Title 12, Chapter 22 (Wages and Hours of Employees on Public Works)

22-1
HAWAII ADMINISTRATIVE RULES
TITLE 12
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
CHAPTER 22
WAGE DETERMINATIONS AND THE ADMINISTRATION
AND ENFORCEMENT OF CHAPTER 104,
HAWAII REVISED STATUTES
Subchapter 1 	Administration and Enforcement
§12-22-1 	Definitions
§12-22-1.1 	Transporting of materials, supplies, or
equipment
§12-22-2 	Method to determine prevailing wage
rates
§12-22-3 	Procedure for wage rate schedules
§12-22-4 	Method to determine fringe benefit
hourly rates
§12-22-4.1 	Method to determine overtime
compensation rate
§12-22-5 	Meeting prevailing wage requirements
§12-22-6 	Apprentice rates
§12-22-7 	Contract provisions
§12-22-8 	Classification of laborers and
mechanics
§12-22-8.1 	Investigation of complaints
§12-22-9 	Appeal of classification determination
§12-22-10 	Certified payroll and record keeping
requirements
§12-22-11 	Rulings and interpretations
§12-22-12 	Disbursement of accrued amounts
withheld on contract

22-2
§12-22-13 	Computation of time
Subchapter 2 	Penalty for Violations
§12-22-25 	Notification of violation
§12-22-26 	Delay or falsification penalty
§12-22-27 	Violation penalties
Subchapter 3 	Hearing of Appeal
§12-22-40 	Definitions
§12-22-41 	Prehearing conference
§12-22-42 	Prehearing order
§12-22-43 	Hearing
§12-22-44 	Powers and duties of hearings officer
§12-22-45 	Rules of evidence
§12-22-46 	Official notice of facts
§12-22-47 	Decision
§12-22-48 	Judicial review
Subchapter 4 	Construction on Property Leased by
the State or County
§12-22-60 	Definitions
§12-22-61 	Construction for state and county
leases policy
§12-22-62 	Submission of leases to department
§12-22-63 	Lease required to state square footage
§12-22-64 	Challenges to square footage
§12-22-65 	Lessors required to notify contractors
Subchapter 5 	Construction Projects Financed
with Special Purpose Revenue Bonds

§12-22-1
22-3
§12-22-75 	Definitions
§12-22-76 	Contract provisions, special purpose
revenue bonds
§12-22-77 	Project party collective bargaining
agreement
Historical Note: 	Chapter 22 of title 12 is based
substantially upon Rule XVIII, Relating to Wage
Determinations Under Chapter 104, Hawaii Revised
Statutes, and the Administration and Enforcement of
said Chapter of the Department of Labor and Industrial
Relations. 	[Eff 8/15/55; am 4/16/56; am 9/1/59;
R 7/27/81]
SUBCHAPTER 1
ADMINISTRATION AND ENFORCEMENT
§12-22-1 	Definitions. 	As used in this chapter:
"Apprentice" shall have the same meaning as in
section 372-2, HRS.
"Basic hourly rate" shall have the same meaning
as in section 104-1, HRS.
"Construction of public work" includes without
limitation new construction, reconstruction,
development, improvement, alteration, repair,
renovation, painting, decorating, dredging, shoring,
simultaneous sewer inspection and repair, and any
other activity performed by a laborer or mechanic
employed at the site of a public work or at any
property used by the contractor, dedicated for the
performance of the contract, such as batch plants,
borrow pits, fabrication plants, mobile factories, job
headquarters, and tool yards. 	As used in this
definition, "other activity performed by a laborer or
mechanic employed at the site" includes the following
if the activity is an integral part of or is in
conjunction with a construction contract, or if there

