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Electronically Filed Supreme Court SCCQ-XX-XXXXXXX 08-MAY-2026 08:08 AM Dkt. 161 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
LAURIE BOLOS, et al., on behalf of herself and all others similarly situated, Plaintiffs-Appellants,
vs.
WALDORF=ASTORIA MANAGEMENT LLC operating as Grand Wailea, a Waldorf Astoria Resort, et al., Defendants-Appellees.
SCCQ-XX-XXXXXXX
CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI (CASE NO. 1:23-cv-00104-JMS-KJM)
MAY 8, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE NAKAMOTO, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY EDDINS, J.
I.
The United States District Court for the District of Hawaiʻi
asks us to answer a certified question. What unit of measure
applies when assessing minimum wage compliance and damages under *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Hawaiʻi Revised Statutes (HRS) §§ 387-2 and 387-12? Is it the
per-workweek unit used under the federal Fair Labor Standards
Act (FLSA)? Or is it the per-hour unit?
Our answer: the per-hour unit applies.
HRS § 387-2 (2002) requires employers to pay employees
wages “at the rate of not less than” the applicable minimum wage
“per hour.” The word “per” means “for each.”
HRS § 387-12 (2015 & Supp. 2022) enforces that requirement.
The remedy follows the rule – per hour, for “each” violation.
The statutes mean what they say and say what they mean.
Employers must pay their employees at least the minimum wage for
each hour of work. Nothing in HRS §§ 387-2 or 387-12 allows
employers to average compensation across a workweek to satisfy
minimum wage obligations.
Workweek averaging allows employers to pay workers nothing
for some hours, so long as earnings from other hours make up the
difference. The Legislature did not authorize that result. It
directed employers to pay their employees a minimum wage “per
hour.” That means for each hour. Not on average. Not after
the fact. For each hour worked.
II.
Plaintiffs are massage therapists, estheticians, nail
technicians, fitness instructors, and hair stylists who worked
at Defendants’ Grand Wailea hotel spa in South Maui.
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The hotel required them to work a minimum number of hours
and shifts each week. But it did not pay by the hour. Rather,
the hotel compensated its spa workers only through commissions,
a percentage of the price charged for a spa service.
Commissions were only generated when a client purchased a
service. No commission meant no compensation.
But no commission did not mean they did no work.
When commission-generating work dried up, Plaintiffs still
had to remain on-site. They waited for clients and performed
other work for the hotel. This labor included cleaning and
preparing treatment rooms, laundering hotel towels and linens,
sweeping floors, taking inventory, and ordering supplies. The
hotel also assigned Plaintiffs to work shifts in the retail
store adjacent to the spa.
Plaintiffs allege that this unpaid work “often comprised
the majority or the entirety of their scheduled shifts.” They
worked. They were not paid for that time.
Plaintiffs sued in federal court. They alleged, among
other things, that Defendants failed to pay minimum wage under
HRS §§ 387-2 and 387-12.
The U.S. District Court certified a question to this court.
We welcome the opportunity. Federalism works best when
state and federal courts collaborate on unsettled questions of
state law. See McGuire v. County of Hawaiʻi, 155 Hawaiʻi 475,
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477, 567 P.3d 180, 182 (2025) (“we appreciate the federal
courts’ respect for the sovereignty of Hawaiʻi by inviting our
court to first answer an unsettled area of state law”).
We accepted the court’s question. See Hawaiʻi Rules of
Appellate Procedure Rule 13.
Then we ordered briefing, which concluded March 16, 2026.
We held oral argument on April 28, 2026. We answer the
certified question.
The choice between these two units of measure is not
academic. It carries real-life consequences for Hawaiʻi’s
workforce.
Consider an example. Hawaiʻi’s current minimum wage is $16
per hour. HRS § 387-2(a)(10). A massage therapist works 30
hours in a week. She spends 10 hours giving massages and 20
hours cleaning, doing laundry, and staffing the retail store for
the hotel. She earns $500 in massage commissions for the week.
Nothing more.
