SB425 SD2.DOC

PART I

SECTION 1. Chapter 388, part I, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§388- Paid sick leave; service workers. (a) As used in this section:

"Child" means an individual who is:

(1) Less than eighteen years of age and is:

(A) A biological, adopted, foster, or step-child of a service worker;

(B) A legal ward of a service worker; or

(2) Eighteen years of age or older and is:

(A) Incapable of self-care because of a mental or physical disability; and

(B) An individual for whom a service worker stands in loco parentis.

"Day or temporary worker" means:

(1) An individual who works for another person for less than twenty hours per week, except for an individual who works for a food establishment; or

(2) An individual who works:

(A) On a per diem basis; or

(B) On an occasional or irregular basis for only the time required to complete such work, whether the individual is paid by the person for whom work is performed or by an employment agency, as defined in section 373-1.

"Employer" has the same meaning as in section 388-1, but shall refer to employers who employ fifty or more individuals in the State in any one quarter of the previous year, which shall be determined on January 1, annually. The term "employer" excludes any nationally chartered organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code, as amended, that provides recreation, child care, or education services.

"Family violence" has the same meaning as in section 571-2.

"Food establishment" means:

(1) Any place or portion thereof maintained, used, or operated for the purpose of storing, preparing, serving, manufacturing, packaging, transporting, or otherwise handling food at the retail or wholesale level;

(2) Any place used for cleaning food equipment or utensils in support of another food establishment; or

(3) Any operation that is conducted in, or in conjunction with, a mobile, stationary, temporary, or permanent facility or location where food is served or provided to the public, with or without charge, regardless of whether the food is consumed on or off the premises.

"Service worker" means an employee, including an employee of a food establishment, excluding a day or temporary worker, who is paid on an hourly basis, or is not exempt from the minimum wage and overtime compensation requirements of the Fair Labor Standards Act of 1938 and the regulations promulgated thereunder, as amended.

"Sexual assault" means any sexual offense under part V of chapter 707.

"Spouse" means a person who is lawfully married to another person under the laws of the State or is in a civil union.

(b) An employer shall provide paid sick leave annually to each of the employer's service workers. The paid sick leave shall be earned beginning January 1, 2018, or the date thereafter upon which the service worker commences employment, as follows:

(1) At a rate of at least one hour of paid sick leave for every forty hours actually worked; and

(2) In one-hour increments up to a maximum of forty hours per calendar year.

A service worker shall be entitled to carry over a maximum of forty unused earned hours of paid sick leave from the current calendar year to the following calendar year; provided that no service worker shall be entitled to carry over more than an aggregate of eighty hours of earned paid sick leave.

(1) If the service worker was hired before January 1, 2018, upon the completion of the six-hundred-eightieth hour of employment from January 1, 2018; or

(2) If the service worker was hired on or after January 1, 2018, upon the completion of the service worker's six‑hundred-eightieth hour of employment from the date of hire;

provided that the employer may agree to an earlier date of entitlement if desired. A service worker shall not be entitled to the use of earned paid sick leave if the service worker did not work an average of ten or more hours per week for the employer in the most recent complete calendar quarter.

(d) An employer shall be deemed to be in compliance with this section if:

(1) The employer offers any sick leave or other paid leave, or combination of other paid leave, that may be used for the purpose of subsection (g); and is earned at a rate greater than the rate in (b)(1) and (2); or

(2) The employer has a sick leave policy approved by the director.

For the purposes of this subsection, "other paid leave" may include paid vacation, personal days, or paid time off.

(e) An employer shall pay each service worker for paid sick leave at a pay rate equal to the greater of either the normal hourly wage for that service worker, or the minimum wage under section 387-2 for the pay period during which the employee used paid sick leave. For any service worker whose hourly wage varies depending on the work performed by the service worker, the "normal hourly wage" shall mean the average hourly wage of the service worker in the pay period prior to the one in which the service worker used paid sick leave.

(f) Upon the mutual consent of the service worker and employer, a service worker who chooses to work additional hours or shifts during the same or following pay period, in lieu of hours or shifts missed, shall not be deemed to have used earned paid sick leave for the hours or shifts missed.

