Breaks Under Hawaii Labor Laws: An Overview
As is the case for many labor law issues in the islands, Hawaii employee breaks and rest periods can be tricky to navigate for employers. There are two separate state statutes that address these laws, as well as one federal law that is often implicated in discussions of rest periods for Hawaii employees. Through a number of different regulatory provisions, Hawaii law requires breaks for employees, and provides for various rules governing the timeframe in which these breaks should be taken.
Hawaii Revised Statute § 387-5 – Rest breaks and meal periods A common trend for Hawaii labor law is exception rather than the rule, and that holds true for employee breaks as well. Hawaii law requires an employee be provided "reasonable periods for rest not exceeding five (5) hours a day" when they are working more than three and one half (3.5) hours continuously. The statute is deliberately vague, allowing for the reasonable period to be agreed upon between the employer and employee.
The five hour threshold has generated a lot of confusion in regards to Hawaii employee breaks, as this is also the amount of time that has been cited by courts as creating a rebuttable presumption that an employee worked five consecutive hours of work. Employers should take heed that breaks for employees who are allowed to work through lunch are compensable.
Hawaii Revised Statute § 388-6 – Hours and schedules of work The Hawaii legislature implored the Department of Labor and Industrial Relations (DLIR) to draft rules that "shall provide for meals and further rest periods during the workday." They did so, with Hawaii Administrative Rules § 12-22-28 requiring a "All employers shall provide a period for each employee for meals no later than 5 consecutive hours after the beginning of the employee’s work."
Attorney’s points to note: Employers should not conclude that their employees get a mandatory break simply because it is required under Hawaii law. The statute does not require employers to pay for rest or meal periods , even if the value of the employee’s labor is needed during the break. Suppose, for example, a clerk is in the middle of a complex transaction with a customer at 12:45 p.m., when their regular lunch break is supposed to begin. The clerk’s supervisor cannot require the clerk stop dealing with the customer, because the law requires a lunch break. If the clerk works through the break to help the customer, the employer is not obligated to compensate them for the time worked.
Wage and Hour Division (WHD) Fact Sheet #22: Hours Worked Under The Fair Labor Standards Act (FLSA) The wage and hour laws passed at the federal level are where Hawaii employee breaks become yet more complex. It’s not possible to understand Hawaii law on the subject without understanding how federal law can enter into the discussion. Federal law requires an employee receive a compensable break if they are "permitted to leave their station or to be off-duty; and that the time is long enough to enable them to use the time effectively for their own purposes." Don’t settle for merely memorizing the statute, but understand the intent behind it when interpreting the law.
This leaves employers scratching their heads, of course, as to what HR managers call "the off-duty rule"—which allows an entire day of fasting in between employee shifts, and an at least 30-minute meal period in between shifts, with no work obligation whatsoever. The WHD does not often enforce this part of federal law, but employers should be aware of it nonetheless.
The rule of thumb rests on four threshold factors, which indicate when federal wage and hour laws for breaks truly apply: All of these circumstances must be met to justify an unpaid period for meal, so employers contemplating completely unpaid periods for meal should be extra cautious.
On this topic, the Hawaii Supreme Court offered the following guidance in Mednick v. Albertson’s Inc. to employers and the DLIR:
Mandatory Breaks for Adult Workers
Under HLRB § 12-20, adult employees must be given a 30 minute uncompensated rest period "not later than the end of the third hour of work and not earlier than the end of the first hour of work" after commencing their shifts. In addition, HLRB § 12-21 requires employers to provide more than one rest period without requiring compensation for those adult employees who work more than ten hours in a day. The law requires that separate periods of unpaid rest or meal breaks of not more than 30 minutes be granted at least once every four consecutive hours of work for adult employees. After the first four hour work segment, no break is required under the Wage and Hour Law unless the employer has required employees to work more than four consecutive hours. If employees are required to work more than four consecutive hours, or work a total of more than 10 hours per day, additional break periods are required. However, the law does not require that the rest and meal breaks be counted as hours worked, as long as the breaks are given and the period of time for which the employee is relieved of all work duties is at least 30 minutes for no compensation. Food service and health care institutions should consult with a labor law attorney regarding exceptions.
Break Requirements for Workers Under 18
As with adults, minor employees are entitled to the same meal and rest period rights outlined in the laws above. They are entitled to an unpaid 30-minute meal period for shifts of more than five continuous hours of work, and to 10-minute rest breaks for shifts of four hours or more. However, additional provisions apply to the break and rest periods of minors:
• Minor employees must be allowed a 30-minute rest period if working for more than 2 consecutive hours after 5 p.m., unless the break is impractical for the minor’s protection or the safety of others.
• If a minor under the age of 15 is working more than five consecutive hours, the employer can require the minor to take an uncompensated 30-minute meal period if the employer can show why the minor should not receive this break.
• If a minor between the ages of 14 and 19 is working more than five consecutive hours, he or she may perform work duties during the 30-minute meal period if the employee and employer mutually agree.
• Minors under the age of 18 may not be employed for more than four hours without a 30-minute meal break, unless they can mutually agree with their employer to do so.
