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)