENCE ERECTOR (Chain-Link) and requiring contractors to pay those employees as a LABORER II.  This represented a 110% increase for contractors who had open jobs for FENCE ERECTORS (Chain-Link) increasing the rate from $20.87 per hour to $43.61 per hour.  This dramatically impacted several ongoing public works and contractors.

On December 23, 2011, the USDOL rescinded their previous wage decision on FENCE ERECTOR (Chain-Link) and reinstated the classification.   Hawaii followed suit by issuing an interim wage rate schedule WRS #477, effective as of December 26, 2011, reinstating the classification and rate of $20.87 for FENCE ERECTORS (Chain-Link).

In  a closing note you will notice the WRS #477 also lists the Classification of PAINTER.  When preparing an interim wage rate schedule outside the regular issue in February and September, all classifications are notified and any other reductions in rates in effect at the time are included. 

The re-issuing of the FENCE ERECTOR (Chain-Link) classification puts the prevailing area practice back in control and in compliance with Hawaii law.  A great way to end the year! Have a Happy and Healthy 2012!

Happy Holidays!

Some of the DLIR took a lunch break to sing some Carols in the Courtyard of the Building!  Have a Happy Holiday!

As a reminder to everyone - the State Offices will be closed Monday, December 26 and Monday January 2.

Job Accommodation Network

    This is the 10th Anniversary of the US Dept. of Labor's Office of Disability Employment Policy (ODEP).  One of their most helpful programs to employers and employees alike is the Job Accommodation Network (JAN).  JAN is available 24/7 and has practical, meaningful tips on employing and working with individuals with disabilities. JAN also provides free webinars every month that provide excellent training on equal opportunity issues in many areas.  While the schedule is currently showing "full", there is always a chance for a last minute cancellation. 

    The local Hawaii Disability and Communication Access Board (DCAB) in the Department of Heatlth is another great resource to get answers to your questions.  The Department of Labor and Industrial Relations is working to create integrated places of employment that benefit both employers and employees with disabilities.  It's a good goal for every workplace to adopt in 2012!

Reassignment of Administrator

The big news Inside Wage Standards is that the Administrator has been reassigned to the Director's Office and is no longer located in Room 340.  I've been told this is a temporary re-assignment but am unsure how long it will last.  Russell Horikawa has been Temporarily Assigned to be Acting Administrator while I'm gone.

Andrei Soto Manager of the Year for DLIR 2011

   This afternoon the Department presented the Incentive and Service Awards Ceremony.  Among the nominees Wage Standards was represented in three categories.  Our Employee of the Year nominee was Lori Hamada in Hilo. Lori is a Labor Law Enforcement Specialist and dedicated professional who has lived the WSD motto of service with Aloha for many years.  If everyone had Lori's skill with people and relationships, we wouldn't have any problems to solve. This quiet and effective investigator has accomplished so much. This year Employee of the Year went to Disability Compensation Division's Cindy Terao. 

The Wage Rate Schedule Team- (Lto R)Russell Horikawa, Mari Imamura, Myra Oshiro, Ellie Yoshida (missing Wes Lum).

    Wage Standards also had a nominee in the Team Award Category.  The Wage Rate Schedule Team, Myra Oshiro and Ellie Yoshida of Research and Statistics and Russell Horikawa, Mari Imamura and Wes Lum of the Wage Standards Division.  This team issued not one, not two, but three supplemental addenda to the Wage Rate Schedule that normally comes out just twice a year.  In this time of economic challenges their effort made a significant contribution to both contractors' and agencies' bottom lines.  This year the Team Award went to Workforce Development Division's Youth Summer Employment Team.

    Last, but not least the nominee and winner for Manager of the Year is Wage Standard's very own Andrei Soto, Hearings Branch Chief.  Andrei will represent DLIR on October 14 at the State Capitol when the State Manager of the Year is awarded.  The perpetual plaque presented to Andrei below revealed this is not the first time Wage Standard personnel has won the award.  In 2005, Carole Hara was DLIR Manager of the Year.

Deputy Director Audrey Hidano, Manger of the Year Andrei Soto, and Director Dwight Takamine

     We are very proud of all the nominees and to everyone at DLIR who works so tirelessly to serve the public.  Congratulations to all the nominees and winners!  Your presence makes the DLIR a great place to work.