§12-22-1
22-4
is substantial construction activity involved in a
supply, service, or other type of non-construction
contract:
(1) 	Manufacturing or furnishing of materials,
articles, supplies, or equipment on the job
site;
(2) 	Warranty work;
(3) 	Demolition or excavation;
(4) 	Landscaping;
(5) 	Termite treatment; and
(6) 	Installation at the construction site of
items or articles fabricated off-site, such
as shelving, drapery, and communications
equipment.
"Contract" means any type of agreement over
$2,000 for construction of a public work, regardless
of what the agreement may be called, including
purchase orders and vouchers.
"Contractor" shall have the same meaning as in
section 104-1, HRS, including but not limited to the
general contractor or any subcontractor, any
individual, partnership, firm, corporation, joint
venture, or other legal entity, acting directly or
through an agent, employee, consultant, corporate
officer or corporate director, undertaking the
execution of a construction contract over $2,000 with
a governmental contracting agency.
"Cost of fringe benefit" means the rate of
contribution irrevocably made by a contractor to a
trustee or to a third person pursuant to a fund, plan,
or program in providing benefits to a laborer or
mechanic for:
(1) 	Health and welfare such as medical or
hospital care, or insurance to provide for
any of the foregoing;
(2) 	Unemployment, life insurance, sickness or
disability insurance, or accident insurance;
(3) 	Vacation and holiday pay;
(4) 	Pensions on retirement or death;
(5) 	Defraying costs of apprenticeship or other
similar programs; or

§12-22-1
22-5
(6) 	Other bona fide fringe benefits as
determined by the director;
except for chapter 393, HRS, where a contractor
is required by either federal or state law to provide
these benefits the rate of contribution or other costs
for these benefits shall not be included.
"Department" means the department of labor and
industrial relations.
"Director" shall have the same meaning as in
section 104-1, HRS.
"Employed" includes every person paid in any
manner for working in the construction of a work under
a contract with a governmental contracting agency,
regardless of any contractual relationship alleged to
exist.
"Falsification of records" means the submission
or filing of inaccurate, misleading, or incorrect
payment information on certified payrolls, fringe
benefit reporting forms, or other documentation
required by this chapter for construction work
performed on a public works construction project when
the form submitted has been attested to or certified
to be true and correct by the contractor or the
contractor’s designated representative.
"Governmental contracting agency" shall have the
same meaning as in sections 104-1 and 104-2, HRS.
"Hawaii Revised Statutes" or "HRS" means laws
enacted by the Hawaii state legislature.
"Prevailing area practice" means the labor
classifications of the work performed by the laborers
or mechanics of the group used by the contractors
whose wage rates were determined to be prevailing in
the locality and are incorporated into and represented
in the applicable wage rate schedule issued by the
department.
"Public work" shall have the same meaning as in
section 104-1, HRS, and includes without limitation:
(1) 	Any building, structure, road, or real
property, the construction of which is
undertaken:
(A) 	By authority of; and

§12-22-1
22-6
(B) 	Through the use of funds, grants,
loans, bonds, land, or other resources
of the State or any county, board,
bureau, authority, commission, or other
agency or instrumentality thereof, to
serve the interest of the public,
regardless of whether title thereof is
held by a state or county agency.
However, subsequent construction to
fixtures or appurtenances attached to
the assigned space of an individual
occupant, lessee, or tenant of the
building or structure, contracted by
other than a state or county agency or
instrumentality thereof, shall not be
subject to chapter 104, HRS; or
(2) 	A construction contract between private
persons in accordance with section 104-2.5,
HRS.
"USDOL" means the United States Department of
Labor.
"Wages", "minimum wages", "prevailing wages",
"rate of wages", and "wage rates" shall have the same
meaning as in section 104-1, HRS. 	[Eff 7/27/81; am
and comp 4/1/96; am and comp 7/23/18 	] 	(Auth:
HRS §104-29) 	(Imp: 	HRS §104-29)
§12-22-1.1 	Transporting of materials, supplies,
or equipment. 	(a) 	Chapter 104, HRS, and this chapter
are applicable, but not limited to, a laborer or
mechanic who is employed and performs work at a public
work site and transports materials, supplies, or
equipment:
(1) 	To or from a public work site; or
(2) 	Between a public work site and either
another public work site or a dedicated
site.
(b) 	The following illustrate situations in which
chapter 104, HRS, and this chapter are not applicable:

