If you believe you’ve been deprived of the compensation to which you’re legally entitled, please contact the Lore Law Firm. Our overtime rights lawyers represent Hawaii employees who have been the victim of wage theft due to wage and hour violations and take cases on a contingent fee basis – no fee if no recovery of backpay.
Understanding Hawaii Wage and Overtime laws
Hawaii state labor laws differ in some respects from the federal Fair Labor Standards Act (FLSA) for issues like minimum wage and certain overtime pay rules relating to agricultural workers. However, for the most part, the federal law applies to just about every workplace compensation-related issue in the state.
For 2019 and 2020 the Hawaii minimum wage is $10.10 per hour. Prior years minimum wage amounts are:
- $8.50 per hour beginning January 1, 2016;
- $9.25 per hour beginning January 1, 2017; and
- $10.10 per hour beginning January 1, 2018.
Because the Hawaii minimum wage is higher than the federal minimum wage, employees in Hawaii are entitled to receive the higher state wage. Overtime pay calculations must also be based on at least the state minimum wage ($10.10 x 1.5 = $15.15 minimum per overtime hour).
Tipped Employees working in Hawaii may be paid less than the applicable minimum wage if the tipped employee customarily and regularly receives more than $20 a month in tips and the combined amount of wages and tips is more than the applicable minimum wage. As of January 1, 2018 the Maximum Allowed Tip Credit Towards Minimum Wage is 75 cents per hour, resulting in an Adjusted Minimum Wage Less Tip Credit of $9.35 per hour.
The current federal minimum wage is $7.25 per hour.
Employees who are paid sub-minimum wages have the right to sue their employer to collect the full amount of back wages due, plus twice the amount they were shorted as liquidated damages. The employer is also liable for the costs and reasonable attorneys’ fees incurred by the employee.
Note that the Hawaii Division of Labor Standards is not authorized by law to pursue an employee’s wage claim in Court. Instead, an employee is entitled to hire a private attorney to pursue an action to collect any wages due.
Hawaii state labor laws on overtime pay largely apply the FLSA standards and require employers to pay time and-a-half for all hours worked over 40 per workweek, unless an employee is properly classified as exempt.
On State or county public construction projects governed by Chapter 104, HRS, Wages and Hours of Employees on Public Works Law, overtime is required after 8 hours a day, and all hours on Saturdays, Sundays, and State holidays.
An employer doesn’t violate overtime laws by requiring employees to work overtime, (ie “mandatory overtime”), as long as they are properly compensated at the premium rate required by law.
When Overtime Doesn’t Apply
Most workers in Hawaii are entitled to overtime pay when they work more than 40 hours per week. In certain circumstances, however, there are exceptions.
Employees engaged in executive, administrative, or professional capacities (and paid at least $455 per week on a salary basis) are exempt from the overtime requirement. Note that new minimum salary requirements for overtime exemption take effect in January 2020 and increase the minimum salary threshold to $684 per week (or $35,568 annually). This change in federal law will also apply to most workers in Hawaii when making the determination of whether they are classified as exempt or non-exempt from the overtime pay laws.
Misclassification of Independent Contractors
While there are situations in which workers are legitimately running their own business and properly treated as independent contractors who are not entitled to receive overtime, employers are not allowed to mischaracterize employee roles to avoid paying overtime compensation.
Merely labeling a worker as an independent contractor, or even entering into a written agreement, is not enough to avoid the labor laws on overtime pay. While there is no single definition of “independent contractor” in Hawaii labor laws, there are several factors to be considered in determining if a worker in Hawaii is an employee or independent contractor (a/k/a 1099 employee)
If properly classified as an independent contractor under Hawaii law, workers are typically eligible for only the specific compensation bargained for in a contract.
Payment of Wages
Employees in Hawaii have the right to be paid:
- At least twice monthly on regular paydays designated in advance in cash, by checks convertible into cash, or with certain requirements, by direct deposit into the employee’s account at a federally insured depository institution or pay card
- Within 7 days after the end of each pay period
- Wages in full at the time of discharge or no later than the next working day or no later than the next regular payday if you quit or resign. However, if you give your employer one pay period’s notice of your intention to quit, you must be paid on your last day of employment.
Payment of Commissions
Hawaii Payment of Wages and Other Compensation Law requires every employer to notify employees in writing, at the time of hiring, of the rate of pay (if paid by commissions, the commission agreement), and of the day, hour, and place of payment. Until the conditions stipulated in the commission agreement are met, commissions are not be considered “earned.” However, once the conditions for earning a commission have been met, the earned commissions must be paid within seven days after the end of the pay period in which the commissions were earned.
Chapters 387 and 388, HRS, requires that the employee shall be paid all wages for all hours worked. If there is a dispute as to the amount of wages earned for the hours worked, the employer shall pay, without condition and within the time set by law, all wages, or parts thereof, conceded by the employer to be due, leaving to the employee all remedies the employee might otherwise be entitled to, as to any balance claimed. The acceptance by an employee of a partial payment shall not constitute a release or accord and satisfaction with respect to the disputed amount. Further, any release required by an employer as a condition to payment shall be void.
Reporting Time Pay / Show Up Pay
Under Chapter 387, HRS, Wage and Hour Law, an employer is required to pay for all hours that an employee is “suffered or permitted to work.” There is no provision that requires an employer to pay an employee for a canceled shift. An employer is not required to pay an employee who reports to work and is immediately informed that no work is available and the employee is allowed to leave. However, if the employee reports to work at his/her scheduled time and is permitted to wait for work before being informed that no work is available, the employer is required to compensate the employee, at the employee’s regular rate of pay, for the time spent waiting between the employee’s scheduled start time and the time the employee is sent home.
Breaks and Meal Periods
Hawaii law does not require employers to provide employees who are 16+ years old a break of any kind, including a lunch hour. These provisions are either left up to the discretion of the employer, can be agreed upon by the employer and employee, or may be addressed by company policy or contract.
Hawaii doesn’t require employers to provide workers with paid or unpaid vacation leave.
Many employers choose to provide vacation leave as part of a benefits packages to attract employees, however. In these situations, employers may set the policies, terms and conditions as to how and when such a benefit is used – including “use it or lose it” policies that state that terminating employees forfeit accrued but unused vacation time. However, any such policy must be clearly communicated to employees through handbooks or other published policies.
Statute of limitations
Hawaii’s deadline for filing an overtime claim adheres to the FLSA, which requires those seeking to recover unpaid back overtime wages file a lawsuit within two years from the date of the employer’s wage violation. So a lawsuit filed today would be able to seek recovery of back overtime for only the prior 2 (sometimes 3) years.
As an example, suppose you believe that your employer has failed to pay you proper overtime wages since January 1, 2016. Waiting until June 1, 2019, to file your lawsuit means you are only allowed to seek unpaid wages from June 1, 2017, to June 1, 2019.
The statute of limitations may be extended to three years if an employer’s violation of the FLSA was willful. An FLSA violation is deemed willful if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard.
Employees in Hawaii may also file a complaint for unpaid wages with the Wage Standards Division within one year from the time the wages became due.
On your side
At the Lore Law Firm, we represent salaried, hourly, and day-rate workers in an array of employment litigation matters, including unpaid overtime compensation claims in Hawaii. Our attorneys, and the Hawaii overtime law attorneys we associate with, are passionate about protecting the rights of workers and have helped recover millions of dollars in unpaid overtime wages for our clients. Contact us for a free and confidential review of your situation
Contact us for a free and confidential review of your situation.