Human Trafficking Poster

   As of January 1, 2014,  Act 245, Session Laws of Hawaii 2013, requires certain employers to post a notice to employees about help for Human Trafficking.  The poster can be found on the DLIR website here. The National Human Trafficking Resource Center Hotline is 1-888-373-7888.

   The types of employers that are required to post this poster include employers who:

1.  Hold a class 5 or class 11 liquor license pursuant to section 281—31, Hawaii Revised Statutes;
2.  Maintain a massage therapy establishment that employs five or more people; or
3. Employ one or more erotic or nude massagers or erotic or nude dancers as defined in section 712—1210, Hawaii Revised Statutes.

  Act 245 also includes a penalty in the amount of $100 a day for employers who violate this requirement.  This penalty is a civil action.  The Act is now codified at section 371-20, Hawaii Revised Statutes.

Elevator Rules to be Reviewed by Small Business Regulatory Review Board

   Tomorrow, Wednesday, January 22, 2014, the Small Business Regulatory Review Board has the current rules amendments for elevator, escalators and other similar type of equipment on the their agenda.  The meeting will be held at 9:30 a.m. at the No. 1 Capitol District Building, 250 South Hotel Street, Conference Room 436. 

   The update of the Elevator rules has not been accomplished since 1999.  Since then the industry has undergone no less than four updates of the standards.  While new elevators have always had to conform with the most current standards, it is the older elevators in the State that may need some updating.

    This review is an important step in the rules amendment process.  The next step will be a public hearing to allow public comment about the proposed rules.  The current step is meant to make sure rules amendments consider the impact on small business and make appropriate accommodations as required.  As safety is the number one issue at the Hawaii Occupational, Safety and Health Division, this usually means what is good for one is good for all.

Equality and the Hawaii Family Leave Law

In the news  
     The last two weeks much of the focus of the local news has been on the status of the 2nd Special Session, that was convened to bring State law in line with recent federal developments (The overturning of section 3 of the Defense of Marriage Act)  and provide equity to Hawaii residents.  The Hawaii Civil Rights Commission, an attached agency to the Department of Labor and Industrial Relations, provided testimony in support of the measure. The Governor signed the measure on November 13, 2013, and it became Act 1, 2nd Special Session 2013.  The law becomes effective December 2, 2013.

     The previous statuses of Reciprocal Beneficiaries and Civil Unions have somehow paved the way for whatever struggle existed in assuring equal rights since the issue was raised in Hawaii back in 1991 when same-sex couples challenged the Hawaii Director of Health on being denied a marriage license (See Baehr v. Lewin, 74 Haw. 530, 1993).  Eighteen years ago, the majority report of the Commission on Sexual Orientation and the Law came to the conclusion that Act 1 realized this week.

    The Governor has provided an F.A.Q. about the effects of the Hawaii Marriage Equality Act.

Hawaii Family Leave Law
      Will Act 1 have an effect on the work we do in Wage Standards? Not likely. The law our Division administers and enforces that brings into play a married couple is the Hawaii Family Leave Law, Chapter 398, Hawaii Revised Statutes (HRS). The Hawaii Family Leave Law has always had a broad interpretation of family that is reflective of our island ohana spirit. The number of complaints we take in on this law is less than 1% of our typical annual caseload.

Definition of "parent"
      As a reminder, Hawaii law is more expansive in the definition of "parent" than the federal Family Medical Leave Act.  In Hawaii Family Leave Law the definition of "parent" includes "in-laws" and grandparents which the federal law does not.

     See: 398-1, HRS  "Parent" means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

     It makes one wonder, is this fodder for another in-law joke?  No comment.

Lactation breaks and posting requirements went into effect July 1, 2013

     Act 249, Regular Session 2013, was signed into law and became effective on July 1, 2013.  The Act requires employers to provide a private place (other than a bathroom) and the time for mothers in the first year of their child's birth, to express breast milk.   The law also requires employers to post a notice about nursing mother's rights.  The DLIR has provided a suggested poster that can be found on the DLIR website. 

Who's covered?
      This law protects all employees who need to express milk while at work within the first year of their child's birth.  This is a much broader application than a similar law under the Federal Labor Standards Act ("FLSA").  The FLSA provision applies only to those employees who are not exempt from the overtime law under FLSA.  The FLSA also provides that any State law offering greater protection has priority.  This means Act 249 is the standard in Hawaii for all employers.

