REPORT TITLE:
Labor


DESCRIPTION:
Ensures that employees who are unemployed due to a labor dispute
shall not be disqualified for unemployment benefits if the
parties have reached an impasse and prior to a work stoppage an
offer is made to submit the dispute to binding arbitration.
Provides that where collective bargaining is in effect tip credit
may not be taken by an employer and counted toward minimum wage,
absent a clear written agreement.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           1558
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO LABOR.
 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 383-30, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "383-30  Disqualification for benefits.  An individual
 
 4 shall be disqualified for benefits:
 
 5      (1)  Voluntary separation.  For any week prior to October 1,
 
 6           1989, in which the individual has left work voluntarily
 
 7           without good cause, and continuing until the individual
 
 8           has, subsequent to the week in which the voluntary
 
 9           separation occurred, been employed for at least five
 
10           consecutive weeks of employment.  For the purposes of
 
11           this paragraph, "weeks of employment" means all those
 
12           weeks within each of which the individual has performed
 
13           services in employment for not less than two days or
 
14           four hours per week, for one or more employers, whether
 
15           or not such employers are subject to this chapter.  For
 
16           any week beginning on and after October 1, 1989, in
 
17           which the individual has left the individual's work
 
18           voluntarily without good cause, and continuing until
 
19           the individual has, subsequent to the week in which the
 

 
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 1           voluntary separation occurred, been paid wages in
 
 2           covered employment equal to not less than five times
 
 3           the individual's weekly benefit amount as determined
 
 4           under section 383-22(b).
 
 5                An owner-employee of a corporation who brings
 
 6           about the owner-employee's unemployment by divesting
 
 7           ownership, leasing the business interest, terminating
 
 8           the business, or by other similar actions where the
 
 9           owner-employee is the party initiating termination of
 
10           the employment relationship, has voluntarily left
 
11           employment.
 
12      (2)  Discharge or suspension for misconduct.  For any week
 
13           prior to October 1, 1989, in which the individual has
 
14           been discharged for misconduct connected with work, and
 
15           continuing until the individual has, subsequent to the
 
16           week in which the discharge occurred, been employed for
 
17           at least five consecutive weeks of employment.  For the
 
18           week in which the individual has been suspended for
 
19           misconduct connected with work and for not less than
 
20           one or more than four consecutive weeks of unemployment
 
21           which immediately follow such week, as determined in
 
22           each case in accordance with the seriousness of the
 
23           misconduct.  For the purposes of this paragraph, "weeks
 

 
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 1           of employment" means all those weeks within each of
 
 2           which the individual has performed services in
 
 3           employment for not less than two days or four hours per
 
 4           week, for one or more employers, whether or not such
 
 5           employers are subject to this chapter.  For any week
 
 6           beginning on and after October 1, 1989, in which the
 
 7           individual has been discharged for misconduct connected
 
 8           with work, and until the individual has, subsequent to
 
 9           the week in which the discharge occurred, been paid
 
10           wages in covered employment equal to not less than five
 
11           times the individual's weekly benefit amount as
 
12           determined under section 383-22(b).
 
13      (3)  Failure to apply for work, etc.  For any week prior to
 
14           October 1, 1989, in which the individual failed,
 
15           without good cause, either to apply for available,
 
16           suitable work when so directed by the employment office
 
17           or any duly authorized representative of the department
 
18           of labor and industrial relations, or to accept
 
19           suitable work when offered and continuing until the
 
20           individual has, subsequent to the week in which the
 
21           failure occurred, been employed for at least five
 
22           consecutive weeks of employment.  For the purposes of
 
23           this paragraph, "weeks of employment" means all those
 

 
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                                     S.B. NO.           1558
                                                        
                                                        

 
 1           weeks within each of which the individual has performed
 
 2           services in employment for not less than two days or
 
 3           four hours per week, for one or more employers, whether
 
 4           or not such employers are subject to this chapter.  For
 
 5           any week beginning on and after October 1, 1989, in
 
 6           which the individual failed, without good cause, either
 
 7           to apply for available, suitable work when so directed
 
 8           by the employment office or any duly authorized
 
 9           representative of the department of labor and
 
10           industrial relations, or to accept suitable work when
 
11           offered until the individual has, subsequent to the
 
12           week in which the failure occurred, been paid wages in
 
13           covered employment equal to not less than five times
 
14           the individual's weekly benefit amount as determined
 
15           under section 383-22(b).
 
