Labor and Employment Law Overview: Hawaii

Labor and Employment Law Overview requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: XpertHR Editorial Team

Summary

  • Hawaii law prohibits an employer from discriminating and retaliating against employees in a variety of protected classes. See EEO, Diversity and Employee Relations.
  • Hawaii permits drug testing, but limits credit checks and consideration of conviction records to certain situations. See Recruiting and Hiring.
  • In Hawaii, there are many requirements relating to the minimum wage, overtime, meal and rest breaks, and child labor. See Wage and Hour.
  • Hawaii has a number of laws that relate to employee pay and benefits, including medical benefits, temporary disability insurance, and wage notice and pay requirements. See Pay and Benefits.
  • Under Hawaii law, employees are entitled to a number of leaves including family leave, pregnancy disability leave, victims leave and time off for jury duty. See Attendance and Leave.
  • Hawaii law requires an employer to provide a safe working environment for employees. See Health and Safety.
  • Most Hawaii employers must comply with notification requirements before a plant closing, partial closing, relocation or divestiture. See Organizational Exit.

Introduction to Employment Law in Hawaii

Hawaii is generally considered an employee-friendly state.

Select Hawaii employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key Hawaii requirements impacting EEO, diversity and employee relations are:

Employment Practices Act

Hawaii's Employment Practices Act applies to all employers and contains an extensive list of protected classes against which an employer is prohibited from discriminating, including:

  • Race, color, national origin, and ancestry;
  • Religion;
  • Gender (including gender identity and expression);
  • Pregnancy (including childbirth, breastfeeding and related medical conditions);
  • Disability (mental and physical) and genetic information;
  • Age;
  • Sexual orientation; and
  • Marital and civil union status.

Absent undue hardship, Hawaii employers must also provide reasonable accommodations for certain protected classifications, including:

  • Disability;
  • Pregnancy;
  • Religion; and
  • Victims of domestic violence.

Harassment is a form of illegal discrimination, and the Employment Practices Act prohibits harassment based on numerous factors, including:

  • Gender identity and expression;
  • Sexual orientation;
  • Arrest or court record; and
  • Domestic or sexual violence victim status.

The Employment Practices Act also prohibits retaliation against a person who:

  • Files a complaint of discrimination or harassment; or
  • Participates in an EEO investigation.

The Employment Practices Act also includes an equal pay provision that prohibits sex discrimination in compensation.

Whistleblower Protection

Under Hawaii law, an employer may not discharge, threaten or otherwise discriminate against an employee who reports, or is about to report, the employer's violation or suspected violation of the law to the employer or to a government agency.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on discrimination, harassment and whistleblower protection in Hawaii can be found in the Hawaii Employee Handbook Table of Contents, Disabilities (ADA): Hawaii, EEO - Discrimination: Hawaii, EEO - Harassment: Hawaii, EEO - Retaliation: Hawaii, Employee Communications: Hawaii, Employee Discipline: Hawaii, Hawaii Workplace Labor and Employment Law Posters, and Does This Law Apply to My Organization in Hawaii?. Federal requirements can be found in Disabilities (ADA): Federal, EEO - Discrimination: Federal, EEO - Harassment: Federal, EEO - Retaliation: Federal, Employee Communications: Federal and Employee Discipline: Federal.

Recruiting and Hiring

Key Hawaii requirements impacting recruiting and hiring are:

Credit Checks

In Hawaii, credit checks may only be performed for certain types of jobs and can only be done post-offer. Additionally, an employer may not consider an applicant's or employees credit history unless:

  • The information directly relates to a bona fide occupational qualification;
  • The employer is permitted or required by federal or state law to take the information into consideration for employment purposes;
  • The employee in question is a managerial or supervisory employee; or
  • The employer is a federally insured financial institution.

Criminal Records

Hawaii has a "Ban the Box law" that prohibits an employer from inquiring about arrest or conviction records in employment applications or initial interviews.

Arrests alone may not be used to screen applicants. Convictions may be taken into consideration, post-offer, but only if the conviction:

  • Occurred within the last 10 years, excluding periods of incarceration; and
  • Bears a rational relationship to the duties and responsibilities of the position in question.

Drug and Alcohol Testing

Drug and alcohol testing of an applicant or employee, unless governed by federal law and regulations, must comply with Hawaii's Substance Abuse Testing Act, which contains several requirements, including:

  • All testing-related information must be kept strictly confidential;
  • Only specified laboratories may be used;
  • All testing costs must be paid by the employer; and
  • Employees must be provided with a written statement of the specific substances tested for, among other disclosures.

AIDS Testing

Hawaii employers may not compel an HIV or AIDS test, may not test a job applicant or employee without prior written consent, and may not ask as a condition of employment whether an employee has ever been tested for HIV infection.

Polygraph Testing

Hawaii law prohibits an employer from requiring a job applicant or employee to submit to a lie detector test as a condition of employment or continued employment.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on recruiting and hiring practices in Hawaii can be found in Preemployment Screening and Testing: Hawaii and Does This Law Apply to My Organization in Hawaii? Federal requirements can be found in Preemployment Screening and Testing: Federal.