§12-22-3
22-7
(1) 	Delivery of materials, supplies, or
equipment to a public work site if the
delivery persons only drop off the items and
perform no construction work at the public
work site;
(2) 	Hauling of excavated material away from a
public work site for disposal or recycling,
where the drivers are on the site only to
have their trucks filled;
(3) 	Continuous hauling of material to and from a
public work site, and the drivers perform no
construction work at the public work site;
or
(4) 	Delivery or removal of equipment to or from
a public work site, and the delivery persons
operate no equipment or perform no other
work as a laborer or mechanic on the public
work site. 	[Eff and comp 4/1/96; am and
comp 7/23/18 	] 	(Auth: 	HRS §104-29)
(Imp: 	HRS §104-29)
§12-22-2 	Method to determine prevailing wage
rates. 	(a) 	The rates of wages which the director
shall regard as prevailing in each corresponding
classification of laborers and mechanics shall be as
defined in section 104-2(b)(1)(A) and (B), HRS.
(b) 	If there is no modal rate, then the average
of the rates that occur with the highest frequency.
[Eff 7/27/81; am and comp 4/1/96; am and comp 7/23/18
] 	(Auth: 	HRS §104-29) 	(Imp: 	HRS
§104-2)
§12-22-3 	Procedure for wage rate schedules. 	(a)
All schedules of wage rates for laborers and mechanics
and any changes thereto shall be based on:
(1) 	Surveys or methods which the director may
deem necessary to obtain data for wage
determinations;

§12-22-3
22-8
(2) 	Wage determinations made by the Secretary of
Labor, USDOL, under the Davis-Bacon Act
(40 U.S.C. §§276a-276a-7); or
(3) 	Both paragraphs (1) and (2).
(b) 	Wage rate schedules shall be regularly
issued on or about February 15 and September 15 of
each year. 	Additional wage rate schedules, addenda,
and notices of changes will be issued as the director
deems necessary.
(c) 	Requests for determination by the director
of wage rates for classes of laborers and mechanics
not listed on the current schedule of wage rates or
for any change, modification, or review of wage rates
shall be submitted by the governmental contracting
agency or any interested party at least thirty
calendar days before advertisement of the
specifications for which the determination is sought.
Exceptions from this provision shall be made only upon
a proper showing in unusual circumstances.
(d) 	Any increase in wage rates, as determined by
the director and issued in the wage rate schedule,
shall be applicable during the performance of the
contract, in accordance with section 104-2(a) and (b),
HRS.
(e) 	No wage rate determined by the director
shall be less than the rate established by the
Secretary of Labor (USDOL) for the corresponding
class.
(f) 	Any changes to the wage rates shall be
recognized by the director only upon complete and
timely submission of the information, in accordance
with this chapter. 	Notwithstanding the effective or
adoption date of a collective bargaining agreement or
rates contained therein, the effective date of these
changes shall be the date of publication in the wage
rate schedule and shall not be retroactive. 	[Eff
7/27/81; am and comp 4/1/96; am and comp
7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp: 	HRS
§§104-2, 104-31, 104-34)