Recent Press Release

Yesterday, the USDOL issued a press release about developments in the cooperation between certain state and federal agencies concerning the identification of employers who misclassify employees as independent contractors rather than employees. See PBN article http://www.bizjournals.com/pacific/blog/morning_call/2011/09/hawaii-working-with-labor-department.html. Yes, Director Takamine signed a Memorandum of Understanding with the US DOL Regional Director of the Wage and Hour Division, George Friday, in August that formalized an ongoing relationship between the Hawaii District Office, Wage and Hour Division of the US DOL and the Hawaii Wage Standards Division of the Hawaii Department of Labor and Industrial Relations. Our offices have collaborated on several projects in the recent past. Last year both offices joined the Hawaii Dept. of Agriculture and went to all neighbor islands discussing the special wage laws about agriculture. The two offices regularly work together on enforcing child labor laws and have made joint presentations on the Family Medical Leave Act and the Hawaii Family Leave Law, and Davis Bacon Act and Hawaii's prevailing wage law, Chapter 104, Hawaii Revised Statutes.

Wage Rate Schedule to be released Friday.

    The Wage Rate Schedule #476 effective September 19, 2011 will be available to the public on the Department's website on Friday, September 16, 2011.  It is always important for contractors to check the classifications of laborers and mechanics they employ to make sure current rates are being paid.  This is a major difference between State and county public works and federal public works.  On State and county public works projects contractors are required to pay the most current rate regardless of the date when the project was awarded.  This differs with federal public works projects where only one wage rate schedule is issued for the duration of the project.
    Wage Rate Schedule #476 will not have a separate classification of Fence Erector (chain-link).  Hawaii law (see Section 104-2(a)(2), Hawaii Revised Statutes) states that Hawaii rates can not be less than the federal rate for the same classifications.  The federal wage rate schedule has removed the classification and Fence Erector (chain-link) is being removed from the State list as well.  Work that was formerly classified as Fence Erector (chain-link) will now be considered Laborer II work.

What is the Student worker wage rate in Hawaii?

The Division maintains a facebook page for teens called Hawaii Teens at Work as a form of outreach. The people that connect with the page are both teens and parents. The question "what is the student-worker wage rate?" was presented this week and presents some interesting issues.
The topic of a student-worker wage rate has not been a pressing concern in recent times because for so long there was drought of labor. During the last two to three years we've watched the job market dry up, especially for teens. Looking through the old Hawaii Administrative Rule publications the Wage Standards Division has a publication under Title 12, Chapter 20, Subchapter 4, Employment of Student-Workers. These are rules enacted under the authority of the Wage and Hour Law, Chapter 387, Hawaii Revised Statutes. The rules provide that full-time students working part-time (no more than 4 hours a day, or 8 hours on a non-school day, and not more than 25 hours a week) can be paid 85% of the minimum wage if the employer applies for a certificate and the Director of Labor issues it prior to the student-worker working for the special minimum wage.
Special minimum wage certificates are good for only a year and have to be re-applied for on annual basis. The Hawaii Teens at Work inquiry appeared to be looking for an advantage to offer potential employers to hire students by paying a lower wage. What employer wouldn't want that for any entry-level position. While issuing student workers a special minimum wage is not de rigueur for this office, the Hawaii state law does allow it.
Alas, since the federal government has raised the federal minimum wage to $7.25, any special minimum wage (or sub-minimum wage in federal terms) may run afoul of the Fair Labor Standards Act (FLSA). Employers and employees should be aware of this potential pitfall and check with the local US DOL Wage and Hour division at 541-1361

Speaking at American Payroll Association Hawaii Chapter Aug. 11

The local chapter of the American Payroll Association has asked me to speak at their lunch meeting on August 11 at the Ceridian Lunch Room at 2828 Paa Street. The topic will be Chapter 104 Basics. I've taken our basic workshop which is normally 2 to 2 1/2 hours and pared it down to 45 minutes to focus on certified payroll issues, particularly overtime and fringe benefits and give some current data on the work we've been doing. The presentation will also include recent legislative changes to the law. I'm looking forward to this presentation because the audience has always been interesting and they always teach me something.

Child Labor Violations

The safety of young workers has been a priority for the Division since its beginning. The federal government issues a series of Hazardous Occupations Orders (HOs) identifying work that should not be allowed for workers under age 18. The jobs considered hazardous appear in the Hawaii Administrative Rules (HAR) Title 12, Chapter 25, Sub-chapter 4. The Hawaii rules are based substantially upon "Regulation XXXIII, Relating to Hazardous Occupations for Minors Under Eighteen Years of Age" of the Department of Labor and Industrial Relations", so when the federal government makes adjustments, it is important for us to review. On July 13, 2011, the U.S. Dept. of Labor issued a Field Assistance Bulletin that addresses H.O. #7 addressing power-driven hoisting apparatus and can be viewed here. The correlating Hawaii Rule is 12-25-45, HAR.
The federal Bulletin allows the use of discretion in pursuing child labor violations when a 16 or 17 year old operates a hoisting apparatus at a nursing home. Using power driven hoisting equipment is still prohibited, but a 16 or 17 year old may be the junior member of a "team" who works a patient hoisting apparatus. Hawaii takes a similar stance, the 16 or 17 year old may be a helper, but can not operate the hoist.