Wage and Hour

Key Hawaii requirements impacting wages and hours are:

Minimum Wage

Hawaii's minimum wage is higher than the federal minimum wage. Currently, the state minimum wage is $8.50 per hour, with certain exceptions. This rate will increase to $9.25 per hour on January 1, 2017 and to $10.10 per hour on January 1, 2018.

Overtime

Hawaii law generally requires an employer to pay covered employees overtime at a rate of one and one-half times the regular rate for all hours worked in excess of 40 hours in a workweek.

For employees earning less than $2,000 per month, Hawaii uses a formula different from the federal formula for converting a nonexempt employee's salary into an hourly rate for purposes of calculating overtime. Accordingly, if an employer pays an employee less than $2,000 per month in compensation, the employer must compute any overtime pay using both the federal and the state formulas, and pay the employee based on the formula more favorable to the employee.

Breastfeeding Breaks

Under Hawaii law, an employer must provide employees "reasonable" break time each time they need to express breast milk for a nursing child for up to one year after the child's birth. An employer must also provide a breastfeeding worker a private space (other than a restroom stall) where the public and coworkers cannot enter and inform employees about their protections through conspicuous workplace postings and "other appropriate means."

An employer with less than 20 employees may be excused from these requirements if the employer can show that the law would impose an undue hardship (significant difficulty or expense) on the business.

Child Labor

Child labor laws in Hawaii restrict the occupations in which minors may be employed and the number of hours and times during which they may work. In addition, employers must provide certain minors with rest or meal breaks.

Under Hawaii law, all minors are prohibited from working in hazardous occupations or in any occupation connected with adult entertainment. In addition, minors who are under 16 years of age are prohibited from working in a variety of other occupations, such as manufacturing or processing operations, and certain agricultural, retail and food service occupations.

Child labor laws also list many occupations in which minors are actively permitted to engage, such as cashiering, selling, modeling, and office and clerical work. Special rules apply to minors working in certain occupations, including:

  • Theatrical employment;
  • Coffee harvesting; and
  • Pineapple harvesting.

Hawaii law has a complex set of requirements that govern the times during which minors may work. These requirements differ depending on the age of the minor, with separate working time restrictions set out for 16- and 17-year-olds, for 14- and 15-year-olds and for minors under 14 years of age.

Hawaii law requires an employer to provide at least a 30-minute meal or rest break to all 14- or 15-year-old minors who work five consecutive hours.

Minors are required to obtain a certificate of employment or age in order to work.

Hours of Work

Under Hawaii law, an employer shall not employ any employee in split shifts unless all of the shifts within a period of 24 hours fall within a period of 14 consecutive hours, except in case of extraordinary emergency.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in Hawaii can be found in the Hawaii Employee Handbook Table of Contents, Minimum Wage: Hawaii, Overtime: Hawaii, Hours Worked: Hawaii, Child Labor: Hawaii, Hawaii Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Hawaii? Federal requirements can be found in Minimum Wage: Federal, Overtime: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key Hawaii requirements impacting pay and benefits are:

Hawaii Prepaid Health Care Act

Under the Hawaii Prepaid Health Care (PHC) Act, an employer is required to provide comprehensive health care benefits to employees who work at least 20 hours per week for four consecutive weeks and earn monthly wages in an amount of at least 86.67 times the state minimum hourly wage.

Hawaii law does not require an employer to provide health insurance coverage for an employee's dependents if the plan provides benefits equal to the prevailing pre-approved plans. If, however, the benefits provided under the plan are less than those provided by the prevailing pre-approved plans, the employer must pay at least 50 percent of the premium cost for eligible dependent coverage.

If an employee is hospitalized or prevented from working because of illness, the employer must continue the employee's health care coverage and payment of the employee's premiums for a period of three months following the month in which the disability began, or for as long as the employee receives regular wages, whichever is longer. Thereafter, continued coverage is determined by federal COBRA.

Hawaii Temporary Disability Insurance Law

The Hawaii Temporary Disability Insurance (TDI) Law provides up to 26 weeks of partial wage replacement for eligible employees who are unable to work due to a nonwork-related injury or illness, including pregnancy and organ donation.

Pay Statement Requirements

An employer in Hawaii is required to provide employees with a written record of certain pay-related information, including:

  • Hours worked;
  • Employee pay rate(s) and basis of pay whether by the hour, shift, day, week, salary, piece, commission or other basis, including the overtime rate(s) of pay;
  • Gross earnings, showing straight time and overtime as separate entries;
  • Any other compensation paid to the employee;
  • Itemized deductions; and
  • Net earnings.

Payment of Wages

Hawaii law requires an employer to pay all employee wages at least semimonthly on paydays designated in advance that occur no more than seven days after the end of each payroll period. However, an employer may pay up to 15 days after the end of each payroll period or on a monthly basis with permission from the Hawaii Department of Labor and Industrial Relations (DLIR), or if permitted under a collective bargaining agreement provided the payments are made on a regular schedule.

