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.
Wednesday, August 10, 2011
Tuesday, July 19, 2011
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.
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.
Tuesday, July 5, 2011
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.
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.
Friday, May 13, 2011
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.
Wednesday, April 13, 2011
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.
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.
Thursday, February 10, 2011
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.
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.
Thursday, June 17, 2010
Farewell Darwin
Darwin Ching's last day as Director of Labor was Tuesday, June 15. While he never formally mentioned it, it is clear that he resigned to run for Honolulu Prosecutor. The general consensus at Wage Standards is that Darwin did a good job as the Director of Labor. Darwin was a sincere person who values people's efforts. During holiday times he would always come around and make a point to thank individuals for their work and wish them a happy, healthy holiday. It seems like a small thing, but it meant a lot to employees who never had interactions with him. While I didn't agree with everything he pursued, I respected how he listened and tried to meet people somewhere in the middle. I think the the Dept. of Labor and Industrial Relations has benefited from his presence.
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