16           (A)  In determining whether or not any work is suitable
 
17                for an individual there shall be considered among
 
18                other factors and in addition to those enumerated
 
19                in paragraph (3)(B), the degree of risk involved
 
20                to the individual's health, safety, and morals,
 
21                the individual's physical fitness and prior
 
22                training, the individual's experience and prior
 
23                earnings, the length of unemployment, the
 

 
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 1                individual's prospects for obtaining work in the
 
 2                individual's customary occupation, the distance of
 
 3                available work from the individual's residence,
 
 4                and prospects for obtaining local work.  The same
 
 5                factors so far as applicable shall be considered
 
 6                in determining the existence of good cause for an
 
 7                individual's voluntarily leaving work under
 
 8                paragraph (1).
 
 9           (B)  Notwithstanding any other provisions of this
 
10                chapter, no work shall be deemed suitable and
 
11                benefits shall not be denied under this chapter to
 
12                any otherwise eligible individual for refusing to
 
13                accept new work under any of the following
 
14                conditions:
 
15                (i)  If the position offered is vacant due
 
16                     directly to a strike, lockout, or other labor
 
17                     dispute;
 
18               (ii)  If the wages, hours, or other conditions of
 
19                     the work offered are substantially less
 
20                     favorable to the individual than those
 
21                     prevailing for similar work in the locality;
 
22              (iii)  If as a condition of being employed the
 
23                     individual would be required to join a
 

 
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 1                     company union or to resign from or refrain
 
 2                     from joining any bona fide labor
 
 3                     organization.
 
 4      (4)  Labor dispute.  For any week with respect to which it
 
 5           is found that unemployment is due to a stoppage of work
 
 6           which exists because of a labor dispute at the factory,
 
 7           establishment, or other premises at which the
 
 8           individual is or was last employed; provided that this
 
 9           paragraph shall not apply if, prior to the stoppage of
 
10           work and after the parties have bargained in good faith
 
11           to an impasse, it is shown that the employer has
 
12           rejected the labor organization's bona fide offer to
 
13           submit the dispute to final and binding arbitration.
 
14           However, if the labor organization has not made a bona
 
15           fide offer to submit the dispute to final and binding
 
16           arbitration prior to the stoppage of work, then this
 
17           paragraph shall not apply if it is shown that:
 
18           (A)  The individual is not participating in or directly
 
19                interested in the labor dispute which caused the
 
20                stoppage of work; and
 
21           (B)  The individual does not belong to a grade or class
 
22                of workers of which, immediately before the
 
23                commencement of the stoppage, there were members
 

 
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                                     S.B. NO.           1558
                                                        
                                                        

 
 1                employed at the premises at which the stoppage
 
 2                occurs, any of whom are participating in or
 
 3                directly interested in the dispute; provided that
 
 4                if in any case separate branches of work, which
 
 5                are commonly conducted as separate businesses in
 
 6                separate premises, are conducted in separate
 
 7                departments of the same premises, each such
 
 8                department shall, for the purpose of this
 
 9                paragraph, be deemed to be a separate factory,
 
10                establishment, or other premises.
 
11      (5)  If the department finds that the individual has within
 
12           the twenty-four calendar months immediately preceding
 
13           any week of unemployment made a false statement or
 
14           representation of a material fact knowing it to be
 
15           false or knowingly failed to disclose a material fact
 
16           to obtain any benefits not due under this chapter, the
 
17           individual shall be disqualified for benefits beginning
 
18           with the week in which the department makes the
 
19           determination and for each consecutive week during the
 
20           current and subsequent twenty-four calendar months
 
21           immediately following such determination, and such
 
22           individual shall not be entitled to any benefit under
 
23           this chapter for the duration of such period; provided
 

 
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 1           that no disqualification shall be imposed if
 
 2           proceedings have been undertaken against the individual
 
 3           under section 383-141.
 
 4      (6)  Other unemployment benefits.  For any week or part of a
 
 5           week with respect to which the individual has received
 
 6           or is seeking unemployment benefits under any other
 
 7           employment security law, but this paragraph shall not
 
 8           apply (A) if the appropriate agency finally determines
 
 9           that the individual is not entitled to benefits under
 
10           such other law, or (B) if benefits are payable to the
 
11           individual under an act of Congress which has as its
 
12           purpose the supplementation of unemployment benefits
 
13           under a state law."
 
14      SECTION 2.  Section 387-1, Hawaii Revised Statutes, is
 
15 amended by amending the definition of "tipped employee" to read
 
16 as follows:
 
17      ""Tipped employee" means any employee engaged in an
 
18 occupation in which the employee customarily and regularly
 
19 receives more than $20 a month in tips[.] or any employee engaged
 
20 in an occupation in which the employee customarily and regularly
 
21 receives more than $20 a month through the distribution of
 
22 service charges collected by the employee's employer."
 
23      SECTION 3.  Section 387-2, Hawaii Revised Statutes, is
 

 
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                                     S.B. NO.           1558
                                                        
                                                        

 
 1 amended to read as follows:
 
 2      "387-2 Minimum wages.  Except as provided in section 387-9
 
 3 and this section, every employer shall pay to each employee
 
 4 employed by the employer wages at the rate of not less than
 
 5 [$3.85 per hour beginning January 1, 1988, $4.75 per hour
 
 6 beginning April 1, 1992, and] $5.25 per hour beginning January 1,
 
 7 [1993.] 1998.  The hourly wage of a tipped employee may be deemed
 
 8 to be increased on account of tips if the employee is paid not
 
 9 less than twenty cents below the applicable minimum wage by the
 
10 employee's employer and the combined amount the employee receives
 
11 from the employee's employer and in tips is at least fifty cents
 
12 per hour more than the applicable minimum wage[.]; provided that
 
13 where wages are set forth by a collective bargaining agreement,
 
14 the hourly wage of a tipped employee may not be deemed to be
 
15 increased absent the clear written agreement by the parties to
 
16 the collective bargaining agreement."
 
17      SECTION 4.  Section 387-3, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "387-3 Maximum hours.(a)  No employer shall, except as
 
20 otherwise provided in this section, employ any employee for a
 
21 workweek longer than forty hours unless the employee receives
 
22 overtime compensation for the employee's employment in excess of
 
23 the hours above specified at a rate not less than one and one-
 

 
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 1 half times the regular rate at which the employee is employed.
 
 2      For the purposes of this section,
 
 3      (1)  "Salary" means a predetermined wage, exclusive of the
 
 4           reasonable cost of board, lodging, or other facilities,
 
 5           at which an employee is employed each pay period;
 
 6      (2)  If an employee performs two or more different kinds of
 
 7           work for the same employer, the total earnings for all
 
 8           such work for the pay period shall be considered to
 
 9           have been earned for performing one kind of work.
 
10      (b)  The regular rate of an employee who is employed on a
 
11 salary shall be computed as follows:
 
12      (1)  If the employee is employed on a weekly salary, the
 
13           weekly salary and the reasonable cost of board,
 
14           lodging, or other facilities, if furnished to the
 
15           employee, shall be divided by forty.
 
16      (2)  If the employee is employed on a biweekly salary, the
 
17           biweekly salary and the reasonable cost of board,
 
18           lodging, or other facilities, if furnished to the
 
19           employee, shall be divided by two and the quotient
 
20           divided by forty.
 
21      (3)  If the employee is employed on a semi-monthly salary,
 
22           the semi-monthly salary and the reasonable cost of
 
23           board, lodging, or other facilities, if furnished to
 

 
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 1           the employee, shall be multiplied by twenty-four, the
 
 2           product divided by fifty-two and the quotient divided
 
 3           by forty.
 
 4      (4)  If the employee is employed on a monthly salary, the
 
 5           monthly salary and the reasonable cost of board,
 
 6           lodging, or other facilities if furnished to the
 
 7           employee, shall be multiplied by twelve, the product
 
 8           divided by fifty-two and the quotient divided by forty.
 
 9      (c)  The regular rate of an employee who is employed on a
 
10 salary and in addition receives other wages such as, but not
 
11 limited to, commissions, bonus, piecework pay, and hourly or
 
12 daily pay shall be computed in the manner provided in this
 
13 subsection.  As used hereinabove, the term "other wages" shall
 
14 not include the reasonable cost of board, lodging, or other
 
15 facilities.
 
16      (1)  If the employee's salary and the reasonable cost of
 
17           board, lodging, or other facilities, if furnished to
 
18           the employee, equal or exceed fifty per cent of the
 
19           employee's total earnings for the pay period, the total
 
20           earnings shall be reduced to a regular rate in the
 
21           manner provided in paragraph (1), (2), (3), or (4) of
 
22           subsection (b), whichever is applicable.
 
23      (2)  If the employee's salary and the reasonable cost of
 

 
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 1           board, lodging, or other facilities, if furnished to
 
 2           the employee, are less than fifty per cent of the
 
 3           employee's total earnings for the pay period, the total
 
 4           earnings shall be reduced to a regular rate in the
 
 5           manner provided in paragraph (1), (2), (3), or (4) of
 
 6           subsection (b), whichever is applicable, except that
 
 7           the actual number of hours worked in the workweek shall
 
 8           be substituted for the final divisor of forty.  Such an
 
 9           employee shall receive overtime compensation for
 
10           employment in excess of forty hours in a workweek at a
 
11           rate not less than one-half times the employee's
 
12           regular rate.
 
13      (d)  The regular rate of an employee whose compensation is
 
14 based on other than salary shall be computed in the manner
 
15 provided in [paragraph (2) of] subsection [(c).] (c)(2).  The
 
16 reasonable cost of board, lodging, or other facilities, if
 
17 furnished to the employee, shall be included in computing the
 
18 employee's regular rate.  Such an employee shall receive overtime
 
19 compensation for such employment in excess of forty hours in a
 
20 workweek at a rate not less than one-half times the employee's
 
21 regular rate.
 
22      (e)  The regular rate of a tipped employee whose hourly wage
 
23 is deemed to be increased under section 387-2 shall not be less
 

 
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 1 than the applicable minimum wage rate.  Tips shall not be
 
 2 credited against an employee's overtime compensation.
 
 3      [(e)] (f)  An employer,
 
 4      (1)  Who is engaged in agriculture and in the first
 
 5           processing of milk, buttermilk, whey, skim milk, or
 
 6           cream into dairy products, or in the processing of
 
 7           sugar cane molasses or sugar cane into sugar (but not
 
 8           refined sugar) or into syrup, or in the first
 
 9           processing of or in canning or packing any agricultural
 
10           or horticultural commodity, or in handling,
 
11           slaughtering, or dressing poultry or livestock; or
 
12      (2)  Who is engaged in agriculture and whose agricultural
 
13           products are processed by an employer who is engaged in
 
14           a seasonal pursuit or in processing, canning, or
 
15           packing operations referred to in paragraph (1); or
 
16      (3)  Who is at any place of employment engaged primarily in
 
17           the first processing of, or in canning or packing
 
18           seasonal fresh fruits;
 
19 shall not be required to pay overtime compensation for hours in
 
20 excess of forty in a workweek to any of the employer's employees
 
21 during any of twenty different workweeks, as selected by the
 
22 employer, in any yearly period commencing July 1, for employment
 
23 in any place where the employer is so engaged.  The employer,
 

 
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                                     S.B. NO.           1558
                                                        
                                                        

 
 1 however, shall pay overtime compensation for such employment in
 
 2 excess of forty-eight hours in any such exempt workweek at the
 
 3 rate and in the manner provided in subsections (a), (b), (c), and
 
 4 (d), whichever is applicable, except that the word "forty-eight"
 
 5 shall be substituted for the word "forty" wherever it appears in
 
 6 subsections (b), (c), and (d).
 
 7      [(f)] (g)  No employer shall employ any employee in split
 
 8 shifts unless all of the shifts within a period of twenty-four
 
 9 hours fall within a period of fourteen consecutive hours, except
 
10 in case of extraordinary emergency.
 
11      [(g)] (h)  This section shall not apply to any overtime
 
12 hours worked by an employee of an air carrier subject to Title II
 
13 of the Railway Labor Act, 45 U.S.C. section 181 et seq.; provided
 
14 such overtime hours are the result of a voluntary agreement
 
15 between employees to exchange work time or days off."
 
16      SECTION 5.  Statutory material to be repealed is bracketed.
 
17 New statutory material is underscored.
 
18      SECTION 6.  This Act shall take effect upon its approval.
 
19 
 
20                           INTRODUCED BY:  _______________________