§12-22-5
22-9
§12-22-4 	Method to determine fringe benefit
hourly rates. 	In determining the hourly equivalent of
a monthly rate of contribution for a fringe benefit,
the monthly rate of contribution shall be divided by
one hundred seventy-three hours and the quotient shall
be the hourly rate. 	[Eff 7/27/81; comp 4/1/96; am and
comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §104-2)
§12-22-4.1 	Method to determine overtime
compensation rate. 	(a) 	In determining the hourly
overtime compensation due a laborer or mechanic, the
rate shall be computed by multiplying the basic hourly
rate times the overtime multiplier according to the
wage rate schedule classification and then adding the
hourly fringe benefit rate.
(b) 	No credit for fringe benefits made by
monthly contributions as calculated in section 12-22-
4, is allowed in determining the overtime rate. 	[Eff
and comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §104-2)
§12-22-5 	Meeting prevailing wage requirements.
A contractor shall pay the prevailing wages contained
in a wage rate schedule applicable to laborers or
mechanics in any of the following ways:
(1) 	By paying not less than the basic hourly
rate to the laborers or mechanics and by
making the contributions for the fringe
benefits as specified in the wage rate
schedule;
(2) 	By paying not less than the basic hourly
rate to the laborers or mechanics and by
making contributions for fringe benefits in
a total amount not less than the total of
the fringe benefits required by the wage
rate schedule;

§12-22-5
22-10
(3) 	By paying the basic hourly rate in cash
directly to the laborers or mechanics and by
making an additional cash payment in lieu of
the fringe benefits required by the wage
rate schedule; or
(4) 	By paying an hourly rate, partly in cash and
partly in fringe benefits, which total not
less than the prevailing wages. 	[Eff
7/27/81; am and comp 4/1/96; comp
7/23/18 	] 	(Auth: 	HRS §104-29)
(Imp: 	HRS §104-2)
§12-22-6 	Apprentice rates. 	Any apprentice wage
rates established by the director shall apply only to:
(1) 	Contractors who are a party to a bona fide
apprenticeship program which has been
registered with the department;
(2) 	Apprentices who are parties to
apprenticeship agreements which have been
registered with the department or recognized
by the department as a USDOL nationally
approved apprenticeship program, and who
have been individually registered by name
with the department; and
(3) 	The number of apprentices on any public work
which, in relation to the number of
journeyworkers in the same craft
classification as the apprentices employed
by the same employer on the same public
work, is not in excess of the ratio allowed
for employment of apprentices by the
employer under the apprenticeship standards
agreed and subscribed to by the employer and
registered with or recognized by the
department. 	A registered or recognized
apprentice receiving the journeyworker rate
will not be considered a journeyworker for
the purpose of meeting the ratio
requirement. 	[Eff 7/27/81; am and comp

§12-22-8
22-11
4/1/96, am and comp 7/23/18 	] 	(Auth:
HRS §104-29) 	(Imp: 	HRS §104-2)
§12-22-7 	Contract provisions. 	The governmental
contracting agency shall cause or require to be
inserted in all specifications, solicitations, and
contracts made and entered into by the agency for
construction of any public work, a requirement that
prevailing wages be paid as determined by the director
and any other stipulation or provision required by
chapter 104, HRS. 	[Eff 7/27/81; am and comp 4/1/96,
am and comp 7/23/18 	] 	(Auth: 	HRS §104-29)
(Imp: 	HRS §104-2)
§12-22-8 	Classification of laborers and
mechanics. 	(a) 	The governmental contracting agency
shall require that any class of laborers or mechanics
which will be employed on a public work and for which
the director has not made a wage determination shall
be classified by the contractor in a manner which
conforms to the classifications contained in the wage
rate schedule issued by the director.
(b) 	If there is a disagreement on the proper
classification or reclassification of a particular
class of laborers or mechanics to be used, the
governmental contracting agency shall submit a written
report of the issues in disagreement and refer the
matter to the director for determination.
(c) 	If the governmental contracting agency fails
to refer the disagreement to the director as provided
by subsection (b) within ten days after a request in
writing is made to the governmental contracting agency
by any interested party, the interested party may
refer the question in writing to the director. 	[Eff
7/27/81; am and comp 4/1/96, comp 7/23/18 	]
(Auth: 	HRS §104-29) 	(Imp: 	HRS §104-2)