Under the per-hour unit, the therapist is entitled to at
least $16 for each hour of work. No exceptions. If the hotel
pays her nothing for the 20 hours she spends cleaning, doing
laundry, and staffing the store, it violates the minimum wage
law. The massage therapist is owed $320 for those 20
uncompensated hours.
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The per-workweek unit gives the hotel an out. It can avoid
paying the massage therapist $16 for each hour she works, as
long as her average hourly rate that workweek is at least the
statutory minimum. The therapist’s total compensation ($500)
divided by her total hours worked (30) yields an average hourly
rate of $16.67. That clears the minimum. Under weekly
averaging, the hotel satisfied the statute, even though it paid
the therapist nothing for two-thirds of her working hours.
The per-workweek unit cuts deeper during a slow commission
week. What if the therapist earned only $400 in commissions for
8 hours of massages? She still worked 22 additional hours that
week. Across 30 hours, her average hourly pay dips to $13.33.
Below the statutory minimum.
Both units find a violation. But the remedies diverge.
Under the per-hour unit, she is owed $352 - $16 for each of the
22 uncompensated hours. Under the per-workweek unit, what is
she owed? The shortfall in the average gives no answer. Per-
hour or per-workweek? Calculated how? At what rate? Workweek
averaging asks the question. The per-unit answers it.
Hawaiʻi’s working families feel the difference.
III.
We hold that Hawaiʻi’s minimum wage law requires the per-
hour unit of measure. The text compels this result.
Legislative intent confirms it.
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A. Text
“Statutory interpretation starts with the statute’s words.”
Alpha, Inc. v. Bd. of Water Supply, 154 Hawaiʻi 486, 490, 555
P.3d 173, 177 (2024). Unless the statute itself compels a
different reading, we take words at face value. Saranillio v.
Silva, 78 Hawaiʻi 1, 10, 889 P.2d 685, 694 (1995) (this court
“give[s] words their ordinary meaning unless something in the
statute requires a different interpretation”). When a term is
not statutorily defined, we turn to “legal or other well
accepted dictionaries as one way to determine the ordinary
meaning.” Rodriguez v. Mauna Kea Resort LLC, 156 Hawaiʻi 289,
293, 574 P.3d 309, 313 (2025) (quoting State v. Tran, 154 Hawaiʻi
211, 221, 549 P.3d 296, 306 (2024)) (brackets omitted).
HRS § 387-2 declares that “every employer shall pay to each
employee employed by the employer, wages at the rate of not less
than[] . . . $ [applicable minimum wage] per hour.” (emphasis
added).
“Per” is undefined in the statute. Black’s Law Dictionary
defines “per” to mean “for each; for every.” Per, Black’s Law
Dictionary (12th ed. 2024). Merriam-Webster agrees: “for each.”
Per, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/per [https://perma.cc/J3RF-KGRW].
These words require employers to pay their employees at
least the minimum wage for each hour. The text does not
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prescribe a particular pay structure. But it does guarantee a
minimum amount of compensation for each hour worked. Pay
structure is irrelevant. Cf. Carranza v. Dovex Fruit Co., 416
P.3d 1205, 1210 (Wash. 2018) (“The statute does not restrict
employers to a specific compensation structure, but it does
require an employer to pay its employees at least minimum wage
‘per hour.’”).
Nothing in HRS § 387-2 indicates that this per-hour
directive may be sidestepped through weekly averaging. The
statute is straightforward. The hour is the unit of measure.
Contrast the FLSA. Defendants urge us to adopt the
workweek-averaging approach. The Ninth Circuit determined that
the FLSA’s text is ambiguous on this question. Douglas v. Xerox
Bus. Servs., LLC, 875 F.3d 884, 886-87 (9th Cir. 2017). The
FLSA provides that “[e]very employer shall pay to each of his
employees who in any workweek is engaged in commerce . . . not
less than . . . $7.25 an hour.” 29 U.S.C. § 206(a)(1)(C)
(emphasis added).
Douglas recognized that the phrase “in any workweek”
injected ambiguity, signaling that the hour might not be the
sole measure. 875 F.3d at 886. Unable to resolve the question
on text alone, the court turned to agency guidance and
persuasive caselaw. Id. at 887.
