Temporary position available now

 Intake and Certification Branch Chief
     The Wage Standards Division has a temporary 89-day position available for the Intake and Certification Branch Chief.  This person is responsible for receiving all the complaints from the public,  overseeing all child labor certifications (permits), including variances, answering inquiries over the phone and email, making recommendations for special minimum wage certificates, waivers of bi-monthly payments and requests for extended time to issue paycheck after the end of the pay period.

       The education requirement is a four year degree from an accredited college, with at least one bookkeeping/accounting class or comparable experience.
       The work experience element requires three and one half years in labor law related work, ideally with some construction background (that would assist in the prevailing wage classification determinations.)

     I suspect that someone working in human relations of the construction industry that handles wage and hour, payment of wages issues, Hawaii family leave law, and the prevailing wage law (Chapter 104, HRS), would be a good candidate.

Why only 89-days?
    The 89-day period is meant to allow the Division to fill the vacancy while preparing the documentation for the formal offering of the position.  Anyone who is hired for the 89-day position will still have to apply for the permanent offering when it is issued.  The permanent offering will be a civil service position that is subject to all the civil service requirements.

    The 89-day appointment is not subject to the civil service requirements and does not have any benefits attached.  The advantage of working in the 89-day position is that during the formal civil service process the 89-day worker will have a more intimate knowledge of the position that may benefit them in the formal civil service process.

How do I apply?
   Applicants must fill out a non-civil service application, and may submit their resume to me, at pamela.b.martin@hawaii.gov and I will forward it to the personnel office. Note the job title you are applying for is Labor Law Enforcement Specialist IV, Intake and Certification Branch Chief, and the position number is #1628.  Be sure to check "89-day hire" at the top of the page and  include all your relevant experience on the application or an attached sheet.  Sometimes just a resume is insufficient to describe with specificity your knowledge, skills, and abilities. The position is a level SR-22 with  a starting salary of $4,088 a month.

Why is this position open?
     Like many other agencies and private businesses, the Wage Standards Division has been subject to the graying of our Division and our much of our senior staff has retired or been promoted without an adequate number of lower level personnel to fill the gaps.  These opportunities are few and far between because the civil service requires us to first offer senior positions to those already working for the State.  If you are interested in this position,  please submit an application and any other supporting documentation as soon as possible.  Thank  you, we look forward to hearing about your skills.

FLSA New Overtime Regulations Apply in Hawaii?

(See Sept 5, 2017 post for an update on this issue.)
Do the New FLSA Overtime Regulations Apply in Hawaii?
 Yes for employers or employees subject to the Fair Labor Standards Act (FLSA).  Generally, employers with an Annual Dollar Volume (ADV) of at least $500,000 or engage in interstate commerce are subject to FLSA.
 
Probably not for smaller businesses that gross under one-half million dollars and limit their business to Hawaii.

What are the new FLSA overtime regulations/rules?
The regulations have increased the salary thresholds from $455 per week to $913 per week  for eligibility to be exempt from overtime .  Good for employees, more expensive for employers because any executive, administrative, or professional employees that may have been exempt from overtime may not be unless their salary is at least $913 a week.  Those previously exempt with salaries less than $913 week, will now be eligible for overtime for hours worked after 40 hours a week.

When are the  new regulations in effect?
The new rules won't be in effect until Dec. 1, 2016.  So you have six months to figure it all out.

Where can I learn more about it?
The US DOL is having some webinars to help people understand what this means to them.  The webinars are early 7 a.m. Hawaii Standard Time, and they are free.  Register here:
https://www.dol.gov/whd/overtime/final2016/webinars.htm

Working for Hawaii

There was plenty of interest in the dozen positions DLIR was recruiting for.

Our personnel office did a great job putting together the presentation and

the take away information for potential applicants

I participated in the Job Fair at the Capitol last week (That's me with the pony-tail).  WSD is still recruiting for one Labor Law Enforcement Specialist (LLES) position on Oahu, and we expect to have a vacancy in Kauai in early 2017.  I am always impressed with the range of qualified individuals who appear, what I am surprised at is the lack of understanding on how you get hired for a State civil service job in Hawaii.  I have worked in public service  for the people of Hawaii for about 26 years, part of that time as an exempt employee and part as a civil service employee.  It has taken me  a long time to figure out some of the most basic concepts, so I'd like to save potential employees some anguish and share some tips on how the State civil-service process operates in hopes that some very qualified people explore these opportunities  little bit harder.