§12-22-8.1
22-12
§12-22-8.1 	Investigation of complaints. 	Any
complaint received by a governmental contracting
agency with respect to matters under chapter 104, HRS,
shall be referred to the director for investigation
and report. 	[Eff and comp 4/1/96, am and comp
7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp: 	HRS
§104-21)
§12-22-9 	Appeal of classification determination.
(a) 	Any person aggrieved by the director’s
determination made pursuant to section 12-22-8 may,
within ten days after mailing of the determination,
appeal in writing to the hearings officer appointed by
the director in conformance with chapter 91, HRS.
(b) 	Any party to the appeal may obtain judicial
review of the appeals decision in the manner provided
in chapter 91, HRS. 	[Eff 7/27/81; comp 4/1/96; am and
comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §104-2)
§12-22-10 	Certified payroll and record keeping
requirements. 	(a) 	Each contractor shall maintain
accurate and complete payroll records and related
employment records during the course of the work and
preserve the records for a period of three years from
the close of the project for all laborers and
mechanics working on the public works construction
project in English containing the following
information and data on each laborer and mechanic
engaged in the performance of the contract at the job
site:
(1) 	Name in full;
(2) 	Home address;
(3) 	Last four digits of social security number;
(4) 	Copy of the apprentice's registration with
the department;
(5) 	Job classification for each classification
of work performed;

§12-22-10
22-13
(6) 	Rate of pay;
(7) 	Hours worked each workday and total hours
worked each workweek;
(8) 	Total weekly straight-time earnings;
(9) 	Total weekly overtime earnings;
(10) Total weekly gross earnings;
(11) The amount and purpose of each deduction;
(12) Total net wages paid and the date paid; and
(13) Other information as the director may
require.
(b) 	Whenever a contractor provides fringe
benefits to covered workers, the contractor shall
further maintain records showing the irrevocable
commitment to provide the benefits is enforceable,
that the plan or program is financially responsible,
and that the plan or program has been communicated in
writing to the laborers or mechanics affected, and
records which show the costs anticipated or the actual
cost incurred in providing the benefits.
(c) 	Contractors employing apprentices under an
approved program shall maintain a written record of
the registration of the apprenticeship program, the
registration of the apprentices, and the ratios and
wage rates prescribed for the applicable program.
(d) 	A contractor shall submit weekly for each
week in which any construction work is performed a
copy of all certified payrolls to the contracting
agency. 	The certified payrolls submitted shall set
out accurately and completely all of the information
required to be maintained under this chapter. 	The
general contractor is responsible for the submission
of the certified payroll records for all
subcontractors.
(e) 	Each certified payroll submitted shall be
accompanied by a "Statement of Compliance", signed by
the contractor or the contractor's designated
representative and shall certify or attest that:
(1) 	The information for the payroll period
reported is correct and complete;
(2) 	Each laborer or mechanic, or apprentice
employed on the contract during the payroll
period has been paid the full weekly wages

§12-22-10
22-14
earned, without rebate, either directly or
indirectly, and that no deductions have been
made either directly or indirectly from the
full wages earned, other than permissible
deductions as set forth by law; and
(3) 	Each laborer or mechanic has been paid not
less than the applicable prevailing wage and
fringe benefits or cash equivalent for the
classification of work performed, as
specified in the wage rate schedule
applicable to the public work construction
project at the time the work was performed.
(f) 	Certified payrolls submitted shall be
numbered consecutively from the first week in which
work is performed. 	Subsequent weeks shall be numbered
in chronological order with the final week in which
work is performed to be labeled "final".
(g) 	Amended certified payroll records submitted
shall be labeled amended with a detailed explanation
of the reason for the amendment.
(h) 	The falsification of any of the required
documents may subject a contractor to civil penalties
including suspension or criminal prosecution, or both.
(i) 	The contractor shall provide an electronic
copy of the records or make the records available for
inspection and photocopying, or transcription by the
director and the director's authorized
representatives. 	The contractor shall permit the
director or the director's representatives to
privately interview employees during working hours on
the job. 	If a contractor fails to submit required
records or to make the records available, or fails to
allow private interviews with employees, the director
may take such action as may be necessary to cause the
suspension of any further payment. 	Failure to comply
may also be grounds for immediate suspension pursuant
to chapter 104, HRS. 	[Eff 7/27/81; comp 4/1/96; am
and comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §§104-3, 104-22, 104-25)