Paid Versus Unpaid Breaks in Hawaii
Hawaii law differentiates between paid and unpaid breaks, and knowing the distinction is crucial for employers operating in the state. In the past, the Hawaii Supreme Court found that a short rest period is appropriate for the general benefit of an employer and should therefore be counted as hours worked; however, any other type of break, including those longer than short breaks, must be paid. The same type of ruling has been made by an array of federal and state courts. The distinction between paid and unpaid breaks has been dictated by the Department of Labor and Industrial Relations (DLIR) by requiring that all breaks and meal periods of less than 20 minutes be considered paid. Employers may require employees to remain on the premises during such breaks, in which case they cannot engage in personal activities, but nothing in the law prevents employers from encouraging their employees to take breaks in situations where remaining on the premises may be unnecessary. Employers are instructed by the DLIR that the amount of time an employee is absent from work due to a break should be considered hours worked because "providing rest periods is indispensable to good health and necessary to validate the ‘hours of toil’ of men subject to job stress and pressure and long hours of work." The DLIR has also stated that employees are entitled to only one break per day, whether 20 minutes or less in duration. Once the DLIR has not addressed a particular activity, the employer is required to analyze the situation and determine if the activity should be included as daily hours worked under the existing law. Work performed while released from active work with the flexibility to attend to personal, business or entertainment needs either on or off the premises is not considered hours worked. Such instances typically include: The DLIR has stated that it is not the intent of the law that employers pay employees for the time spent using the restroom more than necessary, so long as those restrooms are made accessible and maintained sanitary for use by all employees. Beyond situations like these, employers are pretty much required to pay employees for any other instance of time spent away from the performance of their duties.
Employer Penalties and Compliance
When discussing break laws, the question arises of how to police them in practice. Employer compliance becomes paramount. Employers are obligated to ensure that non-exempt employees receive their required breaks, as mandated by the applicable employment laws.
Recording and Monitoring: Employers are not required to monitor the start and end times of rest and meal periods of their employees. However, as a FLSA requirement, employers must maintain accurate records of break time, meal time, and overtime worked by their employees. Employers can require non-exempt employees to clock in and out for each meal break and to report overtime. Employers should ideally keep these records; however, the FLSA only requires that employers keep accurate records. Thus, there may be some argument that if audited by DOL, employers can show that they were maintaining accurate records (as required under the law), even if employers do not keep specific records regarding employee meal and rest time .
Training: Employers should train everyone involved in administering meal and rest periods, including managers, HR, and payroll, on the specific requirements under the law. This should include who is responsible for enforcing and monitoring compliance, and how to address issues that arise.
Written Policy: Employers may want to have a written policy addressing the meal break requirements that they are subject to. In addition, it may be beneficial for employers to have a written policy regarding enforcement of unpaid rest breaks. The policy may acknowledge that employees are required to rest for the entire rest period and may not be interrupted during this time. On a practical level, the policy should encourage managers to avoid having conversations with employees about their work during their rest break. The written policy should be distributed, and each employee should acknowledge receipt of the policy. Training managers regarding how to communicate with employees about the policy may also be beneficial.
What Employees Can Do
Employees who do not receive their properly allotted breaks or suffer workday penalties as a result have several avenues of recourse in the event of a dispute. Affected employees can file a complaint with the Hawaii Department of Labor and Industrial Relations (DLIR) or even pursue legal action against their employer. While pursuing a claim through the DLIR’s wage standards division for unpaid wages is often a straightforward process, formal litigation may yield the best outcomes for workers, as it greatly increases their chances of attaining the compensation they deserve.
Break Laws and Recent Developments
Hawaii has seen some relatively recent changes to its break laws which were largely in line with the FLSA. Notably, the Hawaii administrative rules now provide for meal breaks and rest periods for minors.
Regarding minors, employers are now required to provide a 30-minute uninterrupted meal period after no more than 4 hours of continuous work, unless the minor is relieved of all duties during the period. Further, a 10-minute rest period must be provided every 2 hours for those employees from 14 to 17 years old, and 5 minutes for employees from 13 to 15 years old. It is important to recognize that minors cannot waive these break rights—the employer institutionally needs to plan accordingly.
With regard to adult employees, formal meal and rest requirements are not necessarily new. The statute, HRS 387-8, has provided for up to 30 minutes of unpaid meal time when the employer determines that a meal break is required. There are a couple of "catches" under the statute: the employee cannot be required to perform duties during the meal breaks, and the employee may waive the meal break. Additionally, the employee must work at least 3 consecutive hours after their first hour of work each day before the employer may require a meal break . If waived, the employer cannot require an employee to wait beyond the one hour of free time.
Hawaii’s Administrative Rules go a bit further, noting that employees who are expected to perform any duties during the so-called lunch break are actually working, and must be paid for this time.
Rest periods, on the other hand, are not discussed in the statute or the Administrative Rules. Unpaid rest periods are perhaps the most commonly misunderstood area of labor laws as they are not required, and they are only considered to be authorized by the employer if the employer provides them. But, when they are provided, they are compensable if the employee is required to perform any work during the period.
Keep in mind that rest periods are different from meal periods. The USDA and some other federal bodies don’t concern themselves with occasional short periods of time when employees can be "off the clock," but employers must be extremely careful when it comes to meal times. The USDA’s take on off-the-clock breaks is that they do not count as hours worked towards overtime unless treated as such. So, if those "off-the-clock" breaks are included as hours worked, then so would the breaks—regardless of how short in duration they are.