Civil Service
There are usually lots of vacancies in the State, just go to the Department of Human Resources and Development's (DHRD) job site and you can see the list of all types of jobs.  Today the list showed 265 civil service jobs, the job we're recruiting for is there as of the writing of this blog, and still labeled "new", but was posted April 12.  Usually jobs have a limited open window, generally about 2 weeks.  That means an open job could be posted and removed in 2 weeks, so if you aren't checking regularly, you might miss the job of your dreams.  Our LLES position is also posted on our Department of Labor and Industrial Relations (DLIR) website because it is a position exclusively found at the DLIR, unlike an Office Assistant position which can be found in all departments and agencies so you need to apply at the State DHRD site.

The application, whether on the Department website or the DHRD website can be lengthy and is the main piece of information that first evaluators will determine whether or not you meet the minimum qualifications (MQs) for an interview.  First evaluators are human resource individuals, so may not have the subject matter expertise someone in that particular area may have, so taking the time to fully explain your responsibilities to show you have the Knowledge Skills and Abilities (KSAs), is worth it.  Be sure to specifically correlate your knowledge, skills and abilities with the position KSAs with examples. If you get on the interview list,  someone will contact you to set up a time, you'll be interviewed most likely by a panel of three.  The questions and grading of the practical exam, if there is one, are reviewed by the personnel office and an offer is made to the highest point-getter, assuming a minimum scoring threshold is reached.

Another important thing to understand about civil service jobs is that most of the higher positions are first offered internally to employees already working in the civil service system as opportunities for promotion.  If you really want a career in public service take the lower job, get in the system and then you can progress from the inside through Internal Vacancy Announcements (IVAs). Most positions are in series, like our LLES.  We generally have to hire from the outside at the entry level LLES I and then train individuals through the series to its full potential LLES IV.  Our series training usually takes at least 2 1/2 years to go from a LLES I to LLES IV.  Other positions may have different training periods. 

The pay scales and series descriptions can be found on the DHRD website under Classification and Compensation page.  See Classification Specification and Minimum Qualification Requirements.  Compensation is based on the determined Salary Range (SR), our LLES positions range from SR 16 for LLES I to SR 22 for LLES IV, which currently correlates to $38,772 to $72,648, annually.  These figures do not incorporate benefits which can be found on the DHRD website as well. (Note the retirement program currently takes 8% from an employee paycheck towards their individual retirement, returnable if you leave before you are vested or eligible for retirement.)

Exempt
Positions exempt from civil service usually don't have as rigorous a hiring process, and more closely resembles the private sector.  Exempt positions are also not part of the union but usually mirror many of the benefits that were collectively bargained for by the union and are usually "at-will" employees.  These are the type of positions that you may want to provide your resume to the head of the agency or person recruiting.

Finding open exempt positions is not as easy as the civil service positions, some may be advertised on the DHRD site, although most will have notices on the agency website or be word of mouth.  I was hired in my first State of Hawaii exempt position after cold-calling the legislative reference bureau (LRB) and asking about opportunities. I started working for them shortly thereafter as a part-time temporary job-sharer that lasted five years before I took a full time job with LRB.  So my advice is to make contacts in places you think would be a good fit for you and keep checking in.

A Rewarding Career
Whether you're looking for a first job or a change in career, working for the people of Hawaii can be a rewarding career.  Stay positive and ask for assistance.  The DLIR has a whole Division dedicated to Workforce Development that provides job search help and job training.  Contact them to see if you qualify for their assistance programs.  The 24/7 HireNet is always available free of charge.  Looking forward to meeting the new hires in the elevators!

Prevailing Wage Weekly Requirements in Hawaii

Weekly filing of certified payrolls required on public works construction projects
Hawaii's prevailing wage law, Wages and Hours of Employees on Public Works, Chapter 104, Hawaii Revised Statutes (HRS), sometimes referred to as "Little Davis-Bacon" is similar to the federal Davis-Bacon law but different in some regards as well.    Both Hawaii Chapter 104, HRS and the Davis Bacon law  require certified payrolls to be submitted to the contracting agency on a weekly basis.  See Section 104-3(a), HRS, 29 CFR 5.5(a)(3)(ii)(A).  Certified payrolls must report the actual amount paid to the laborers and mechanics for the hours worked.

 Weekly payment required to laborers and mechanics on public works construction projects
All labors and mechanics working on the construction subject to Chapter 104, HRS, must be paid weekly. The law goes on to require the payment be within five working days of the end of the work week.  See Section 104-2(d) , HRS, 40 USC 3142(c)(1).     The pay period of one work week is determined by the employer and can be any set seven consecutive days.  Working days are considered Monday through Friday, so when counting five days from the end of the pay period, Saturdays, Sundays and State holidays are not counted. See Hawaii Administrative Rule 12-22-13.

