Open Government-Employee Wages Found Due

Several members of Wage Standards attended the Hawaii Digital Conference on December 16.  As much of it was aimed at the technical side of things there was plenty of material that went over our "program-oriented" heads.   Hawaii's Chief Information Officer Keoni Kali referred to Act 263, 2013, and the Hawaii's open data page data.hawaii.gov. I had heard about this but have not yet figured out how we could participate.  What I walked away with from the summit, and I think what our new Governor Ige would support, is an initiative to promote more open data via this blog.  If you have any ideas on what type of information you would like to see let us know.

As 2014 draws to a close I think a proper resolution for 2015 would be to provide more data regularly, directly out of our office. 

Our Division is small, but important to our clients.  Keeping kids safe on the job, and collecting  money due employees that was earned and should be paid to them are important parts of our role.

To start, I'd like to reproduce a list of about 170 names and dollar amounts in back wages from various employers that we have collected over the years for individuals and have not been able to locate.  If your name appears on this list you can contact us and provide some further basic information to confirm your claim. Please come in to our office on Oahu at 340 Punchbowl, Room 340, Honolulu or call  808-586-8777 and leave your name and how we can contact you.  We are in the process of moving these claims to the unclaimed property division, so we urge you to call us soon.

Abero, Raymond H. M.-$1,830.50

Afong, Joseph T.-$631.78
Agbayani, Jr., Robert S.-$791.61
Agbayani, Ryan K.-$923.02
Agena, Asia-$551.25
Alejado, Paul-$579.36
Andres, Edward-$1,937.36
Andrzejewski, Jeffrey-$636.15
Arias, Jerry-$992.02
Bailey, Albert J.-$7,415.74
Balictar, Eugene-$1,699.82
Balite, Roger-$1,746.72
Barut, Felix-$649.64
Bautista, Greg-$1,622.34
Bell, Jack P.-$811.35
Belvery, Johnny-$1,088.42
Bennet, David Mike-$1,431.30
Bingham, Christine-$606.00
Blackburn, Douglas-$2,109.79
Bodahske, Daniel-$741.91
Bonilla, Henry-$720.00
Britto, Ian-$727.20
Broerman, Kenneth Lee-$1,041.55
Campana, Chris-$2,677.50
Campos, Mitchell-$742.08
Casey, Anthony-$1,197.50
Cera, Dionecia-$1,251.04
Chang, Mirum-$521.92
Ching, Christy K.-$1,550.00
Christmann, Christine-$2,243.07
Clark, Daniel A.-$2,466.90
Cline, Ronald-$2,083.06
Coates, Todd-$753.76
Conle, Aecha-$1,701.44
Conroy, Thomas-$824.47
Contessa, Lynn-$542.82
Contessa, Vance-$642.18
Correia, Gloriageen K.-$581.56
Cortez, Hilario-$530.18
Cuban, Jr., Michael-$841.00
Darisay, Ernest-$2,869.23
Dominquez, Gilbert-$1,165.80
Dove, Ariel-$1,025.67
Duarte, Myron-$2,089.12
Duenas, Robert-$935.25
Dunbar, Cynthia L.-$525.00
Dundas, Rob-$1,275.30
Dundas, Tom-$4,672.44
Durrell, Torry J.-$1,064.39
Duvall, Alexander-$712.38
Dy, Sanford-$2,027.48
Feddersen, Larry-$2,839.01
Felise, Ioane (John)-$1,428.16
Felix, Ringko J.-$716.00
Fotu, Sosiua-$2,654.08
Garcia, Thomas-$794.80
Gaul, Ron-$1,291.05
Godinet, John-$7,526.19
Gomes, Jonathan-$19,181.14
Hall, Michael D.-$1,120.11
Hanks, William-$646.49
Hanson, David-$2,034.29
Honda, Francis M.-$1,238.04
Hoopai, Tuulima-$759.21
Huntley, Daniel-$510.20
Iokia, Sherwood-$1,570.94
Joens, Christopher-$2,874.50
Kaahaaina, Rickie-$2,109.25
Kalles, Shawn-$2,531.89
Kamahiai, Walter-$4,697.92
Kamalu, Derard-$507.79
Kekahuna, Chris-$1,112.26
Kekuawela, Ryan K.-$2,327.51