§12-22-13
22-15
§12-22-11 	Rulings and interpretations. 	All
questions arising in any governmental contracting
agency relating to the applicability and
interpretation of chapter 104, HRS, and of this
chapter shall be referred to the director for ruling
and interpretation. 	The director, in making the
ruling or interpretation, shall take into
consideration the prevailing practice of the
construction industry in the locality. 	[Eff 7/27/81;
comp 4/1/96; am and comp 7/23/18 	] 	(Auth:
HRS §104-29) 	(Imp: 	HRS §104-21)
§12-22-12 	Disbursement of accrued amounts
withheld on contract. 	(a) 	Within sixty days from the
date of written request by the director, the
contracting agency shall pay or transfer specified
amounts from accrued payment withheld on a contract to
the director for:
(1) 	Wages, overtime compensation, or both due to
laborers and mechanics;
(2) 	Penalties assessed for a first, second, or
third violation; or
(3) 	Both paragraphs (1) and (2).
(b) 	Amounts collected or transferred for back
wages shall be deposited or credited to the wage claim
fund of the department. 	Amounts collected for
penalties shall be deposited or credited to the
general fund.
(c) 	The department shall disburse from the wage
claim fund any wages or overtime compensation due to
laborers or mechanics. 	[Eff and comp 4/1/96; am and
comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §§104-2, 104-21)
§12-22-13 	Computation of time. 	The time in
which any act provided by these rules is to be done is
computed by excluding the first day and including the
last, unless the last day is a Saturday, Sunday, or

§12-22-13
22-16
holiday and then it is also excluded. 	As used in this
section, "holiday" includes any day designated as such
pursuant to section 8-1, HRS. 	[Eff and comp 4/1/96;
am and comp 7/23/18 	] 	(Auth: 	HRS §104-29)
(Imp: 	HRS §104-29)
SUBCHAPTER 2
PENALTY FOR VIOLATIONS
§12-22-25 	Notification of violation. 	(a) 	Where
the department, either as a result of its own
investigation or as a result of a report by a
contracting agency, finds that a violation of chapter
104, HRS, has been committed, the department shall
issue a notification of violation to the contractor.
Each notice of violation shall involve only one
project. 	Each offense shall be as described in
section 104-24(e), HRS.
(b) 	A first violation refers to the first
investigation in which the department finds that a
contractor has failed to comply with chapter 104, HRS,
or a violation which occurs more than two years after
the date of notification of first violation. 	A second
violation refers to a violation which occurs within
two years of the date of the first notification of
violation. 	A third violation refers to a violation
which occurs within three years of the date of the
second notification of violation. 	Additional
violations occurring after the third violation shall
be treated in the same way as the third violation.
(c) 	A notification of violation shall be final
and conclusive twenty days after the date of mailing
to the contractor, unless a written notice of appeal
is filed with the director, as provided in section
104-23, HRS. 	[Eff and comp 4/1/96; am and comp
7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp: 	HRS
§§104-23, 104-24)