Example how certified payrolls should be filed to be timely
An employer sets the work week from Sunday to Saturday, payment is due to laborers and mechanics the following Friday.  Certified payrolls should be filed on the same Friday as the payments are due to the employees. In essence it is a public pay statement.

If an employer has a work week from Monday to Sunday, payment is still due on Friday, five working days after the end of the weekly pay period.

If an employer has a work week from Tuesday to Monday, payment is due the following Monday, five working days after the end of the work week.  Certified payrolls should be submitted by the following Monday as well.

General contractor accommodations
For enforcement purposes general contractors may submit certified payrolls to the contracting agency seven days after the weekly paydate to allow the general to collect and review certified payrolls of the subcontractors, this type of weekly schedule will look like this:

Week Ending:	Pay Date	Remarks
April 2		Work begins on the project during this week.
April 9	Friday, April 8	(1)   Pay date for work performed in the previous week ending April 2. (2)  Subs submit certified payrolls to General for work performed week ending April 2 (3)  Work is also performed during this week.
April 16	Friday, April 15	(1)   Pay date for work performed in the previous week ending April 9. (2a)  Due date for all certified payrolls to be submitted to contracting  agency  from the prime with all subcontractors for work performed during the week ending April 2. (2b)  Subs submit certified payrolls to General for work performed week ending April 9 (3)   Work is also performed during this week.
April 23	Friday, April 22	(1)   Pay date for work performed in the previous week ending April 16. (2) a  Due date for all certified payrolls to be submitted to contracting agency from the prime with all subcontractors for work performed during the week ending April 9. (2) b  Subs submit certified payrolls to General for work performed week ending April 16

Different requirements then general rule.
Note that the general rule for payment to employees is at least twice a month.  See Section 388-2. HRS.

For more information
See Wage Standards Division Prevailing Wages on Public Works page.
See  Fact sheet 66 provides general information for the Davis-Bacon law.

 

Recent Updates on Tip Pooling and Paid Leave

This week there were two important events that happened for the Wage Standards Division (WSD).  1. A 9th Circuit decision sided with the United States Dept. of Labor (USDOL) in their tip pooling appeal (see Oregon Restaurant v Perez; Cesarz v Wynn Las Vegas, February 23, 2016), and 2. The USDOL opened a comment period on a proposed rule for federal contractors that are now required to provide 7 days of sick leave to employees.

 9th Circuit restores tips to employees
The 9th Circuit issued their opinion in the appeal of two cases with similar issues, the appeal by the USDOL in the Oregon Restaurant v Perez, Secretary of Labor, and the Cesarz v Wynn Las Vegas.  The appellee in the Oregon case was the USDOL and the appellees in the Wynn Resort case were the employee casino dealers represented by Joseph Cesarz  for the class of employees similarly situated.

 The Oregon Restaurant and Lodging Association had sued the USDOL objecting to a rule (29 CFR5 31.52)  stating that only employees who are regularly tipped could participate in a tip pool.  The U.S. District Court of Oregon had sided with the Oregon Restaurant and Lodging Association, stating that tips belonged to the employer.  The 9th Circuit disagreed with the District Court of Oregon, and restored the practice of requiring tip pools to be legal only if shared with regularly tipped employees by declaring the USDOL's rule valid.

The casino dealers and servers at the Wynn Las Vegas had sued their employer in U.S. District Court of Nevada to keep their tips and not share their tips with other employees who were not regularly tipped, for example cooks and supervisors.  The District Court of Nevada sided with the employer allowing the tips to be parceled out as the employer saw fit.  The 9th Circuit disagreed with the District Court of Nevada and reversed the lower decision restoring the tips to the employee casino dealers and servers that earned the gratuities.


Notice of proposed rule for paid leave.
President Obama may be in his lame duck period, but he is continuing to advocate for employees in areas where he can still exercise control.  Through Executive Order 13706, issued September 15, 2015, President Obama has required companies that contract or subcontract with the federal government to provide at least 7 days of paid sick leave for the employee's illness, or for the care of sick family member, or for addressing certain concerns caused by domestic violence. An overview of the proposed rule can be found on the USDOL website.

 The proposed rule comment period opened yesterday, February 25, 2016, and will close March 28, 2016.  The proposed rule and the procedure to comment can be found on the USDOL website.

Why should Hawaii care about these two events?
Regarding the 9th Circuit case on tip pooling, Hawaii has to care because the federal rules are applied when there is no specific Hawaii law provided.  There are no specific statutes or rules that direct who can participate in a tip pooling arrangement, only rules about how a tip pooling arrangement can apply to a tip credit situation, (See Hawaii Administrative Rule 12-20-11).  For a period of time the WSD has had to modify responses to claims by employees of shared tip pools and based on this 9th Circuit case we will be following the federal standard that only regularly tipped employees may participate in a tipped pool arrangement.

