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)