Prevailing Wage Conference by Feds

The U.S. Department of Labor, Wage and Hour Division (Hawaii Wage Standards Division federal counterpart) is having a FREE Prevailing Wage Conference in Hawaii July 20, and 21, for more information check out this link to the announcement.

If you have (or want) a federal contract you will want to attend this conference. It covers both construction and service related industry information. Space is limited so act quickly.

Time Sheet App

This week the US Department of Labor issued a new Time Sheet App for iPhones and iPads. I don't have an iPhone or an iPad so I haven't had a chance to check it out. It's supposed to be a tool for employees to track their hours, so they can monitor their paycheck and be sure they have been paid the correct amounts. The DLIR has a link to the application on their Home page under Tools. If anyone uses it. Let us know what you think.

Going to Conference

The measures left WSD is still watching are SB1076 Relating to Employment Practices and HB 1434 Relating to Public Works Projects. Both bills have passed in some form in both the Senate and House and now will likely be resolved in conference. The Division is always looking at better ways to enforce the law. In a perfect world everyone would voluntarily comply. There are definitely more out there that comply than don't and even more that think they are in compliance.

Senate Bill 1076 Relating to Employment Practices is trying to protect employer-employee agreements to provide sick leave and balance attendance policies that conflict with it. In its current form it only applies to employers with 100 or more employees, and there aren't that many in Hawaii and it doesn't include the State or county employers. The impact of this bill on our office is unknown. Also, the law as currently drafted just applies to those employees with a collective bargaining agreement ("cba") and our policy and practice is to make sure employees have exhausted all their grievance issues before taking on a claim. If there is a dispute on the enforcement of the cba, there may be cause to defer the issue to the NLRB.

House Bill 1434 Relating to Public Works Projects wants to change the way DLIR imposes a Notice of Violation from issuing one per investigation, to one per project. If this passes the imposition of the penalty will have to change as well. Where previously DLIR would penalize each section violated for each person for each project or a % of the back wages found due, for each Notice of Violation, if HB 1434 passes DLIR will only be able to assess penalties for one project at a time and will be limited to looking at 3 projects before someone is eligible for suspension. It is true that the majority of violations we find relate only to one project, but there are enough situations where complaints are registered against one employer by an employee who worked on several projects, sometimes as many as 13. These employers will be suspended under this new law, but will end up paying fewer penalties. The DLIR would still pursue back wages for the employee, either way.

But again, nothing is final yet--it's still a waiting game.

2011 Legislative Session

The Hawaii 2011 Legislative Session is upon us. Wage Standards Division is tracking some familiar issues and some new measures.

HB341/SB1076 Relating to Employment Practices. At the hearing the other day for SB 1076 Judiciary and Labor Chairperson Clayton Hee commented that he is interested in passing a measure that resembles SB 2883 CD1 from the 2010 Session that passed and was vetoed by Governor Lingle. It is likely the idea of putting in protected class, those who are terminated or discriminated against for using their sick leave appears to have a favorable audience this year. Department testimony was in support with some concerns.

Minimum Wage is also up for discussion. Many of the measures are working to use a CPI index for automatic yearly updates. We expect the SD1 version of SB1037, heard at Judiciary Labor on Feb 8 will remove that aspect from the measure. So far, no word on this from the House side. Department testimony was in strong support.

Required Meal Breaks for those working more than 5 hours has also been brought up in both the Senate and House, the Senate chose to pass it out for SD1. See SB1405 and the house deferred HB1316. There will be some interesting dialogue on this measure. The Department testimony is in support of the intent with comments.

The last thing I'll mention today is the prevailing wage measure passed out of the House Labor and Public Employment Committee yesterday, HB1434 in a HD1 version. I was down in the Senate Labor Committee when the comments were made and when the House LAB voted so I didn't hear what they're going to change. I'll reserve comments on that for later. I believe that Chair Rhodes understands our concerns that this is a fundamental change in the way prevailing wage investigations and penalties will be issued, I just wish there was an easy way to fix it without overhauling the majority of the Chapter 104 law. I think there is merit in giving Act 146, Session Laws of 2008, an opportunity to start working. Again, Department testimony was in support of the intent for enforcement. A big concern is that the method has produced a "Careful what you ask for" wide net that will hurt otherwise law-abiding contractors. In contrast, Act 146 , codified at 104-25(a)(3), focuses on cheaters, those who falsify records rather than simply make mistakes.