Hawaiʻi Minimum Wage Compliance and Damages Must Be Measured “Per Hour,” Rejecting Workweek Averaging Under HRS §§ 387-2 and 387-12

1. Introduction

In Bolos v. Waldorf=Astoria Management LLC (Supreme Court of Hawaiʻi, May 8, 2026), the Hawaiʻi Supreme Court answered a certified question from the United States District Court for the District of Hawaiʻi: when assessing minimum wage compliance and damages under HRS §§ 387-2 and 387-12, is the proper unit of measure the workweek (as some federal Fair Labor Standards Act (FLSA) cases permit) or each hour?

The case arose from allegations by spa workers (massage therapists, estheticians, nail technicians, fitness instructors, and hair stylists) at the Grand Wailea resort. They alleged they were compensated only by commissions generated when customers purchased spa services, yet they were required to remain onsite and perform non-commission tasks (cleaning, laundry, retail shifts, inventory, ordering supplies) for which they often received no pay. The central issue was whether the employer could defend against a minimum wage claim by “averaging” commissions across all hours in a workweek—thereby potentially making some hours effectively unpaid—so long as the weekly average met or exceeded the statutory minimum.

2. Summary of the Opinion

The court held that the per-hour unit applies. Under HRS § 387-2, employers must pay at least the minimum wage for each hour worked, and HRS § 387-12 enforces that hourly guarantee on a per-violation basis. The court rejected importing the FLSA’s workweek-averaging approach into Hawaiʻi law, emphasizing that the Hawaiʻi statute’s text is unambiguous: “per hour” means “for each hour,” and nothing in the Hawaiʻi minimum wage statutes authorizes averaging across a week.

3. Analysis

3.1 Precedents Cited

A. Hawaiʻi statutory-interpretation framework (plain meaning first)

  • Alpha, Inc. v. Bd. of Water Supply — The court reiterated the starting point: “Statutory interpretation starts with the statute’s words.” This anchored the analysis in the text “per hour,” rather than in policy arguments favoring administrative convenience or federal alignment.
  • Saranillio v. Silva — Reinforced that courts give words their ordinary meaning unless the statute requires otherwise; this supported treating “per hour” as an ordinary, determinate unit (each hour), not a flexible accounting concept (weekly averaging).
  • Rodriguez v. Mauna Kea Resort LLC (quoting State v. Tran) — Confirmed reliance on well-accepted dictionaries when terms are undefined. This provided methodological support for defining “per” as “for each; for every.”
  • State v. Demello (quoting State v. Kalama) — Provided the limiting principle on legislative history: where text is clear, legislative history should not be used to “cloud” it. The court nevertheless addressed legislative-intent arguments and found they also favored an hourly rule.

B. Federal FLSA workweek-averaging authority, used as a contrast—not a template

  • Douglas v. Xerox Bus. Servs., LLC — The key federal comparator. The Ninth Circuit treated the FLSA’s minimum wage provision as textually ambiguous because it refers to employees “who in any workweek” are engaged in commerce, creating interpretive “space” for a weekly unit. The Hawaiʻi Supreme Court used Douglas to highlight the decisive difference: HRS § 387-2 does not include “workweek”, so Hawaiʻi law lacks the textual ambiguity that drove the federal analysis toward agency guidance and caselaw.

C. State-law “per hour” cases supporting an hourly rule

  • Carranza v. Dovex Fruit Co. — A closely aligned authority from the Washington Supreme Court interpreting nearly identical “per hour” language. The Hawaiʻi Supreme Court agreed with Carranza that “per hour” unambiguously forecloses workweek averaging and does not limit pay structures, but does impose an hourly minimum floor.
  • Abarca v. Werner Enterprises, Inc. and Petrone v. Werner Enterprises, Inc. — Federal decisions interpreting state minimum wage provisions mirroring “per hour” language; cited as consistent with the hourly approach.
  • Armenta v. Osmose, Inc., Porteous v. Capital One Servs. II, LLC, and Anderson v. S. Home Care Servs., Inc. — Additional decisions recognizing that “per hour” style statutory wording typically requires per-hour compliance rather than averaging.