(g) An employer shall permit a service worker to use the paid sick leave earned under this section for the following purposes:

(1) For a service worker's:

(A) Illness, injury, or health condition;

(B) Medical diagnosis, care, or treatment of a mental illness or physical illness, injury, or health condition; or

(2) For a service worker's child's or spouse's:

(A) Illness, injury, or health condition;

(B) Medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or

(h) If a service worker is a victim of family violence or sexual assault, an employer shall permit that service worker to use the paid sick leave earned under this section for the following purposes:

(1) For medical care or psychological or other counseling for physical or psychological injury or disability;

(2) To obtain services from a victim services organization;

(3) To relocate due to the family violence or sexual assault; or

(4) To participate in any civil or criminal proceedings related to or resulting from the family violence or sexual assault.

(i) Unless an employee policy or collective bargaining agreement provides for the payment of earned fringe benefits upon termination, no service worker shall be entitled to payment of unused earned paid sick leave under this section upon termination of employment.

(j) Nothing in this section shall be construed to:

(1) Prevent employers from providing more paid sick leave than is required under this section;

(2) Diminish any rights provided to any employee or service worker under a collective bargaining agreement;

(3) Preempt or override the terms of any collective bargaining agreement effective before January 1, 2018; or

(4) Prevent the parties to a valid collective bargaining contract from waiving the provisions herein, so long as the waiver of paid sick leave is clearly and unambiguously stated in any collective bargaining contract effective on or after January 1, 2018.

(k) A termination of a service worker's employment by an employer shall constitute a break in employment. If that service worker is subsequently rehired by the employer following a break in employment, the service worker shall:

(1) Begin to earn paid sick leave in accordance with this section; and

(2) Not be entitled to any unused hours of paid sick leave that had been earned prior to the service worker's break in service unless agreed to by the employer.

(l) An employer shall provide notice to each service worker of the following information:

(1) The entitlement to paid sick leave for service workers, the amount of paid sick leave provided to service workers, and the terms under which paid sick leave may be used; and

(2) That the service worker has a right to file a complaint with the department of labor and industrial relations for suspected violations of this section by the employer.

Employers may comply with this section by displaying a poster that contains the information required by this subsection and that is posted in a conspicuous place, accessible to service workers, at the employer's place of business."

PART II

SECTION 2. The legislature finds that victims of domestic violence often need to take leave from their employment to attend to various health or legal matters and that addressing such matters should not pose a risk to their personal health and well-being, financial security, or safety due to a fear of adverse consequences from their employers. Although state law currently requires that employers allow victim leave for victims of domestic or sexual violence, victim employees are required to exhaust all other paid and unpaid leave accrued for the calendar year before victim leave may be applied. Thus an employee may exhaust all sick leave in order to seek safety or medical attention for themselves or their minor child or to take legal action against an abuser, leaving little to no sick leave available for the rest of the calendar year.

The purpose of this part is to amend victim protections under Hawaii employment practices law to allow an employee to take victim leave, separate from family leave, rlated to domestic or sexual violence against the employee or the employee's minor child.

SECTION 3. Section 378-73, Hawaii Revised Statutes, is amended to read as follows:

"[[]§378-73[]] Relationship to other leaves. If an employee is entitled to take paid or unpaid leave pursuant to other federal, state, or county law, or pursuant to an employment agreement, a collective bargaining agreement, or an employment benefits program or plan, which may be used for the purposes listed under section 378-72(a), the employee shall exhaust such other paid and unpaid leave benefits before victim leave benefits under this chapter may be applied[~~. The~~]; provided that in the case of family leave taken by an employee pursuant to chapter 398, the employee need not exhaust family leave benefits before victim leave benefits may be taken. Except in the case of victim leave benefits under this section, the combination of such other paid or unpaid leave benefits that may be applied and victim leave benefits shall not exceed the maximum number of days specified under section 378-72(a)."

PART III

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on January 7, 2059.

THE SENATE	S.B. NO.	425
TWENTY-NINTH LEGISLATURE, 2017		S.D. 2
STATE OF HAWAII