Use the Lexology Navigator tool to compare the answers in this article with those from 20+ other jurisdictions.
What are the requirements relating to advertising open positions?
If a vacancy is due to a labor dispute (e.g., a strike), the advertisement must specify whether the position is temporary or permanent.
For all other situations, employers must adhere to the state's equal employment opportunity regulations. Information on these regulations can be found at http://labor.hawaii.gov/hcrc/.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Arrest records cannot be considered. Criminal convictions may be considered only if:
- it has been less than 10 years since the individual was released from incarceration; and
- the employer can show that the conviction is "rationally related" to the job duties.
(b) Medical history
Like federal law, state law prohibits employers from inquiring into an applicant's medical history, unless there is a bona fide occupational qualification issue. If a bona fide occupational qualification exists, then the inquiry must be done post-offer.
(c) Drug screening
Drug screening is similar to medical history and can be conducted post-offer. Drug screening required by federal law must comply with the applicable federal regulations. Employers that are not required by federal law to conduct drug screening, but nevertheless elect to do so, must follow state law and regulations with respect to the drug testing procedures.
(d) Credit checks
Credit checks are permissible only for managerial or supervisory employees, and those for whom credit checks are a bona fide occupational qualification. Credit checks must be done post-offer.
(e) Immigration status
Federal law controls inquiries about immigration status. In short, employees are required to:
- produce documents establishing their identity and authorization to work in the United States within three days of hire; and
- complete an I-9 form.
(f) Social media
Currently, there are no state statutes that directly address social media in the employment context. However, in 2016 the Hawaii State Legislature previously considered a bill that would have prohibited employers from requiring, requesting, or coercing an employee or potential employee to:
- disclose the username, password or other information to enable the employer to access the account;
- access the employee or potential employee’s personal account in the presence of the employer; or
- add anyone to their list of contacts associated with the personal account.
Although this bill did not make it into law, employers should watch to see if the bill is reintroduced in the upcoming 2017 State Legislative session.
Wage and hour
What are the main sources of wage and hour laws in your state?
The Wage and Hour Law (HRS Chapter 387) and the Payment of Wages Law (HRS Chapter 388) are the main sources of wage and hour law. There are also administrative regulations promulgated under these laws.
What is the minimum hourly wage?
- Effective from January 1 2017, $9.25 per hour.
- From January 1 2018, $10.10 per hour.
What are the rules applicable to final pay and deductions from wages?
Employees who are terminated must be paid for all wages as of the date of termination. Employees who resign after giving at least one payroll period's notice of their resignation must be paid for all wages on the last date of employment. Employees who resign without giving at least one payroll period's notice of their resignation may be paid for all wages due on the payday following the effective date of their resignation.
Deductions required by law or court order may be taken from final paychecks. The employee must authorize all other deductions in writing.
Hours and overtime
What are the requirements for meal and rest breaks?
Employers that employ minors are required to provide employees aged 15 and 16 with a 30-minute meal break under the state's child labor laws. No other requirements for meal breaks exist.
Employers must further provide nursing mothers with time to express breast milk. These requirements can be found at http://labor.hawaii.gov/hcrc/.
What are the maximum hour rules?
Employers must pay overtime to employees who work in excess of 40 hours per working week.
How should overtime be calculated?
Employers must pay employees one-and-a-half times their regular rate of pay for all hours worked in excess of 40 hours per week. Hawaii's wage and hour laws are similar to the federal regulations on overtime calculation procedures.
What exemptions are there from overtime?
The following categories of workers are exempt from overtime:
- bona fide executives;
- bona fide administrators;
- bona fide supervisors;
- bona fide professionals;
- outside salespersons; and
- outside collectors.
Note that the definitions for these exemptions are different from the definitions under federal law.
What payroll and payment records must be maintained?
The following data must be kept on each employee:
- social security number;
- home address;
- rate of pay;
- straight time earnings;
- overtime earnings;
- authorizations for deductions;
- total wages per pay period; and
- federal and state tax withholding forms.
In addition, records of time worked (for non-exempt employees) and evidence of payment (e.g., pay stubs) must also be maintained.
Hawaii requires all personnel records to be physically retained in the state. If a company maintains electronic records, it must be able to print copies of any e-records on demand by a government agency.
Click here to view the full article.