§388-11  Employees remedies.  (a) Action by an employee to recover unpaid wages may be maintained in any court ofcompetent jurisdiction by any one or more employees for and in behalf ofoneself or themselves, or the employee or employees may designate an agent orrepresentative to maintain the action.

(b)  Except for claims filed by individualsemployed in a bona fide executive, administrative, or professional capacity orin the capacity of an outside salesperson, whenever the director of labor andindustrial relations determines that wages have not been paid, and that theunpaid wages constitute an enforceable claim, the director may upon the requestof the employee take an assignment in trust for the wages without being boundby any of the technical rules respecting validity of any such assignments andmay bring any legal action necessary to collect such claim.  With the consentof the assigning employee at the time of the assignment the director may settleand adjust any such claim to the same extent as might the assigning employee. No claim shall be accepted by the director after the expiration of one yearfrom the date the wages are due and payable.

(c)  The court in any action brought under thissection shall, in addition to any judgment awarded to the plaintiff orplaintiffs, allow interest of six per cent per year from the date the wageswere due, costs of action, including costs of fees of any nature, andreasonable attorney's fees, to be paid by the defendant.  The director shallnot be required to:

(1)  Pay the filing fee or other costs or fees of anynature, including the opposing party's fees and costs; or

(2)  File a bond or other security of any nature, inconnection with such action, with proceedings supplementary thereto, or as acondition precedent to the availability to the director of any process in aidof such action or proceedings.  The director may join various claimants in onepreferred claim or lien, and in case of suit join them in one cause of action.

(d)  When the business of any person,corporation, company, or firm is suspended as a result of a writ of executionor attachment or is placed in the hands of a receiver, trustee, or assignee forcreditors, then in all such cases claims for wages of not more than $600 toeach claimant, earned within one year of the date such business is suspended orplaced in the hands of a receiver, trustee, or assignee for creditors, shall bepaid in full prior to the payment of taxes or any other debts except a debtsecured by a mortgage duly recorded before the wages were earned.

(e)  Any employee desiring to enforce theemployee's claim for wages under subsections (d), (e), and (f) of this sectionshall present a statement under oath showing the amount due, the kind of workfor which the wages are due, and when the work was performed to the office orperson charged with such property within twenty days after the seizure thereofon any execution or writ of attachment or within sixty days after the propertyhas been placed in the hands of a receiver, trustee, or assignee forcreditors.  Any interested party may contest any such claim or part thereof byfiling sworn exception thereto with such officer or person within ten daysafter the period for filing claims, and thereupon the claimant shall be requiredto reduce the claimant's claim to judgment before any part thereof shall bepaid.

(f)  No claim shall be paid until after theexpiration of the time for filing and contesting claims.  If the funds realizedfrom the sale of the property are insufficient to pay the total claims forwages presented, then the funds shall be prorated on such claims. [L 1963, c158, pt of §3; Supp, §95-10; am L 1967, c 13, §1; HRS §388-11; am L 1973, c 8,§1; gen ch 1985, 1993; am L 1994, c 84, §2; am L 1999, c 251, §4]

 

Rules of Court

 

  Collection suits, maintenance of, see HRCP rules 17(a),18(a), 20, 23.

 

Case Notes

 

  Hawaii courts should be given discretion to enhance thelodestar fee when an attorney has been retained on a contingency fee basis; a"reasonable fee" under Hawaii fee-shifting statutes is an amount offees that "would attract competent counsel," in light of all thecircumstances, and that under certain circumstances the lodestar fee may bemultiplied by a factor to achieve a "reasonable" award of fees.  96H. 408, 32 P.3d 52.

  Where a court awards attorney's fees pursuant to fee-shiftingstatutes in cases involving contingency fee arrangements, a trial judge shouldnot be limited by the contingency fee arrangement between a plaintiff and hisor her counsel in determining a reasonable fee; plaintiff is thus notnecessarily barred from recovery of a doubled lodestar fee.  96 H. 408, 32 P.3d52.