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HRS § 387-2 omits “workweek.” This choice matters. The
FLSA leaves room for a different measure. Our law does not. No
textual clue leaves HRS § 387-2 “open to an interpretation”
permitting workweek averaging. Id. at 886. The hour stands
alone. There is no ambiguity.
“Workweek” is also absent from the minimum wage law’s
enforcement provision, HRS § 387-12. That provision, too,
contains no hint that something other than an hour could be the
relevant measure. Contra Masterson v. Federal Express Corp.,
No. 07-CV-2241, 2008 WL 5189342, at *4 (M.D. Pa. Dec. 10, 2008)
(weekly averaging allowed where Pennsylvania’s minimum wage law
“expressly promulgated a workweek standard for assessing
criminal penalties”).
Defendants read Douglas another way. They stress that the
Ninth Circuit declined to hold that the FLSA’s “in any workweek”
language answers the unit-of-measure question on its own. But
the language matters for a different reason. It creates
interpretive space.
HRS § 387-2’s text carries no such ambiguity. “Per hour”
means per hour.
Defendants raise another textual argument. They point to
HRS § 387-1(12) (2015), the dual-coverage rule that determines
which law applies when an employee is subject to both federal
and state wage requirements. It uses the word “workweek.”
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This shows the Legislature “expressly contemplates a
workweek measure,” Defendants claim. Not so.
HRS § 387-1(12) is a coverage rule. The Legislature
amended it to “provide[] that the minimum wage most beneficial
to the employee (between local law and the [FLSA]) shall apply.”
H. Stand. Comm. Rep. No. 230, in 1962 House Journal, at 355.
The provision decides which regime controls. It does not govern
how compliance with either regime is measured.
The statute reads, in part, that an employee is not covered
by Hawaiʻi’s law when “the minimum wage which may be paid the
employee or maximum hours which the employee may work during any
workweek without the payment of overtime, are prescribed by the
federal [FLSA].” HRS § 387-1(12).
But it adds a proviso: “if the minimum wage which may be
paid the employee under the [FLSA] for any workweek is less than
the minimum wage prescribed by section 387-2, then section 387-2
shall apply[.]” Id.
Look at where “workweek” appears, and where it does not.
The statute’s first use of “workweek” concerns overtime.
Sandwiched between “maximum hours” and “payment of overtime,”
the term connects to Hawaiʻi’s overtime statute, HRS § 387-3(a)
(2015). That provision expressly incorporates the workweek
unit. Not minimum wage.
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The other uses describe the FLSA’s minimum wage framework,
not Hawaiʻi’s. The Legislature invokes the workweek when
referring to the federal statute, “minimum wage which may be
paid . . . under the [FLSA] for any workweek[.]” Id. But when
stating HRS § 387-2’s requirements, it drops the term entirely,
“minimum wage prescribed by section 387-2[.]” Id.
This contrast is deliberate. The Legislature knew the word
“workweek.” It used it freely when discussing the FLSA and
overtime. It chose not to use it when describing Hawaiʻi’s
minimum wage standard. That choice counsels against grafting
the FLSA’s workweek measure onto HRS § 387-2.
The Legislature also required employers to maintain daily
records of employees’ hours worked. See HRS § 387-6 (2015).
That requirement would be superfluous under a workweek-averaging
model. Weekly totals would suffice. Tracking each day makes
sense only if each hour of work carries independent legal
significance. It does.
Defendants offer another textual argument. They say the
Legislature used “an hour” and “per hour” interchangeably in
different amendments to HRS § 387-2. Sure, but this point
doesn’t help them.
Both phrases fix the hour as the unit of measure. Neither
invokes the workweek. Neither hints at averaging. Averaging
has no home in this text.
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None of this means employers lose flexibility. Employers
and employees can agree to use alternative pay structures like
commissions. See HRS § 387-3(c) (contemplating commission-based
pay). But they may not “contract away an employee’s right to
earn a minimum wage for each hour worked.” Balasanyan v.
Nordstrom, Inc., 913 F. Supp. 2d 1001, 1008 (S.D. Cal. 2012);
see HRS § 387-4.5 (2015) (“No provision of this chapter may in
any way be contravened or set aside by private agreement.”).
