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Draw the Law, People Issues VI: Paying Employees

Well, it’s Friday and since many people tend to get paid at the end of the workweek it’s a good day to talk about Wage and Hour laws.
So I’ll do a brief run-through of the Fair Labor Standards Act (FLSA), Hawaii Wage and Hour Law (Chapter HRS 387), Payment of Wages Law (Chapter HRS 388). So Let’s get to it.

Fair Labor Standards Act

The US Department of Labor, Wage and Hour Division, is the governmental agency responsible for handling FLSA issues.  It acts through the following means: creation of rules and regulations, issuance of agency opinions, conducts inspections and investigations, handles complaints, and can institute legal proceedings for matters relating to pay issues.

FLSA is going to apply to employers who have employees engaged in the act of commerce (so almost everyone). The main requirement of the FLSA is that employers are to a pay minimum wage ($7.25) to employees and to pay overtime compensation to employees who work in excess of forty(40) hours per week.  In addition, employers are to maintain extensive time records of the hours worked by their employees.  In fact, recordkeeping requirements show up in a lot of labor laws, so much so stay tuned to this blog for a discussion on that and handbooks in the future.  In addition, I do conduct seminars and training on the matter.

Anyway, some final points to take away FLSA it also regulates heavily the use of minors (in general, those younger than 16 years old) as employees and that the following categories of employees are exempt from the application of FLSA:

  1. bona fide executives;
  2. administrators;
  3. professionals;
  4. computer employees;
  5. outside salespeople;
  6. as well as some industries are exempt from FLSA provisions.

Hawaii Wage and Hour Law

The Hawaii version of the FLSA can be found in Chapter 387.  There are many overlapping and similar provisions.  The main requirements are as follows:

  1. pay minimum wage (both federal and state is $7.25) and overtime to employees who work forty (40) or more hours per work week;
  2. maintain records – detailed time and pay for each employee;
  3. provide the employees detailed explanations in their paychecks of the time worked and paid;
  4. posting notice from Hawaii Department of Labor and Industrial Relations (DLIR) in a conspicuous location;
  5. do not discriminate on the basis of race, religion, and sex in the payment of wages;
  6. also regulates child labor (which are those that are under the age of 18, see also HRS Chapter 390);
  7. applies to all employers except the state and federal governments.

As with the FLSA, there are exempted are categories, such as employees guaranteed compensation of $2,000 or more per month, and specific groups like agricultural workers. DLIR has similar to powers as the DOL, but with respect to the enforcement of this state law.  The specific DLIR agency is the Wage Standards Division.

Hawaii Payment of Wages

Whereas the prior two laws were concerned about who is protected by certain pay requirements, the Payment of Wages Law (HRS Chapter 388) is focused on the how.  The requirements of this law are as follows:

  1. timing of payment for employees that resigned/terminated/died;
  2. determines how to do withholdings from employees’ wages;
  3. regulates payment for vacation, sick leave, and severance pay;
  4. employers must notify employees change in pay rates;
  5. and once again there is a posting of notice requirement from DLIR.

If HRS 387 applied to you, then 388 will also effect you. This law is also enforced by the same Wage Standards Division at DLIR.

Final Words

Here are some other things to make note of:

  • If you own a restaurant or have a situation were your workers are getting by via tips, please be aware that Hawai`i uses a more restrictive tip credit of twenty-five cents per hour and not the federal $2.13 per hour tip credit
  • The basic calculation for overtime payment is one-and one-half times the employee’s regular rate for ALL hours worked in excess of the forty (40) hour workweek under both the FLSA and Hawaii Wage and Hour Law.
  • Finally, we calculating the amount of hours worked, we use a “suffered or permitted” to work test.  The employer can give permission implicitly or explicitly. An employer is not liable for the time worked by an employee if they have no knowledge or did not give permission to it. To determine this it will be asked if:
  1. the employer was aware that the employee was working during the time periods in question; and
  2. the employer permitted the employee to do so.
  • If you have knowledge that they worked, but it was without permission you MUST pay them, but you can discipline them for working without your permission.