The proposed rule will implement Executive Order 13706, and all federal contractors, including those working on federal projects in Hawaii will have to comply.  Hawaii has required Temporary Disability Insurance, Chapter 392, Hawaii Revised Statutes.  The TDI law is commonly referred to as Hawaii's sick leave law because it provides partial wage replacement for employees who become ill or are injured outside of the job and not covered under workers' compensation.  Federal contractors would be wise to comment on the proposed rule and how the TDI contractors provide their employees in Hawaii will be accommodated under the Executive Order.  As the order requires 7 days of sick leave, and the TDI law has a waiting period with only a partial wage replacement, will this suffice? 

What's next?
The 9th Circuit decision in Oregon Restaurant was decided by a 3 member panel in a 2 to 1 decision with the dissenting judge writing that the majority decision was against precedent and to overturn circuit precedent a full en banc bench should hear the case (en banc means eleven 9th Circuit judges, not just three).  This suggests that maybe this case is not quite over.

The federal rule's treatment of TDI for federal contractors with Hawaii employees may be an insight into how proponents of paid leave issues that keep reappearing in legislative measures will be resolved.  At this writing SB 2961 SD1 Relating to Family Leave, is still alive in this 2016 session. While this measure does not invoke TDI for paid leave of an employee's illness as some of the past measures have, it proposes a new system to provide paid leave for the care of a sick family member as the Executive Order requires.  Federal contractors would be wise to consider how their TDI will stack up against the Executive Order. 

Will keep you posted if we hear anything.

Minimum Wage Increases January 1, 2016 to $8.50

Minimum wage increases   
Back in 2014, the legislature passed   Act 82 Session Laws of Hawaii 2014,  that raised Hawaii's minimum wage incrementally to $10.10 per hour by January 1, 2018.  As of January 1, 2016, the minimum wage is raised to $8.50 per hour.  January 1, 2017, the minimum wage goes up to $9.25 per hour.


Tip credit increases
As part of the minimum wage increase, the tip credit was also increased.  As of January 1, 2016, the tip credit is 75 cents.  The tip credit remains at 75 cents even when minimum wage increases to $9.25 and $10.10.

Employers with regularly tipped employees who make at least $20 per month in tips ( See Hawaii Administrative Rule 12-20-11), may be eligible to take the tip credit of 75 cents if the employee's tips plus the wage paid equal $15.50.  This means that with minimum wage of $8.50, an employer can pay wages of $7.75 if the tips of the employee are equal to $7.75 per hour. Additional records are required to be kept to take this credit, see Hawaii Administrative Rule 12-20-12).

If employees earn less than $7.75 per hour in tips, the employer may be eligible to take a tip credit less than 75 cents.  A tip credit guideline published on the Wage Standards Division website provides the details and calculations of these scenarios.  See Exhibit 3, ( page 4) for 2016, Exhibit 4 (page 5) for 2017 and Exhibit 5 (page 6) starting January 1, 2018.

Other Resources
Minimum wage poster
Wage and Hour Law, Chapter 387, Hawaii Revised Statutes
Wage Standards Division Website:  labor.hawaii.gov/wsd

Painting and Road Striping Classifications on Hawaii State and County Projects

    

Painter - Thermoplastic striping

    There was a workshop last week on the Wages and Hours of Employees on Public Works Law, Chapter 104, Hawaii Revised Statutes (HRS).   A question that came up during the course of the session was very similar to questions we have received in the recent months.  It may be related to all the resurfacing of the roadwork going on  in the City and County of Honolulu.  The query asks what classification are the workers who are putting the lines on the road?

     Generally, if someone is painting, they are painters.  And this situation follows the general rule.  An excerpt from a recent decision letter we issued in August 2015 is below.

           "This is in response to your . . .letter . . . regarding the classification for placing pavement markings on highways, parking lots, play courts, airport runways and taxiways, on projects subject to Chapter 104, HRS.

           The proper classification for striping and/or pavement markings on roads, highways, airport runways and taxiways, is Painter. This also includes sweeping the pavement, hand casting glass beads onto pavement markings, carrying paint cans, and other related work to the striping and/or pavement markings.

          The proper classification for installing permanent raised pavement markings (reflectors) on any surface is Laborer II.

           The proper classification for thermoplastic striping and/or pavement markings on parking lots, play courts, and driveways is Painter. Pavement striping using a method other than thermoplastic striping may be performed by a Laborer II."

          Note that thermoplastic striping is always done by Painters no matter where the painting or road striping is.  Some painting i.e. by brush or spray painting of areas like parking lots or play courts or driveways may be done by Laborer II.