All employers?  YES!
     The law does provide an opportunity for employers with less than 20 employees to prove that providing the space and time would impose an undue hardship.  Notice it is the employer who has to show the undue hardship if they choose not to provide the space and time required under the law. 

What kind of space and how much time?
      Act 249 specifies employers need to provide  "reasonable break time" which is not defined.  As well, the place provided must be "shielded from view and free from intrusion."  Employers who are struggling with how to provide this may reach out to proponents of the measure including  Breastfeeding Hawaii who have various suggestions and alternatives to assist employers with compliance.
     
Private right of action and penalties
   The DLIR does not enforce this law, it is enforced by court action, similar to Hawaii's whistleblower law.  Employers who fail to comply with opportunity to express milk law  may be sued in an appropriate court and be subject to a civil fine of $500 a day for violations.  In addition, employers may be liable for damages to the employee or employees who bring the private right of action in court.

What to do if employer and employee can not agree
   The law provides a legal remedy that allows a lawsuit in the appropriate court.  The Hawaii State Bar Association has a referral and information line (808-537-9140) that will provide free referrals to several attorneys that are familiar with this issue that will help you find a resolution.

Mediation may be the answer
     Employees or employers may reach out for assistance in resolving the matter through mediation.  Community mediation centers throughout the State provide professional workplace mediation.  To find out more about how this can help, you can contact a local mediation center near you.  Honolulu, Oahu - Mediation Center of the Pacific (808) 521-6767; Wailuku, Maui - Maui Mediation  (808) 244-5744;  Hilo Hawaii - Ku'ikahi Mediation Center  (808) 935-7844; Kamuela, Hawaii - West Hawaii Mediation Center - (808) 885-5525; Kauai - KEO Mediaton (808) 245-4077 Ext: 229 or 237.

Survey, Governor, and Paychecks

Governor Abercrombie visits the DLIR - Wage Standards Division (WSD).
 Photographed here with some of the WSD crew in Room 340, 830 Punchbowl St., Honolulu.
 

    So what does a survey, Governor Abercrombie and paychecks have in common?  These are all important events that happened in the Wage Standards Division last week.

Invitation to Participate in Prevailing Wage Surveys Sent Out by Snail Mail
       If you are a chlorinator, concrete mixer driver/booster driver, drapery installer, termite treater,  or water well driller, and work on public projects, you recently received an invitation to participate in an online survey from the Research and Statistics Office, our partners in the administration of the Wages and Hours of Employees on Public Works, Chapter 104, Hawaii Revised Statutes.  The five named classifications are the only classifications of work the Department independently surveys.  If you believe you should be included in the survey you must contact the Research & Statistics Office at (808) 586-9019 or by e-mail at dlir.rs.wrs@hawaii.gov as soon as possible because the survey ends August 2, 2013.
      The rest of the classifications of labors and mechanics listed in the wage rate schedules for public works jobs are dictated by the current prevailing trade union in that classification.  The determination that a particular trade union prevails was made by a federal survey some time ago.  Our partners in research and statistics have a good relationship with our federal counterparts because when we review the identified wage rates sometimes we find a discrepancy.  Because our law says the State rates can not be lower than the federal rates (see Section 104-2(b)(2), HRS), there will be a discussion on what amounts are allowable under the law to resolve our differences.
      The survey of the remaining five groups is an important survey to be able to determine accurate prevailing rates in those classifications.  If you're not participating and you work in those arenas you are depriving the industry of an accurate reflection of today's wage rates.

Governor visits WSD
     A week ago, Governor Abercrombie visited the Department of Labor and Industrial Relations on Oahu in Honolulu.  Wage Standards Division (WSD) was one stop on the tour.  We have fourteen employees working at WSD on Oahu right now and because the visit was during the summer and some were on vacation,  and the timing coincided with the lunch period, only half of the employees were available for the photo above.
     The Governor thanked everyone for participating in the economic program to get the State back on its feet.  He was referring to the pay cut everyone in our office experienced for the last 3 years as 100% general funded divsion.  While he was hesitant at the WSD meeting to commit to any specific funding issues, we had a chance to share with him the hole the Division is in that was created by the current back log of cases and the loss of unreplaced personnel over the years. We just hope he takes to heart the info shared on the charts and graphs and understands how having to make certain choices hurts both employees and employers in different ways and makes our effectiveness weaker, despite being able to celebrate some successes this year.