D. Cases defendants relied on—distinguished because those statutes or regulations used “workweek” or similar signals

  • Wilken v. Cascadia Behavioral Health Care, Inc. — Distinguished because Oregon regulations measured compliance over a pay period, supplying the missing textual/regulatory basis for averaging that Hawaiʻi lacks.
  • Masterson v. Federal Express Corp. — Distinguished because Pennsylvania’s statutory scheme expressly referred to a workweek standard, unlike HRS § 387-2 and HRS § 387-12.
  • Roop v. Wrecker & Storage of Brevard Inc. — Distinguished on the ground that Florida’s statutory text differed (“all hours worked” rather than “each hour”), again underscoring that Hawaiʻi’s “per hour” phrasing is materially stricter.

E. Contracting around wage protections and agency deference

  • Balasanyan v. Nordstrom, Inc. — Used for the proposition that parties cannot contract away minimum wage rights; this complemented HRS § 387-4.5 (“No provision of this chapter may in any way be contravened or set aside by private agreement.”).
  • Rosehill Trustee of Linda K. Rosehill Revocable Tr. dated August 29, 1989 v. State — Cited for the proposition that agency deference applies only where statutory text is ambiguous. Because “per hour” was unambiguous, the court refused to defer to a Department of Labor and Industrial Relations wage-and-hour manual excerpt and declined to take judicial notice of the parties’ extra-record materials.
  • McGuire v. County of Hawaiʻi — Cited not for the wage rule itself, but to emphasize cooperative federalism and the value of certified questions when state law is unsettled.

3.2 Legal Reasoning

A. The textual holding: “per hour” means “for each hour”

The decision turns on a straightforward textual syllogism:

  • HRS § 387-2 requires payment “at the rate of not less than” the applicable minimum wage “per hour.”
  • “Per” means “for each; for every” (dictionary definitions).
  • Therefore, the statute guarantees at least the minimum wage for each hour worked, and not merely a compliant average over a longer period.

On this reading, weekly averaging would impermissibly allow “zero pay” for some hours so long as other hours (e.g., commission-heavy service time) raise the weekly average. The court treated that outcome as flatly inconsistent with the Legislature’s choice of unit—the hour.

B. Why FLSA workweek concepts do not migrate into Hawaiʻi minimum wage law

The court did not deny that Hawaiʻi’s wage-and-hour statutes were influenced by the FLSA. Instead, it held that influence does not justify rewriting clear Hawaiʻi text. It emphasized:

  • The FLSA’s minimum wage provision includes “in any workweek,” the phrase that drove ambiguity in Douglas v. Xerox Bus. Servs., LLC.
  • Hawaiʻi’s HRS § 387-2 omits “workweek,” so the interpretive “space” present in federal law is absent in state law.

C. Structural cues within Chapter 387: “workweek” appears elsewhere when the Legislature wants it

A notable feature of the opinion is its use of internal statutory contrast:

  • HRS § 387-1(12) (dual coverage) uses “workweek,” but the court treated this as a coverage rule (which law applies), not a measurement rule (how compliance is assessed under HRS § 387-2).
  • The court observed that “workweek” is textually linked in that provision to overtime concepts, consistent with HRS § 387-3(a), which expressly incorporates a workweek unit for overtime—reinforcing that the Legislature knows how to write a workweek rule when it intends one.
  • HRS § 387-6 requires daily records of hours worked; the court reasoned that daily/hourly tracking aligns with an hourly compliance model, whereas a pure averaging model could be satisfied with weekly totals.