Kelly, Chris-$936.20
Kidani, Daryl-$559.95
Kim, Gerardo-$997.98
Kim, Ki Chang-$7,297.34
Kolo, Rick-$2,029.13
Kurahashi, Judy-$507.00
Lacno, Donald-$580.80
Lakatani, Jonah-$14,374.13
Lamboya, Faustina-$17,746.13
Laney, James Willie-$903.26
Lau, John-$1,414.06
Lee, Norman-$6,687.42
Lee, Soon Kyn-$1,327.45
Leung, Timons-$1,009.06
Loi, Canton-$510.60
Lucero, Norberto-$1,776.84
Maesaka, Sky-$3,827.32
Mahoe, Robin-$14,767.85
Mann, Robert T.-$1,300.07
Matila, Setoga-$909.64
Mattes, Angela-$695.28
Matuu, Lafoaina Jr.-$1,660.06
McQuillan, Ralph-$964.41
Meacham, Lopaka-$1,429.68
Medeiros, Hoburn-$725.50
Medeiros, Justin-$1,030.40
Medina, Alfredo-$851.53
Mendham, Sina-$936.00
Molina, Teddy Alexie-$707.04
Moreno, Antonio-$1,411.48
Naeata, Viliami U.-$2,448.13
Narzisi, Frank-$3,397.33
Oneha, Harry-$1,922.94
Paguyo, Calvin-$890.58
Park, Benjamin-$692.24
Park, Kyung-$3,245.25
Pasa, Shannon-$2,033.06
Payapaya, Robert-$781.01
Pellant, Aaron-$551.36
Pero, Randy-$1,866.72
Perreira, Leroy-$13,696.29
Pfisterer, Luisina-$682.50
Phillips, Robey-$1,623.56
Pinzon, Yolando-$516.10
Power, Peter Sean-$1,377.70
Powers, Derek-$568.37
Prescott, Manisela-$1,188.75
Ramirez, Rizalina-$684.85
Rapera, Ernest-$6,579.49
Re', Constantza-$630.00
Regan, Shaye-$1,267.88
Roberts, Joshua-$676.97
Robinos, Pedrito-$2,008.64
Rupp, Joel-$1,507.79
Safua, Tau-$542.04
Salvador, Norbert-$513.62
Sanchez, Mathews A.-$3,318.30
Scott, Ellis W.-$1,580.38
Shiley, James M.-$1,634.92
Shin, Dong Won-$801.35
Silva, Robert-$3,728.15
Sima, Qiong-$1,326.53
Snyder, Debbie Y.-$2,109.25
Song, Chong Kil-$1,054.84
Spencer, Thomas-$1,095.71
Streater, Greg-$1,003.87
Suemad, Francis-$1,992.33
Suzuki, Shelly Dee-$807.60
Tabag, Lukela-$711.17
Tagapuen, Jacinto-$577.80
Tangaro, Enrique-$2,734.12
Tennberg, Gabriel-$1,435.62
Tilton, Louis-$818.42
Tolentino, Henry-$830.25
Torralva, Martin-$506.92
Tulane, Kenneth-$1,553.87
Valdez, Edwin-$1,163.50
Valdez, Jorge Eduardo Garcia-$1,928.16
Valencia, Richard-$2,370.72
Valera, Milagrosa-$1,179.79
Van Ekelenburg, John-$500.00
Villanueva, Paulino-$1,529.04
Waa, Harry-$725.18
Wagner, John-$1,306.72
Wells, Darin-$950.84
Williams, Yoko-$2,641.75
Wood, Richard M.-$1,327.90
Yacapin, Bryan-$1,129.36
Yrojo, Lynelle-$1,361.48 (paid 2/27/15)
Zane, Eric-$1,220.70

The Level Playing Field of Prevailing Wages

     The Hawaii prevailing wage law for the construction of public works  requires the Director of Labor to set the hourly rates that must be paid to  laborers and mechanics working on the job site.  The law is premised on providing a level playing field for those bidding on jobs that will be paid for or financed with public funds.  By requiring contractors to pay the same rates for the same jobs,  the bid is won by the expertise and efficiency of the contractor and not because their laborers and mechanics on the projects were paid less than another bidder.   
       Classification of the job is based on the prevailing practice in Hawaii.  Whenever there is a question or an issue determining what classification a particular type of job belongs to the Division reaches out to relevant stakeholders to iron out the distinguishing factors.  Recently we had some issues come up regarding Floor layers, Laborers, and Plumbers.  We were able to sort out the details by sitting down with all the relevant parties and create guidance memos.  The memos serve to maintain enforcement continuity from agency to agency and provide information to contractors who are bidding on projects.