If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Draw the Law, People Issues V: Making things Safe for Employees, OSHA and HIOSH

Earlier this week, I discussed how Hawaii Act 123 of 2011 increased the maximum penalties by 10% for HIOSH violations.  Well, today we shall cover the more substantive parts of the law.

General Overview

The Occupational Health and Safety Act (OSHA) and the Hawaii Occupational Safety Health Law (HIOSH) primarily cover an employer’s responsibility for keeping a safe and healthy work environment.

OSHA falls under the US Department of Labor and is the responsibility of the Occupational Safety and Health Administration.  They set the standards, enumerated by an extensive list of regulations.   The Department, through the Administration agency, is responsible for everything involved with OSHA. This includes activities like site inspections, issuing citations, conducting hearings, and directing/enforcing remedies.

What OSHA Requires

Under OSHA employers must:

  1. furnish each employee a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm;
  2. comply with occupational safety and health standards set forth by the regulations promulgated under the law;
  3. keep records as prescribed by the regulations (such as records of accidents, injuries and deaths);
  4. post notices informing employees of their protection and the employers’ obligations under the law; and
  5. refrain from discriminating against employees who exercise their rights under the Act.

The employers that are covered: business affecting commerce (includes professional, agricultural, nonprofit and charitable organizations) –  state and federal governments are excluded.

HIOSH

Several states, including Hawaii, have state-level plans that work through the incorporation of OSHA language, to administer the law.  So while Department of Labor and Industrial Relations (DLIR) may enforce the safety and health violations through the HIOSH office, federal OSHA regulations are often cited when issuing fines or penalties against non-compliant employers.

Differences: the Hawaii version specifically states that employers are to provide employees with safety devices and safeguards in addition to the other requirements.  In addition, ALL employers are to comply with the law.

I will now touch upon some more salient features in a quick, general way, as the law is much too large in scope to cover in a post.  The complexities of compliance with OSHA and HIOSH are important, and you may want to consider a formal training or discussion with attorney or expert.

Safety and Health Program

HIOSH requires all employers with 25 or more employees to maintain a written safety and health program.   If you are in construction and have fewer than 25, but do work that is worth an excess of $100,000 you must have a written program as well.

Recordkeeping

There are many standards, but one of the most applicable standards requires employers with more than 10 employees, to maintain a chronological log of recordable occupational injuries and illnesses with a detailed supplementary information about each occurrence.

Reporting

The purpose of that recordkeeping, is that for injuries and illnesses that result in fatality, hospitalization or 3 or more people, or property damage in excess of $25,000 must be reported to HIOSH.  This includes situations where the employer has fewer than 10 employees.

Posting and Labeling

Every employer has to place in a prominent location information regarding employees’ rights and obligations under OSHA, an annual summary of recorded injuries and illnesses.  Other posting requirements are hazard signs and the proper labeling that entails.

Training and Education

Generally, every employer has to establish some sort of occupational safety and health program, which includes training to provide employees instructional information on safe work practices.  I’d like to bring up workplace violence here because a lot of people have the impression that OSHA and HIOSH is only situations with construction, chemicals, or the like, but the specifics of the law is that the employer is to create a safe environment for the employees.  This includes a work environment free from violence.  Thus, criminal conduct or dangerous personnel situations also do fall under workplace safety.  Therefore, when you consider training and education it should be much broader than instructions on yellow hazard signs and warning labels.

Final Words

There is more to say about HIOSH and OSHA, but those specifics can be handled by an attorney, specialist, or compliance officer.  There are resources available on both the OSHA and HIOSH websites.  So check them out.  Ultimately, the point of all this is so that employers are responsible for keeping their workers safe and to do that requires a lot of planning and implementation of procedures.  The goal is to pass safety inspections and avoid being cited or even possible imprisonment (check out this week’s Law in the Brief).