§12-22-27
22-17
§12-22-26 	Delay or falsification penalty. 	(a)
A penalty of $10,000 per project shall be assessed
against a contractor for interference or delay
including failure to provide requested records under
section 104-3, HRS, or failure to allow employees to
be interviewed during working hours on the job.
(b) 	An additional penalty of $1,000 for each day
thereafter that the contractor fails to comply shall
be assessed against the contractor.
(c) 	A penalty of $10,000 per project shall be
assessed against a contractor for falsification of
records.
(d) 	The contractor shall be immediately
suspended for a period of three years.
(e) 	Concurrent with or after the issuance of a
notification of violation, and within a reasonable
period after completion of the investigation, the
department shall notify the contractor of violations
of the chapter committed and the penalty assessed,
which shall then be due and payable within twenty days
from the date of the mailing of the notification of
violation. [Eff and comp 4/1/96; am and comp 7/23/18
] 	(Auth: 	HRS §104-29) 	(Imp: 	HRS
§§104-22, 104-24, 104-25)
12-22-27 	Violation penalties. 	(a) 	Where the
department finds that a first, second, or third
violation has been committed, penalties shall be as
described in sections 104-22, 104-24, and 104-25, HRS.
(b) 	Additional violations committed after the
third violation shall be penalized in the same way as
the third violation.
(c) 	Concurrent with or after the issuance of a
notification of violation, and within a reasonable
period after completion of the investigation, the
department shall notify the contractor of violations
of the chapter committed and the penalty assessed,
which shall then be due and payable within twenty days
from the date of the mailing of the notification of

§12-22-27
22-18
violation. 	[Eff and comp 7/23/18 	] 	(Auth:
HRS §104-29) 	(Imp: 	HRS §§104-24, 104-25)
SUBCHAPTER 3
HEARING OF APPEAL
§12-22-40 	Definitions. 	As used in this
subchapter:
"Hearing" shall have the same meaning as the term
agency hearing as defined in section 91-1, HRS.
"Party" or "parties" shall have the same meaning
as in section 91-1, HRS and shall include any other
person such as the contractor or contractor's
representative, the department, or both. 	[Eff and
comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §§91-1, 104-23)
§12-22-41 	Prehearing conference. 	(a) 	Upon
docketing an appeal, but prior to a hearing, the
hearings officer may hold a prehearing conference with
the parties.
(b) 	Any matter not raised at the prehearing
conference shall not be allowed during the hearing.
Matters to be discussed at the prehearing conference
may include but are not limited to the following:
(1) 	A discussion of the issues raised by the
appellant and the explanations and defenses
to be presented by the parties at the
hearing;
(2) 	The necessity or desirability of amendments
to the pleadings;
(3) 	The possibility of obtaining stipulations
which will avoid unnecessary proof;
(4) 	The possibility of a settlement between the
parties; and

§12-22-42
22-19
(5) 	Other matters that may aid in the
disposition of the case.
(c) 	If the parties agree to the terms of a
settlement at the prehearing conference, the
settlement shall be reduced to writing, signed by the
parties, and approved by the hearings officer. 	If
approved, the case will be dismissed without a finding
on the merits of the complaint and a copy of the final
prehearing settlement shall be sent by mail to the
department and the appellant.
(d) 	A prehearing settlement shall not affect the
processing of any other case, including but not
limited to complaints in which the allegations are
like or related to the individual allegations settled.
(e) 	Prehearing conference statements shall be
filed by the parties no later than three business days
before the scheduled prehearing conference covering
those areas identified in the notice of prehearing
conference. 	Additional conferences may be scheduled
at the hearings officers’ discretion. 	[Eff and comp
7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp: 	§104-
23)
§12-22-42 	Prehearing order. 	(a) 	When a
prehearing conference is held, the hearings officer
may enter a prehearing order which recites the action
taken at the prehearing conference, including;
(1) 	The agreements made by the parties as to any
of the matters considered;
(2) 	The issues for hearing not otherwise
disposed of by stipulation or agreement of
the parties; and
(3) 	The exchange of exhibits, witness list, and
prehearing memorandum deadlines.
(b) 	The prehearing order shall control the
subsequent course of the appeal, unless modified by
the hearings officer at the hearing or prior thereto
to prevent manifest injustice. 	The prehearing order
shall supersede the pleading where there is any
conflict and shall supplement the pleading in all