     To see the latest memos on Floor Layers and sewer line pipe cleaning and inspection , and others, see the Wage Standards Division website, and look for "Guidelines" or click on "Read More" under the Prevailing Wage photo.

What is a Prevailing Wage "Day" in Hawaii?

This is an important question in Hawaii because there is a special overtime law for work on public projects in Chapter 104, Hawaii Revised Statutes (HRS), that is different than the general law of time and half due after 40 hours in a week, in the Wage and Hour Law, Section 387-3, HRS.  Under the Wages and Hours of Employees on Public Works, Section 104-2(c), HRS, overtime is due after eight hours in a day or on Saturday, Sunday or State Holidays.  While this seems straightforward, it may get complicated when laborers and mechanics are employed on public works through the night that cross calendar days.

Employer sets work day and work week.

It is logical to think that a day always starts and ends with the calendar day beginning at 12:00 midnight and ending 24 hours later.  This is generally the answer, but sometimes the work schedules of laborers and mechanics don’t coincide with the traditional work day and measuring a “day” differently is an appropriate way to address this type of schedule. 

When Hawaii law is silent on an issue and a federal version exists, the State will look to that federal law as guidance in interpreting Hawaii law.  The federal Fair Labor Standards Act (FLSA) defines workday and workweek as:

“a “workday” is any fixed period of 24 consecutive hours and a “workweek” is any fixed and regularly recurring period of 7 consecutive workdays”  29 CFR 516.2 (a)(7)

It is well settled that employers can determine when their work week starts, whether it be from Sunday to Saturday, or Monday  to Sunday , as long as it is 7 consecutive days it is up to the employer.  Likewise the employer sets the work schedule.  A common work schedule could be 8 a.m. to 4:30 p.m. with a half- hour lunch break from Monday to Friday without any overtime.  But what happens when the work schedule bleeds from one calendar day to the next?

Evening Shift work

Sometimes in public works construction the work shift starts at 9 p.m. and ends at 5 a.m.  In essence the employer has created the “workday” for those on the evening shift from 9 p.m  for the next 24 hours.   If the mechanic or laborer works more than 8 hours before the 24 hour day completion,  the hours worked in excess of 8 will be paid overtime rates. 

Saturdays, Sundays and State Holidays

It’s the overtime provision for Saturday, Sunday and State Holidays that interrupts the shift type schedule and reverts overtime calculations to a calendar-focused timeframe.  If a work schedule on a public works project goes from Friday 9 p.m. to Saturday 5 a.m. there is no avoiding 5 hours of overtime for laborers and mechanics for the hours worked on Saturday, regardless of the work schedule or workweek.

Here’s a great chart pulled from WSD archives and updated that explains how it works.

 

Chapter 104, Hawaii Revised Statutes, Wages and Hours of Employee on Public Works Law

Example of straight time and overtime pay on a project when the "work shift" is on a regularly scheduled night work.