If you have more questions about the inspecting and monitor, dealing with the Department, appeals, and in general further details of the law ask an attorney or contact the department.  If you liked this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Draw the Law: People Issues, Part II: Overview on Employee Law Compliance

So the option that won from the poll was to do a brief overview of employee legal issues.
As it is a huge topic, I will only really briefly touch upon large aspect of the employer-employee relationship.   To keep this as brief as possible, I am going to focus on just employment of non-unionized employees.  In addition, today’s focus will be about how to think about dealing with employee legal issues with a HR perspective.  I will follow-up with a couple more Draw the Laws that focus on narrower aspects of employment law it will also be poll-based.

The Puzzle that is Employment Law

In general, employment law cares about the interactions of the business with its employees.  Both the state and federal governments have created laws to regulate hiring, workplace conditions, wages, and the like.  Due to our system though we have many laws that overlap, further exceed, or just contradict with each other.   In many times, the HR function of a business is playing puzzle-maker trying to get pieces to fit together that do not quite match.

So there are multiple ways to try and figure out how to be in compliance with employment laws.  Here are some ways to cope with dealing with the law.

Size

If you are a small business, generally the owner-operator is handling the HR function (along with marketing, operations, and everything else).  Due to the fact that you are so tiny, many laws do not affect you, as the have an employee threshold.   You can kind of think of the business as a growing bubble, as you add employees the more laws the bubble comes in contact with and must comply with.  For example, most of the federal anti-discrimination laws cover employers of fifteen or more, whereas Consolidated Omnibus Budget Reconciliation Act (COBRA) is 20 or more, and something like Family Medical Leave Act is 50 or more.

Other times a law will cover an employer based on its gross annual volume of business, such as Fair Labor Standards Act (FLSA), Equal Pay Act (EPA), and the National Labor Relations Act (NLRA).

Finally, there are laws that always affect you no matter how small or big you are like Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and Occupational Safety and Health Act (OSHA).

Timing/Process

Where are you in the process of dealing with the employee?  Are you hiring a new employee?  Did you hire the employee and are now training them?  Is this an older employee that has been with the company for a while?  Or is this an employee you may want to terminate?

Certain laws come into play depending on what stage of the process you are in.  In this case, you can kind of think of the laws interaction with your business in stages with on and off switches representing what you can and cannot do at certain stages of the process.

Never Enough Time

I have barely scratched the surface of employment law, but I hope today’s Draw the Law has helped give you a couple ways to think about them.  In general, it does seem there is never enough time for dealing with this type of law.  However, there are some great resources on the web, and I have some links on my site to help out.

Plan Ahead: Policies, Procedures, and Handbooks

A business’s best tool when dealing with employment laws is plan ahead.  It will save you some stress and worry later.  For me (as seen by these Draw the Law) I like to diagram and sketch things out, as it gives you a kind of map to navigate the issues. If you feel you do not have the energy or skills it is best to hire someone to help develop strategies for you to deal with your worker issues, as noncompliance can lead to penalties by the government and lawsuits from employees.  Due to the complexity of employment laws an attorney can advise and help draft your handbooks on polices and procedures.

As always if you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

‘Justice Delivered in All Sizes’ CB Article

Please check out my contributor article about how we can better serve justice in Hawaii and also follow Civil Beat.  They are a great civic investigative forum of news and insight into the daily beat of Hawaii.
The Links:

My article

Civil Beat Main Page

LATEST UPDATE (5/5/11 @ 5:01PM):

KHON2 also posted a little blip from me about Wrongful Termination and Actionline.  Click here to check it out.  I will be doing a post on a legislative update about some of the changes to employment law in a couple of days.  Notably, the protection of gender expression protection, labor trafficking, and domestic violence as a protected class.  HR you might want to take a peak!

In the meantime, prepare those landlord-tenant questions for tomorrow’s last day on Actionline from 11AM – 1PM.  Finally, if you did not get a chance to call in by topics remember the Young Lawyers Division will be putting up free legal clinics on Saturday from 10AM – 2PM.  For further information please check out this link.