To be clear, nothing in our holding prohibits commission-
based pay. Employers remain free to compensate workers through
commissions or any other arrangement the parties agree to, so
long as they satisfy the statutory minimum for each hour worked.
HRS § 387-2 sets a floor, not a formula.
An employer who pays commissions complies with the statute
when the worker receives at least the minimum wage for each hour
worked. If commissions fall short in any given hour, the
employer must make up the difference.
The text is unambiguous. HRS § 387-2 requires employers to
pay their employees a minimum wage per hour. The per-hour unit
applies.
B. Legislative Intent
The text resolves the certified question. “[W]e do not
resort to legislative history to cloud a statutory text that is
clear.” State v. Demello, 136 Hawaiʻi 193, 197, 361 P.3d 420,
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424 (2015) (quoting State v. Kalama, 94 Hawaiʻi 60, 64, 8 P.3d
1224, 1228 (2000)).
But Defendants lean heavily on legislative history and
statutory purpose. We address their arguments. They fail on
these grounds too. Every indicator of legislative intent tells
the same story. The hour wins.
Hawaiʻi looked to the FLSA in crafting its wage and hour
law. No one disputes that. But lockstep with the FLSA’s
minimum wage protections was never the goal. Early legislative
materials make this plain. The Hawaiʻi legislature aimed to
“conform” its bill “more closely to [the FLSA] . . . with the
hope of insuring that it be clear that the purpose of the Act is
to secure the highest minimum wage rate for labor (within the
fixed limits prescribed) that will be compatible with a
continuance of the industry in full operation.” 1941 Senate
Journal, at 150.
The objective was securing the highest possible wage
protections for Hawaiʻi workers. Not cloning the federal scheme.
The Legislature amended the dual-coverage provision to
ensure that “the minimum wage most beneficial to the employee
(between local law and the [FLSA]) shall apply.” H. Stand.
Comm. Rep. No. 230, in 1962 House Journal, at 355. The
Legislature contemplated that state and federal protections may
diverge. And it chose the more protective regime.
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At its core, Hawaiʻi’s minimum wage law embodies a promise
to working people. Every hour of labor has value. Every hour
of labor must be compensated.
The law does not rank hours by profitability. An hour
spent sweeping floors warrants the same dignity as an hour spent
giving massages.
The statute makes a promise. For each hour. For every
worker.
The per-hour unit honors that promise. It “safeguard[s]”
the “well-being of workers” the Legislature sought to protect.
21st Leg. of Terr. of Haw., Special Sess., ch. 259C-1 (1941).
The per-workweek unit does the opposite. It tolerates
uncompensated hours, so long as the weekly average clears the
floor. The minimum wage becomes an arithmetic exercise, not a
protection. See Carranza, 416 P.3d at 1209-13.
Workweek averaging “does not promote an environment in
which a worker is ensured a fair day’s pay for a fair day’s
work.” Norceide v. Cambridge Health Alliance, 814 F. Supp. 2d
17, 25 (D. Mass. 2011) (internal citation omitted).
Defendants maintain that the workweek unit benefits workers
by accommodating commission-based pay structures that allow
higher total compensation. We disagree.
Employers remain free to use commissions to supplement the
minimum wage. But the minimum wage is a baseline, not a
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balancing act. Commissions earned for massages cannot offset
unpaid hours spent laundering hotel linens. The Legislature did
not design the statute to work that way.
C. Other Jurisdictions
We are not alone in this reading.
In Carranza, the Washington Supreme Court analyzed language
nearly identical to HRS § 387-2. Washington’s minimum wage act
requires employers to pay workers “at a rate of not less than
[the applicable minimum wage] per hour.” 416 P.3d at 1208. The
court held that this text “unambiguously” forecloses workweek
averaging. Id. at 1210. We agree with Carranza’s reasoning.
