Report Title:

Workers' Compensation; Average Weekly Wage Computation

Description:

Alters the workers' compensation formula for computing average weekly wages by clarifying that any injured airline employee who is a pilot or flight attendant, whether full time or part time, shall be entitled to workers' compensation benefits based on an average of actual hours worked during the previous 52-week period or portion thereof.

HOUSE OF REPRESENTATIVES

H.B. NO.

1449

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to workers' compensation.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to address Joanne Wai v. Hawaiian Airlines, et al., S.Ct. No. 24352, issued on July 23, 2004, wherein the court found that even though flight attendants work less than thirty-five hours per week, their contract, in accordance with federal aviation regulations, designates them as "full-time" employees. As such, their average weekly wages under section 386-51, Hawaii Revised Statutes, should be calculated at the minimum thirty-five hours per week and not their actual hours worked.

Because the legislature did not define "part-time" employees under section 386-51, Hawaii Revised Statutes, there is no prohibition on defining employees who work less than thirty-five hours per week as full-time employees.

The legislature finds that it was not the intention of section 386-51, Hawaii Revised Statutes, to provide a windfall for flight attendants or pilots who worked less than thirty-five hours per week and to be credited for additional hours that were not ever actually worked. Airline flight crew employees are unique in the way their actual work hours are determined and the legislature finds that it needs to clarify this section of the law pertaining to these classes of employment.

SECTION 2. Section 386-51, Hawaii Revised Statutes, is amended to read as follows:

"§386-51 Computation of average weekly wages. Average weekly wages shall be computed in a manner that the resulting amount represents most fairly, in the light of the employee's employment pattern and the duration of the employee's disability, the injured employee's average weekly wages from all covered employment at the time of the personal injury. In no event, however, shall an employee's average weekly wages be computed to be less than the employee's hourly rate of pay multiplied by thirty-five; provided that where the employee holds [part-time] employment of fewer than thirty-five hours per week, the employee's average weekly wages shall be the hourly rate at the place of employment where the injury occurred multiplied by the average hours worked in the fifty-two weeks (or portions thereof) preceding the week in which the injury occurred, for the calculation of temporary partial disability and temporary total disability benefits only. Notwithstanding anything in this section to the contrary, when calculating temporary partial disability or temporary total disability benefits for full-time or part-time airline employees who are pilots or flight attendants, the average weekly wage for these employees shall be the hourly rate at the place of employment where the injury occurred, multiplied by the average hours worked in the fifty-two weeks preceding the week in which the injury occurred. Other benefits including permanent partial disability, permanent total disability, and death shall be calculated as if the employee had been a full-time employee.

(1) Where appropriate and feasible, computation shall be made on the basis of the injured employee's earnings from covered employment during the twelve months preceding the employee's personal injury; but if during that period, the employee, because of sickness or similar personal circumstances was unable to engage in employment for one or more weeks then the number of those weeks shall not be included in the computation of the average weekly wage.

(2) Where an employee at the time of the injury was employed at higher wages than during any other period of the preceding twelve months then the employee's average weekly wages shall be computed exclusively on the basis of the higher wages.

(3) Where, by reason of the shortness of the time during which the employee has been in the employment or the casual nature or terms of the employment, it is not feasible to compute the average weekly wages on the basis of the injured employee's own earnings from that employment, regard may be had to the average weekly wages which during the twelve months preceding the injury was being earned by an employee in comparable employment.

(4) Except as otherwise provided, the total average weekly wages of any employee shall be computed at a lower amount than the average weekly wages earned at the time of the injury by an employee in comparable employment engaged as a full-time employee on an annual basis in the type of employment in which the injury occurred.

(5) If an employee, while under twenty-five years of age, sustains a work injury causing permanent disability or death, the employee's average weekly wages shall be computed on the basis of the wages which the employee would have earned in the employee's employment had the employee been twenty-five years of age.

(6) The director may issue rules for the determination of the average weekly wages in particular classes of cases, consistent with the principles laid down in the first paragraph of this section."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken.

SECTION 5. This Act shall take effect on July 1, 2005.

INTRODUCED BY:

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