Paychecks returned to 2008 levels
     Last Friday, the State issued paychecks that restored 2008 compensation rates to employees who are "lagged" five days, that is those who were hired in the last century.   The 5% pay cut experienced in the last few years was restored for those general-funded employees.  Employees hired in this century will have to wait until August 5 to see their paychecks return to 2008 levels.  The State and counties are excluded from from the laws enforced by Wage Standards that require payment of wages within 7 days of the end of the pay period. (see 388-(2)(b), HRS)
      The good news is that units 3 and 4, of which we have 4 employees, will also see a little extra, as those who were due a step increase during that time will get it.  Unfortunately, the issue is not resolved because most of the WSD employees are Unit 13 and they will only see a restoration to the 2008 levels until there is some agreement in their negotiations.  We continue to be hopeful.
     So while sequestration is looming big in many jurisdictions we hope that on the see-saw of financial distribution of federal and state funding issues at the DLIR, it is our turn to be on the high side.  With unemployment at 4.6%, the lowest since September 2008, the outlook is encouraging.

Update on WSD 2013-01 regarding certain truck drivers in the asphalt paving Industry

    Last week I pointed to Memorandum WSD 2013-01, that explained our interpretation of certain truck drivers that were part of the asphalt paving industry.  As mentioned in the July 3 blog, the memo caused an immediate buzz and was the subject of many telephone conversations and meetings.  Several appeals have been filed concerning the memo so the Department has decided to suspend the implementation of the memo and has issued a notice to that end.   This will give the Wage Standards Division an opportunity to update Title 12 Chapter 22 of the Hawaii Administrative Rules to allow for a more public hearing to clarify this issue.  Updating the rules is a project that has been on the Wage Standards Division plate for a while and now is the perfect opportunity.  We'll keep you posted. 

New Links on the Website

Pay Statements     
      It's been a while since the last post and everyone in Wage Standards has been working hard to put some of the legislation that has passed this session into manageable ways to understand it.  Act 70, Relating to Wages  requires employers to provide additional information on the pay statements issued to employees. 

        Although the effective date of this law is not until January 1, 2014, we understand that many employers like to plan ahead.  While the law does not require a specific form, in articulating our interpretation it was just easier to provide a sample to explain what is required rather than repeating the narrative of the law.  The link to the information about Act 70 along with a sample pay statement can be found on our website under "Guidelines" under "Wage Laws".  There is a link to it here.

Truck Drivers on Asphalt Paving Public Works    [Note: July 10 notice suspended implementation]
      A second item we've been working on is a guideline issued to contracting agencies and contractors about the treatment of truck drivers when the spreader box or paving machine method is used for asphalt paving construction public works.  This issue has generated several questions about whether or not this type of work is included work to be reported on the certified payrolls required in construction of public works.  WSD 2013-01 will provide consistency and continuity to the enforcement of the law.

    This guideline was just posted yesterday around lunch time and we have already received several phone calls inquiring about it.  This only serves to reinforce that it is a subject that needed clarity. The link to this guideline can be found on our webpage under "Guidelines" under "Chapter 104" or you can access it by clicking here.


Other links we are still working on.
     Further developments on measures signed on July 1, 2013 by Governor Abercrombie will be forthcoming and they include:
     Senate Bill 535, CD1 (Act ____, Session Laws of Hawaii, relating to Labor, extending minimum wage and overtime protection to domestic service workers, effective July 1, 2013.
     House Bill 1068 CD1 (Act ____, Session Laws of Hawaii ), is aimed at assisting human trafficking victims, effective January 1, 2014.
     Finally Senate Bill 532, CD1 (Act ____, Session Laws of Hawaii) provides breast-feeding mothers in the workplace the time and place they need.  While this is a provision the Department will not enforce, having worked with the community on the legislation we will collaborate in developing suggested notices for employers that would meet the standard in the law.  This law was effective July 1, 2013.