Other courts too. In Abarca v. Werner Enterprises, Inc.,
774 F. Supp. 3d 1125, 1147 (D. Neb. 2025), and Petrone v. Werner
Enterprises, Inc., 121 F. Supp. 3d 860, 872 (D. Neb. 2015),
federal courts held that a state minimum wage provision
mirroring HRS § 387-2 requires per-hour compliance. So have
courts in California, Nevada, and Georgia. See Armenta v.
Osmose, Inc., 37 Cal. Rptr. 3d 460, 467-68 (Cal. App. 2005);
Porteous v. Capital One Servs. II, LLC, 809 Fed. Appx. 354, 357
(9th Cir. 2020); Anderson v. S. Home Care Servs., Inc., No.
1:13-CV-0840-LMM, 2016 WL 11521626, at *3-4 (N.D. Ga. Sep. 21,
2016).
Defendants cite cases from Oregon, Pennsylvania, and
Florida that applied the workweek unit under state law. Those
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cases work against them. Each relied on statutory language,
agency regulations, or statutory frameworks that expressly
adopted the federal approach. See Wilken v. Cascadia Behavioral
Health Care, Inc., No. CV 06-195-ST, 2007 WL 2916482, at *9 (D.
Or. Oct. 5, 2007) (relying on Oregon regulations measuring
compliance based on total wages over a pay period); Masterson,
2008 WL 5189342, at *3 (noting multiple provisions of
Pennsylvania’s statute referring to a workweek standard); Roop
v. Wrecker & Storage of Brevard Inc., No. 6:12-cv-1387-Orl-
31TBS, 2013 WL 5929032, at *4 (M.D. Fla. Nov. 1, 2013)
(reasoning that Florida’s statute uses “all hours worked,” not
“each hour”).
HRS § 387-2 contains no comparable language supporting
workweek averaging. Defendants’ out-of-state authority only
highlights what our statute omits.
The pattern is clear. When a state minimum wage law says
“per hour” and nothing more, courts enforce it as written.
Hawaiʻi’s law is no different.
One last argument. Defendants invoke agency guidance.
They argue that Hawaiʻi’s Department of Labor and Industrial
Relations (DLIR) wage and hour manual supports workweek
averaging. Agency deference applies only when statutory
language is ambiguous. Rosehill Trustee of Linda K. Rosehill
Revocable Tr. dated August 29, 1989 v. State, 155 Hawaiʻi 41, 57,
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556 P.3d 387, 403 (2024). The language here is not. The manual
gets no deference.
We decline to take judicial notice of DLIR’s manual excerpt
submitted by Defendants. We also decline to take judicial
notice of the supplemental materials submitted by Plaintiffs.
The text is clear. The manual is unnecessary to resolve this
question.
IV.
The unambiguous text of Hawaiʻi’s minimum wage law requires
that compliance and damages be assessed per hour.
HRS § 387-2 guarantees employees a minimum wage “per hour.”
That means for each hour. The Legislature chose these words.
It said nothing about the workweek. It crafted a law that
protects workers for each hour of work.
Hawaiʻi’s minimum wage is not an average. It is not a
number that reveals itself at the end of the week after the math
works out. It is a promise, made to every worker, for every
hour worked.
The worker who sweeps the spa. The worker who minds the
store. The worker who launders the linens. Their labor makes
the hotel run. Their work has value. So does their dignity.
What they earn cannot vanish in the weekly average.
Hawaiʻi does not ask people to wait until Friday to learn
whether all their hours will be compensated. It pays them for
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the hours they work. That is what the Legislature demanded.
That is the promise and intent we uphold.
We answer the certified question. The per-hour unit of
measure applies when measuring compliance and damages under HRS
§§ 387-2 and 387-12. Workweek averaging has no place in
Hawaiʻi’s minimum wage law.
Per hour means per hour.
Brittany E. Harmssen and /s/ Vladimir P. Devens Martin K. LaPointe (Sandra D. Lynch on the briefs) /s/ Sabrina S. McKenna for appellants /s/ Todd W. Eddins Nathaniel P. Garrett and Judy M. Iriye /s/ Lisa M. Ginoza (Wayne S. Yoshigai, Michael J. Gray, Amanda K. Rice, Liat L. /s/ Henry T. Nakamoto Yamini on the briefs) for appellees