Work Schedule	Sunday	Monday	Tuesday	Wednesday ( Holiday)	Thursday	Friday
8:00 p.m. to 5:00 a.m.		Work ends at 5:00 a.m.	Work ends at 5 a.m.	Work ends at 5:00 a.m.	Work ends at 5:00 a.m.	Work ends at 5:00 a.m.
(for purposes of this example only, there is no meal break)	.	From 12:00 a.m. to 4:00 a.m., payment is at straight time.   From 4:00 a.m.-8 p.m. payment is at overtime because it’s more than eight hours.	From 12:00 a.m. to 4:00 a.m., payment is at straight time.   From 4:00 a.m.-8 p.m payment is at overtime because it’s more than eight hours.	From 12:00 a.m to 8:00 p.m., payment is at overtime because it’s a holiday.	From 12:00 a.m. to 4:00 a.m., payment is at straight time.   From 4:00 a.m.-8 p.m payment is at overtime because it’s more than eight hours.	From 12:00 a.m. to 4:00 a.m., payment is at straight time.   From 4:00 a.m.-8 p.m. payment is at overtime because it’s more than eight hours.
	Work begins at 8:00 p.m.	Work begins  at 8 p.m.	Work begins at 8:00 p.m.	Work begins at 8:00 p.m.	Work begins at 8:00 p.m.
	From 8:00 p.m. to 12 midnight, payment is at overtime because it’s Sunday	From 8:00 p.m. to 12 midnight, payment is at straight time.	From 8:00 p.m. to 12 midnight, payment is at straight time	From 8:00 p.m. to 12 midnight, payment is at overtime because it’s a holiday	From 8:00 p.m. to 12 midnight, payment is at straight time

 

Common Problems

·         Changing shifts:  An employer could have more than one regular shift.  If one starts at 8 a.m.  and one at 9 p.m.  overtime will likely arise if an employer schedules an employee from one shift to another shift without a day break between the shift assignment change.

·         Using scheduling to avoid overtime: When  an employer uses the calendar day  to avoid overtime and schedules employees for six hours on Tuesday night from 6p.m. to 12a.m. and six hours on Wednesday from 12a.m. to 6 a.m.  for a total 12 hour shift, this would incur a 4 hour overtime, assuming the 12 hours was all work time at a public works job.

·         Split-shift rule: Employees and employers subject  to Chapter 387, Wage and Hour Law, Hawaii Revised Statutes, must comply with the split shift rule as well.  If an employee is assigned to two shifts in one consecutive 24 hour period, both shifts must start and finish within 14 consecutive hours.  For example, if an employee works from 12a.m. to 6 a.m. then starts on the 8 a.m. shift, they must complete the work by 2 p.m.  All work after 10 a.m. would be overtime as the workday started at 12 a.m. and continues for the next 24 hours.

" (f) No employer shall employ any employee in split shifts unless all of the shifts within a period of twenty-four hours fall within a period of fourteen consecutive hours, except in case of extraordinary emergency."  (Section 387-3(f), HRS)

Interstate Labor Standards Association - Part 541

Dr. David Weil addressing ILSA

I spent almost a week in Oklahoma City at the 50^th Annual Meeting of the Interstate Labor Standards Association (ILSA).  It is a national group of government officials who administer and enforce wage payment related laws.  This year there were 21 states represented, but I think most interesting is the number of federal representatives from four different agencies that came to listen and present. 

The federal presentations focused on partnering with the states to provide more effective coverage;  human trafficking preventions, enforcements and victim services; and exemptions from the Fair Labor Standards Act (FLSA).  This blog addresses what was characterized as the most expensive mistake, misclassification of a non-exempt individual as an exempt individual under the FLSA Part 541, and the source of some lively discussion.  While no commitments were made, the feds did agree they were in Oklahoma City to listen and understand where the problems currently exist with the salaried Executive, Administrative and Professional exemptions from minimum wage and overtime .  Hawaii has similar salaried “white collar” exemptions from minimum wage and overtime, plus a Supervisory exemption. (See Hawaii Administrative Rules 12-20-2 through 12-20-5)  No federal draft of proposed regulation changes has been created yet so ILSA state representatives had an opportunity to provide some perspective.

Present at the ILSA 50^th Annual Conference were many of the individuals at the state level who had contributed to the current Part 541 regulations adopted in 2004.  The session with Dr. David Weil, Administrator of Wage and Hour Division, United States Department of Labor and Michael Hancock, Assistant Administrator for Policy, Wage and Hour Division, United States Department of Labor, was insightful from the perspective of both the state administrators as well as the candid comments from the feds.  Anticipating a federal minimum wage increase naturally causes the element of guaranteed salary minimum to be looked at although substantive concerns surrounding the Administrative exemption were clearly evident as well.

I had planned a trip to Maui to talk with SHRM-Maui on August 8^th which was postponed (because of Hurricane Iselle) to Sept. 19.  Now I’ll be able to share all the national perspectives in addition to our Hawaii rules.  I'm looking forward to having the local discussion on these issues.  See you in Maui!