§78-13  Salary periods.  (a)  Unlessotherwise provided by law, all officers and employees shall be paid at leastsemimonthly except that substitute teachers, part-time hourly rated teachers ofadult and evening classes, and other part-time, intermittent, or casualemployees may be paid once a month and that the governor, upon reasonablenotice and upon determination that the payroll payment basis should beconverted from predicted payroll to after-the-fact payroll, may allow aone-time once a month payroll payment to all public officers and employees toeffect a conversion to after-the-fact payroll as follows:

(1)  The implementation of the after-the-fact payrollwill commence with the June 30, 1998, pay day, which will be delayed to July 1,1998;

(2)  The July 15, 1998, pay day will be delayed toJuly 17, 1998;

(3)  The July 31, 1998, pay day will be delayed toAugust 3, 1998;

(4)  The August 14, 1998, pay day will be delayed toAugust 19, 1998;

(5)  The August 31, 1998, pay day will be delayed toSeptember 4, 1998;

(6)  The September 15, 1998, pay day will be delayedto September 18, 1998; and

(7)  Thereafter, pay days will be on the fifth and thetwentieth of every month.  If the fifth and the twentieth fall on a stateholiday, Saturday, or Sunday, the pay day will be the immediately precedingweekday.

The implementation of the after-the-fact payrollshall not be subject to negotiation under chapter 89.

(b)  If an employee has been working for theState for at least six months, has no paid leave accumulated, and has anexisting salary overpayment balance:

(1)  The employee may be paid the employee's salary onthe same pay dates and for the same pay periods as non-salaried employees.

(2)  Upon accumulation of eighty hours of paid leave,the employee shall be paid the employee's salary on the same pay dates and forthe same pay periods as salaried employees.

(c)  If an employee has been working for theState for at least six months and has had at least two incidents of leave whichresults in salary overpayment within the past six months:

(1)  The employee may be paid the employee's salary onthe same pay dates and for the same pay period as non-salaried employees.

(2)  If there are no incidents of leave which resultin salary overpayment for a subsequent four-month period, the employee shall bepaid the employee's salary on the same pay dates and for the same pay periodsas salaried employees.

(d)  The implementation of subsections (b) and(c) shall not be subject to negotiation under chapter 89.

(e)  All employees, except those belonging tobargaining units 5 and 7, hired on or after July 1, 1998, shall be paid on thesame pay dates and for the same pay periods as non-salaried employees. [L 1961,c 130, §1; am L 1963, c 60, §1; Supp, §5-14.5; HRS §78-13; am L 1974, c 129,§1; am L 1996, c 80, §1; am L 1997, c 355, §1; am L 1998, c 109, §1 and c 110,§3]

 

Revision Note

 

  Subsection (e)redesignated pursuant to §23G-15(1).

 

Attorney General Opinions

 

  Payments on biweeklyrather than on semimonthly basis held valid.  Att. Gen. Op. 64-11.

 

Case Notes

 

  District court didnot abuse its discretion in granting plaintiffs' motion for a preliminaryinjunction, where court granted a preliminary injunction against operation ofAct 355, L 1997 (which amended this section), State's "pay lag" law,on the ground that it impaired the obligations of the employees' collectivebargaining agreement in violation of the contract clause of the U.S.Constitution.  183 F.3d 1096.

  Plaintiffs' motionfor a preliminary injunction granted, where plaintiffs filed motion seeking toenjoin defendants from delaying payroll under Act 355, L 1997 (which amendedthis section), with respect to University of Hawaii faculty members, arguingthat Act 355 violated the contract clause of the U.S. Constitution because afive-day delay in pay violated the collective bargaining agreement between theState and the faculty members at the University.  16 F. Supp. 2d 1242.

  Where there was noexisting contract that Act 355, L 1997 (amending this section), impaired, nocontracts clause violation possible and injunction no longer needed; the casewas moot.  125 F. Supp. 2d 1237.

  Based upon thelegislative history of this section, and where it could not be said that theobjective of Act 355, Session Laws of Hawaii 1997, which was to balance thestate budget by amending this section, was not achieved, the specificimplementation dates set forth in this section were mandatory.  111 H. 168, 140P.3d 401.

  The Act 355, SessionLaws of Hawaii 1997 amendment to this section, which essentially altered thedates when public employees are to be paid, did not violate article XIII, §2 ofthe Hawaii constitution nor chapter 89 inasmuch as they did not prohibit astate employer from changing the pay dates of its employees; thus, the Act 355amendment was not unconstitutional.  111 H. 168, 140 P.3d 401.

  Where plaintiffsfailed to demonstrate that bargaining over pay dates was one of the coresubjects of collective bargaining that triggers a violation of article XIII, §2of the Hawaii constitution, and failed to provide the supreme court with theircollective bargaining agreement to support their contention that pay dates arebargainable, and these pay dates were not specifically incorporated into theircontract, the Act 355, Session Laws of Hawaii 1997 amendment to this section tounilaterally alter the "traditional practice" of being paid on thefifteenth day and last day of the month did not violate their right tocollectively bargain pay periods.  111 H. 168, 140 P.3d 401.