D. Commissions remain permissible—hourly compliance is the nonwaivable floor

The court was careful to preserve compensation flexibility:

  • Commission-based pay is not prohibited (the opinion references HRS § 387-3(c) as contemplating commission-based pay).
  • But commissions cannot function as an after-the-fact offset for unpaid hours; the employer must ensure that, for each hour worked, the employee receives at least the statutory minimum (with any necessary “make-up” beyond commissions).
  • This is reinforced by HRS § 387-4.5, which blocks private agreements that contravene Chapter 387’s protections.

E. Legislative intent as confirmation (not a substitute for text)

Although the court deemed the text dispositive, it addressed intent to rebut the employer’s policy narrative. It cited early materials showing an aim to “secure the highest minimum wage rate” compatible with economic viability, and later materials indicating the Legislature wanted the “minimum wage most beneficial to the employee” to apply in dual-coverage situations. The court treated hourly enforcement as more protective than averaging because it prevents “uncompensated hours” from disappearing into an arithmetic mean.

3.3 Impact

A. A clear compliance rule for Hawaiʻi employers

After Bolos, Hawaiʻi employers cannot defend minimum wage claims under HRS §§ 387-2 and 387-12 by showing that total weekly pay divided by total hours meets the minimum wage. Compliance must be demonstrated hour-by-hour.

B. Commission-heavy industries face heightened exposure for “nonproductive” or “downtime” hours

The decision is particularly consequential for sectors where workers:

  • are paid primarily by commissions or piece rates,
  • must remain on premises,
  • perform mixed duties (selling/servicing plus cleaning, stocking, setup, waiting), and
  • may experience demand-driven fluctuations (e.g., spas, salons, hospitality retail, certain service teams).

If such workers perform required tasks without commission opportunities, Bolos supports claims that each of those hours must still meet the minimum wage floor.

C. Damages framing: “each hour” as the remedial unit

The court’s interpretation ties damages to “each” hourly violation. This matters because it prevents remedies from being diluted by high-earning hours elsewhere in the week; under an averaging approach, “good” hours could wash out “bad” hours. Bolos rejects that logic as inconsistent with the statutory guarantee.

D. Reduced role for informal agency guidance where the statute is clear

By refusing to defer to the DLIR manual in the absence of ambiguity (and declining judicial notice of the manual materials), the court signaled that compliance norms must track statutory text first, rather than nonbinding guidance that might implicitly adopt federal approaches.

4. Complex Concepts Simplified

  • Certified question: A federal court asks a state supreme court to answer an unresolved question of state law. The state court’s answer guides the federal case.
  • Unit of measure (per hour vs. per workweek): Whether the law checks minimum wage compliance hour-by-hour (each hour must meet the floor) or by averaging all pay across the week.
  • Workweek averaging: Adding all pay in a week and dividing by total hours to see if the average hourly rate meets the minimum; this can allow some hours to be unpaid if other hours are highly paid.
  • Dual coverage (HRS § 387-1(12)): A rule that determines whether federal or state wage law applies when both could cover the employee; it does not necessarily dictate the compliance metric inside the chosen law.
  • Agency deference: Courts sometimes defer to an agency’s interpretation of ambiguous statutes. If the statute is unambiguous, courts apply the text without deferring.
  • Judicial notice: A court’s recognition of certain facts/materials without formal proof. Here, the court declined to judicially notice the parties’ extra-record agency materials because the statutory text sufficed.

5. Conclusion

Bolos v. Waldorf=Astoria Management LLC establishes a clear, worker-protective rule in Hawaiʻi: minimum wage compliance and damages under HRS §§ 387-2 and 387-12 are measured per hour, not averaged per workweek. The court grounded the holding in the statute’s unambiguous language—“per hour” means “for each hour”—and reinforced it through statutory structure, legislative purpose, and persuasive authority from jurisdictions interpreting similar “per hour” text.

The broader significance is practical and doctrinal: the decision prevents uncompensated labor from being erased by weekly arithmetic, preserves flexible pay structures like commissions while enforcing an hourly floor, and underscores a textualist approach to Hawaiʻi wage protections—one that will likely influence future disputes involving mixed-duty work, downtime, and commission or piece-rate compensation models.