When an employee is discharged, Hawaii law provides that wages must be paid at the time of termination, unless the termination occurs at a time and under conditions that prevent immediate payment.

When an employee voluntarily resigns, is laid-off, or is suspended as a result of a labor dispute, Hawaii law provides that wages must be paid by the next regular pay day. However, if an employee gives at least one pay period's advance notice of resignation, all wages earned must be paid on the last day of work.

Wage Deductions

Hawaii law prohibits an employer from making any deductions from an employee's pay unless the deduction is:

  • Required by law or court order;
  • Made to adjust wages for advances or corrections to payroll computation errors; or
  • Authorized in writing by the employee.

In addition, an employer may not deduct for certain items, regardless of employee consent, including:

  • Fines;
  • Fines, penalties or replacement costs for breakage;
  • Losses due to subsequently dishonored customer checks; and
  • Losses due to the following if such losses are not attributable to the employee's willful or intentional disregard of his or her employer's interests:
    • Defective or faulty workmanship;
    • Lost, stolen or damaged property;
    • Default of customer credit or nonpayment by customer for goods or services.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefit practices in Hawaii can be found in Insurance and Disability Benefits: Hawaii, Health Care Benefits: Hawaii, Health Care Continuation (COBRA): Hawaii, Payment of Wages: Hawaii, Hawaii Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Hawaii? Federal requirements can be found in Insurance and Disability Benefits: Federal, Health Care Benefits: Federal, Health Care Continuation (COBRA): Federal and Payment of Wages: Federal.

Attendance and Leave

Key Hawaii requirements impacting attendance and leave are:

Hawaii Family Leave Law

The Hawaii Family Leave Law (HFLL) requires employers with 100 or more employees to provide eligible employees with up to four weeks of job-protected leave in any 12-month period for qualifying reasons, including:

  • For the birth or adoption of a child; or
  • To care for a child, spouse, civil union partner or reciprocal beneficiary, parent, parent-in-law, stepparent, legal guardian, grandparent or grandparent-in-law with a serious health condition.

The HFLL does not cover leave for an employee's own serious health condition or to address an exigency arising from a family member's military duty.

The HFLL allows family leave to be taken intermittently.

Jury Duty

Hawaii law requires an employer to provide an employee with time off from work to serve on a jury or as a witness, but does not require an employer to compensate an employee for such time off. Hawaii law also prohibits an employer from discriminating against an employee for performing jury duty or serving as a witness.

Other Leave Laws Affecting Hawaii Employers

  • Pregnancy disability leave law;
  • Organ, bone marrow and stem cell donation leave law (50 or more employees);
  • Victims leave law;
  • Voting leave law; and
  • Military leave law.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in Hawaii can be found in the Hawaii Employee Handbook Table of Contents, FMLA: Hawaii, Jury Duty: Hawaii, Other Leaves: Hawaii, USERRA: Hawaii, Hawaii Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Hawaii? Federal requirements can be found in FMLA: Federal, Jury Duty: Federal, Other Leaves: Federal and USERRA: Federal.

Health and Safety

Key Hawaii requirements impacting health and safety are:

Hawaii Occupational Safety and Health Law

Hawaii operates its job safety and health programs covering the private sector under an approved state plan.

Under Hawaii's Occupational Safety and Health Law, an employer must provide and maintain a safe and healthy workplace for its employees, and furnish employees with workplaces that are free from recognized hazards.

Smoking in the Workplace

Smoking (including e-cigarette use) is prohibited in all places of employment and within 20 feet from the entrances, exits, windows and ventilation intakes of buildings. Signs stating "Smoking Prohibited by Law" or displaying the international No Smoking symbol must be posted at every entrance.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on health and safety requirements in Hawaii can be found in the Hawaii Employee Handbook Table of Contents, Employee Health: Hawaii, HR and Workplace Safety: Hawaii, Hawaii Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Hawaii? Federal requirements can be found in Employee Health: Federal and HR and Workplace Safety (OSHA Compliance): Federal.

Organizational Exit

Hawaii's Dislocated Workers Act is much broader than the federal Worker Adjustment and Retraining Notification Act (WARN Act) and requires employers with 50 or more employees to comply with the law if they plan any facility closing, partial facility closing, facility relocation outside of Hawaii, or divestiture, regardless of the number of employees to be laid off.

The Dislocated Workers Act requires covered employers to comply with certain obligations in addition to their obligations under the federal WARN Act, including:

  • Provide each employee and the Director of the Hawaii Department of Labor and Industrial Relations (DLIR) with advance written notice of a closing, partial closing, relocation or divestiture; and
  • Pay a dislocated worker's allowance for four weeks to each affected employee found eligible for unemployment compensation benefits.

An employer wishing to give less than 60 days' advance written notice may provide pay in lieu of notice (i.e., one day's pay for each day notice is not given).

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on organizational exit practices in Hawaii can be found in Involuntary Terminations: Hawaii, Hawaii Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Hawaii? Federal requirements can be found in Involuntary Terminations: Federal.