Hawaii-2013-SB1263-Introduced

SECTION 1. The legislature finds that chapter 390, Hawaii Revised Statutes, protects the right of minors, who are at least fourteen years old but under sixteen years old, by providing an interval of at least thirty consecutive minutes for a rest or lunch period for no more than five continuous hours of work. Likewise, the legislature finds that, although Act 172, Session Laws of Hawaii 1999, prohibited employers from disallowing an employee to express breast milk during any meal period or other break period required by law, neither state law nor federal wage and hour law currently requires employers to provide employees sixteen years of age or older any meal period or rest break, no matter how many consecutive hours the employee may be required to work. Employees who must work a full day or eight-hour shift or more, regardless of age or sex should not be denied a reasonable period of time to rest and consume a meal, as is commonly required by other states such as California, Oregon, and Washington.

SECTION 2. Section 387-3, Hawaii Revised Statutes, is amended to read as follows:

"§387-3 Maximum hours. (a) No employer [~~shall~~], except as otherwise provided in this section, shall employ any employee for a workweek longer than forty hours unless the employee receives overtime compensation for the employee's employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which the employee is employed.

For the purposes of this section,

(1) "Salary" means a predetermined wage, exclusive of the reasonable cost of board, lodging, or other facilities, at which an employee is employed each pay period; and

(2) If an employee performs two or more different kinds of work for the same employer, the total earnings for all such work for the pay period shall be considered to have been earned for performing one kind of work.

(b) The regular rate of an employee who is employed on a salary shall be computed as follows:

(1) If the employee is employed on a weekly salary, the weekly salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be divided by forty[.];

(2) If the employee is employed on a biweekly salary, the biweekly salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be divided by two and the quotient divided by forty[.];

(3) If the employee is employed on a semi-monthly salary, the semi-monthly salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be multiplied by twenty-four, the product divided by fifty-two and the quotient divided by forty[.]; and

(4) If the employee is employed on a monthly salary, the monthly salary and the reasonable cost of board, lodging, or other facilities if furnished to the employee, shall be multiplied by twelve, the product divided by fifty-two and the quotient divided by forty.

(c) The regular rate of an employee who is employed on a salary and in addition receives other wages such as, but not limited to, commissions, bonus, piecework pay, and hourly or daily pay shall be computed in the manner provided in this subsection. As used hereinabove, the term "other wages" shall not include the reasonable cost of board, lodging, or other facilities.

(1) If the employee's salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, equal or exceed fifty per cent of the employee's total earnings for the pay period, the total earnings shall be reduced to a regular rate in the manner provided in paragraph (1), (2), (3), or (4) of subsection (b), whichever is applicable[.]; and

(2) If the employee's salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, are less than fifty per cent of the employee's total earnings for the pay period, the total earnings shall be reduced to a regular rate in the manner provided in paragraph (1), (2), (3), or (4) of subsection (b), whichever is applicable, except that the actual number of hours worked in the workweek shall be substituted for the final divisor of forty. Such an employee shall receive overtime compensation for employment in excess of forty hours in a workweek at a rate not less than one-half times the employee's regular rate.

(d) The regular rate of an employee whose compensation is based on other than salary shall be computed in the manner provided in [~~paragraph (2) of~~] subsection [~~(c).~~] (c)(2). The reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be included in computing the employee's regular rate. Such an employee shall receive overtime compensation for such employment in excess of forty hours in a workweek at a rate not less than one-half times the employee's regular rate.

(e) An employer,

(1) Who is engaged in agriculture and in the first processing of milk, buttermilk, whey, skim milk, or cream into dairy products, or in the processing of sugar cane molasses or sugar cane into sugar (but not refined sugar) or into syrup, or in the first processing of or in canning or packing any agricultural or horticultural commodity, or in handling, slaughtering, or dressing poultry or livestock; or

(2) Who is engaged in agriculture and whose agricultural products are processed by an employer who is engaged in a seasonal pursuit or in processing, canning, or packing operations referred to in paragraph (1); or

(3) Who is at any place of employment engaged primarily in the first processing of, or in canning or packing seasonal fresh fruits;

shall not be required to pay overtime compensation for hours in excess of forty in a workweek to any of the employer's employees during any of twenty different workweeks, as selected by the employer, in any yearly period commencing July 1, for employment in any place where the employer is so engaged. The employer, however, shall pay overtime compensation for such employment in excess of forty-eight hours in any such exempt workweek at the rate and in the manner provided in subsections (a), (b), (c) and (d), whichever is applicable, except that the word "forty-eight" shall be substituted for the word "forty" wherever it appears in subsections (b), (c), and (d).

(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.

(g) No employer shall require any employee to work more than a total of five hours without a scheduled interval of no less than thirty consecutive minutes for a bona fide meal period, as described in title 29 Code of Federal Regulations section 785.19; provided that a collective bargaining agreement does not otherwise contain express provisions for employee meal breaks; provided further that if an employee who is scheduled to work a total of six hours chooses, the employee may be allowed to work uninterrupted for five hours and thirty minutes without a bona fide meal period, to complete the scheduled work hours at least thirty minutes early. This subsection shall not apply to any employer who is the operator of a continuously operating facility that is regulated by an environmental permit; provided that an on-duty meal period is provided. This subsection shall not apply to an employer who is subject to title 49 Code of Federal Regulations part 395.

[~~(g)~~] (h) This section shall not apply to any overtime hours worked by an employee of an air carrier subject to Title II of the Railway Labor Act, 45 U.S.C. section 181 et seq.; provided such overtime hours are the result of a voluntary agreement between employees to exchange work time or days off."

SECTION 3. Section 387-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Liability to employee. An employer shall be liable to an employee for the following violations:

(1) Any employer who violates any provision of sections 387-2 and 387-3 shall be liable to the employee or employees affected in the amount of their unpaid minimum wages or unpaid overtime compensation, and in case of wilful violation in an additional equal amount as liquidated damages[.]; and

(2) Any employer who does not provide a meal break as required by section 387-3(g) shall be liable to the employee affected in the amount of one and one half times the employee's hourly rate of pay for each meal break not provided; provided that the one and one half times the hourly rate penalty shall be computed based on the employee's regular wage at the time the infraction occurred."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1263
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII