THE SENATE

S.B. NO.

681

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO LABOR.

 

 

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

 


PART I

SECTION 1. The legislature finds that according to the National Conference of State Legislatures, nearly thirty states have no meal or rest break laws for adult workers. Of the states that do have such laws, the requirements vary significantly. The legislature further finds that Hawaii law requires an interval of at least thirty consecutive minutes for a rest or lunch period for no more than five continuous hours of work for minors who are at least fourteen years old. Federal law under the Patient Protection and Affordable Care Act requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time the employee has a need to express the milk. Hawaii law prohibits employers from penalizing an employee who breastfeeds or expresses milk at the workplace. However, neither state law nor federal wage and hour law currently requires employers to provide employees who are sixteen years of age or older with any meal break or rest break no matter how many consecutive hours an employee is required to work.

The legislature recognizes the benefits of meal and rest breaks to employees and the workplace though increased productivity and stress reduction. Employees who must work a full day or eight-hour shift or more should not be denied a reasonable period to rest and consume a meal as is required by states such as California, Colorado, Kentucky, Maryland, Oregon, Rhode Island, and Washington.

The purpose of this part is to require employers with five or more employees to provide meal and rest breaks to employees under certain conditions.

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,] in this subsection, 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] subsection (b) (1), (2), (3), or (4) [of subsection (b)], whichever [is applicable.] applies; 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] subsection (b) (1), (2), (3), or (4) [of subsection (b)], whichever [is applicable,] applies, 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[[:]] who:

(1) [Who is] 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;

(2) [Who is] 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] 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,] applies, 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 employee shall be required to work eight hours or more continuously without an interval of at least thirty minutes for a meal break. Any employee who works six or more hours but less than eight hours on a shift shall be permitted a rest break of twenty minutes. An employer and employee may negotiate the terms of a meal break or rest break, including the employee's option to take no meal break or rest break. The option of having a meal break shall be offered to the employee at the time of negotiating the employee's terms of employment. A meal break or rest break may be unpaid. An employee shall be relieved of the employee's duties during any unpaid meal break or unpaid rest break.

For the purposes of this subsection, "employer" means any person with five or more employees.

[(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."

PART II

SECTION 3. The legislature finds that according to the federal Bureau of Statistics, about twenty-four per cent of United States civilian workers (private industry workers and state and local government workers combined), or roughly 33.6 million people, do not have access to paid sick leave. In addition, the federal Bureau of Statistics' 2019 national compensation survey found that for civilian workers, paid sick leave, while nearly universal at the upper ends of the wage distribution, becomes scarcer the less money one makes.

The legislature also finds that most workers in the State, at some time during the year, need temporary time off from work to take care of personal health needs or the health needs of family members. Furthermore, working family caregivers cannot adequately care for their relatives without access to paid sick leave. In fact, the coronavirus pandemic has magnified the need for paid sick leave.

The legislature further finds that paid sick leave would have a positive effect on the public health of residents of the State by allowing workers the option of staying home when ill, thus, lessening recovery time and reducing the likelihood of spreading illness to other members of the workforce and the public. This essential time off would also lend to a healthier and more productive workforce.

Currently, thirteen states and Washington D.C. have enacted laws that require paid sick leave. According to the National Conference of State Legislatures, in 2011, Connecticut was the first state to require private-sector employers to provide paid sick leave to their employees. Arizona, California, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, Oregon, Rhode Island, Vermont, and Washington also have laws that provide paid sick leave coverage and benefits.

The purpose of this part is to establish the right for workers to accrue paid sick leave to:

(1) Ensure that all workers in the State can address their own health needs and the health needs of their families by requiring employers to provide a minimum level of paid sick leave, including time for family care;

(2) Diminish public and private health care costs in the State by enabling workers to seek early and routine medical care for themselves and their family members;

(3) Protect public health in the State by reducing the risk of contagion;

(4) Promote economic security and stability of workers and their families in the State;

(5) Protect employees in the State from losing their jobs when they use sick leave to care for themselves or their families;

(6) Safeguard public welfare, health, safety, and the prosperity of the people of the State; and

(7) Accomplish the purpose of this part in a manner that is feasible for employers.

SECTION 4. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

paid sick leave

   -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Department" means the department of labor and industrial relations.

"Director" means the director of labor and industrial relations.

"Employee" has the same meaning as defined in the federal Fair Labor Standards Act, Title 29 United States Code section 203(e), and additionally includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance and public employees who are not subject to the civil service laws of the State, a political subdivision, or a public agency. The term "employee" shall not include sole proprietors and independent contractors.

"Employer" has the same meaning as defined in the federal Fair Labor Standards Act, Title 29 United States Code section 203(d).

"Family member" means:

(1) A biological, adopted, or foster child; stepchild; legal ward; a child of a reciprocal beneficiary; or a child to whom the employee stands in loco parentis;

(2) A biological, adoptive, or foster parent; stepparent; legal guardian of an employee or an employee's spouse or reciprocal beneficiary; or a person who stood in loco parentis when the employee was a minor child;

(3) A spouse or reciprocal beneficiary; and

(4) A biological, adopted, or foster sibling; or a spouse or reciprocal beneficiary of a biological, adopted, or foster sibling.

"Health care professional" has the same meaning as defined in section 432E-1.

"Labor organization" has the same meaning as defined in section 378-1.

"Paid sick leave" means time away from work provided by an employer to an employee that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked.

   -2 Accrual of paid sick leave. (a) All employees who work in the State for more than six hundred eighty hours in a year shall have the right to paid sick leave as provided in this chapter.

(b) All employees shall accrue a minimum of one hour of paid sick leave for every forty hours worked. Employees shall not accrue more than fifty-six hours of paid sick leave in a calendar year unless the employer provides a higher limit.

(c) Employees who are exempt from overtime requirements under the federal Fair Labor Standards Act, Title 29 United States Code section 213(a)(1), shall be assumed to work forty hours in each work week for purposes of paid sick leave accrual unless the employee's normal work week is less than forty hours, in which case paid sick leave shall accrue based upon the actual hours in the employee's normal work week.

(d) Employees shall be entitled to use accrued paid sick leave beginning on the seven hundred fiftieth hour following commencement of employment. After the seven hundred fiftieth hour of employment, employees may use paid sick leave as it is accrued.

(e) An employer shall not be required to provide additional paid sick leave if the employer has a paid leave policy that makes available an amount of paid leave sufficient to meet the accrual requirements of this chapter and that may be used for the same purposes and under the same conditions as paid sick leave under this chapter.

(f) Nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for unused accrued paid sick leave.

(g) An employer may advance paid sick leave to an employee prior to its accrual by the employee.

   -3 Use of paid sick leave. (a) An employee may use paid sick leave during absences from work due to:

(1) An employee's mental or physical illness, injury, or health condition; an employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or an employee's need for preventive medical care;

(2) Care of a family member with a mental or physical illness, injury, or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or care of a family member who needs preventive medical care; and

(3) Closure of the employee's place of business by order of a public official due to a public health emergency, an employee's need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for a family member when it has been determined by the health authorities having jurisdiction or by a health care professional that the family member's presence in the community would jeopardize the health of others because of the family member's exposure to a communicable disease, regardless of whether the family member has actually contracted the communicable disease.

(b) Paid sick leave shall be provided based on a manner deemed suitable by the employer.

(c) When the use of paid sick leave is foreseeable, the employee shall make a good faith effort to provide prior notice of the need for the leave to the employer and shall make a reasonable effort to schedule the use of paid sick leave in a manner that does not unduly disrupt the operations of the employer.

   -4 Notice and posting. (a) An employer shall give its employees notice of the following:

(1) That employees are entitled to paid sick leave;

(2) The amount of paid sick leave granted pursuant to this chapter; and

(3) The terms of paid sick leave use as guaranteed under this chapter.

(b) An employer shall comply with this section by providing the information required in subsection (a) by:

(1) Individualized notice; or

(2) Displaying a poster in a conspicuous and accessible place in each establishment where its employees are employed.

(c) The director shall create and make posters available to employers, in all languages currently being used by the department for other employment posters, that contain the information required under subsection (a) for the employer's use in complying with this section.

   -5 Confidentiality and nondisclosure. An employer shall not require disclosure of details of an employee's medical condition as a condition of providing paid sick leave under this chapter. If an employer possesses health information or information pertaining to the details of a medical condition about an employee or employee's family member, the information shall be treated as confidential and shall not be disclosed except to the affected employee or with the permission of the affected employee.

   -6 Applicability. (a) Nothing in this chapter shall be construed to discourage or prohibit an employer from the adoption or retention of a paid sick leave policy more generous to the employee than the one required by this chapter. This chapter shall not apply to any employer who:

(1) Adopts or retains a paid sick leave policy that provides more paid sick leave than required by this chapter;

(2) Pays employees            more than the minimum wage; or

(3) Employs less than            employees.

(b) Nothing in this chapter shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous paid sick leave to an employee than required herein.

(c) Nothing in this chapter shall be construed as diminishing the rights of public employees regarding paid sick leave or use of sick leave as provided by law.

(d) This chapter shall provide the minimum requirements of paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, rule, requirement, policy, or standard that provides for greater accrual or use by employees of sick leave, whether paid or unpaid, or that extends other protections to employees."

PART III

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2021; provided that for part II of this Act, in the case of employees covered by a collective bargaining agreement in effect on July 1, 2021, this Act shall take effect on the date of termination, renewal, or amendment of the collective bargaining agreement then in effect.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Wage and Hour Law; Meal and Rest Breaks; Paid Sick Leave

 

Description:

Requires employers with five or more employees to provide meal and rest breaks under certain conditions. Requires employers to provide a minimum amount of paid sick leave to employees to be used to care for themselves or a family member who is ill or needs medical care.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.