§12-22-42
22-20
other respects. 	[Eff and comp 7/23/18 	]
(Auth: 	HRS §104-29) 	(Imp: 	§104-23)
§12-22-43 	Hearing. 	(a) 	Any hearing under this
subchapter shall be held in accordance with chapter
91, HRS.
(b) 	The hearing on appeal shall be held within
sixty days of the notice of appeal.
(c) 	All parties shall be given written notice of
hearing at least fifteen days before the hearing.
(d) 	The parties shall be present at the hearing,
and shall be allowed to call, examine, and cross-
examine witnesses, and introduce papers, documents, or
other evidence, in person or by counsel.
(e) 	At the discretion of the hearings officer,
any other person may be allowed to participate, in
person or by counsel, for the purposes and to the
extent that the hearings officer shall determine.
(f) 	Witnesses at the hearing shall be examined
orally, under oath or affirmation, and a record of the
proceedings shall be made by the hearings officer.
The hearings officer or a person designated by the
hearings officer may administer oaths or affirmations
at the hearing.
(g) 	The hearings officer may continue a hearing
from day to day or adjourn it to a later day or to a
different place by announcement thereof at the hearing
or by appropriate notice to all parties. 	The hearings
officer may also continue a hearing upon request of
any party. 	At the discretion of the hearings officer,
a hearing may be reopened.
(h) 	If the employer or employer’s representative
is absent without notice, the hearings officer shall
base the decision on the available evidence. 	[Eff and
comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §§91-9.5, 104-23)

§12-22-45
22-21
§12-22-44 	Powers and duties of hearings officer.
(a) 	The hearings officer shall have full power and
authority to:
(1) 	Control the procedures of the hearing;
(2) 	Admit or exclude testimony or other
evidence;
(3) 	Rule upon all motions and objections;
(4) 	Call and examine witnesses;
(5) 	Direct the production of papers or other
matter present in the hearings room; and
(6) 	Take other actions that are necessary and
proper for the conduct of the hearing.
(b) 	The hearings officer may issue subpoenas
either at will or upon written request of a party to
the proceeding whenever necessary to compel the
attendance of witnesses and the introduction of books,
records, correspondence, documents, papers, or any
other evidence, which relates to any matter in
question before the hearings officer. 	Where a
subpoena is issued at the instance of a party to the
proceeding other than the hearings officer, the cost
of service and witness and mileage fees shall be borne
by the party at whose request the subpoena is issued.
Witness and mileage fees shall be the same as fees
paid witnesses in the circuit court.
(c) 	The hearings officer, whenever necessary or
required during the hearing and on terms and
conditions as the hearings officer may determine,
shall take or cause to be taken deposition of
witnesses residing within or without the State of
Hawaii in the manner prescribed by law for deposition
in civil actions. 	A request by a party other than the
hearings officer for deposition of witnesses shall be
in writing. 	The cost of any deposition shall be borne
by the party at whose request the deposition was
taken. 	[Eff and comp 7/23/18 	] 	(Auth: 	HRS
§104-29) 	(Imp: 	HRS §§91-10, 104-23)
§12-22-45 	Rules of evidence. 	(a) 	The
admissibility of evidence at hearing shall not be

§12-22-45
22-22
governed by the laws of evidence, and all relevant
oral or documentary evidence shall be admitted if it
is the kind of evidence on which responsible persons
are accustomed to rely in the conduct of serious
affairs. 	Irrelevant, immaterial, or unduly
repetitious material shall not be admitted into
evidence. 	The hearings officer shall give effect to
the rules of privilege recognized by law.
(b) 	Documentary evidence may be received in the
form of copies, provided that, upon request, all other
parties to the proceeding shall be given an
opportunity to compare the copy with the original. 	If
the original is not available, a copy may still be
admissible, but the unavailability of the original and
the reasons therefor shall be considered by the
hearings officer when considering the weight of the
documentary evidence. 	[Eff and comp 7/23/18 	]
(Auth: 	HRS §§91-2, §104-29) 	(Imp: 	HRS §§91-10, 104-
23)
§12-22-46 	Official notice of facts. 	The
hearings officer may take official notice of those
matters that may be judicially noticed by the courts
of the State. 	The hearings officer may also take
official notice of generally recognized technical or
scientific facts within the agency’s specialized
knowledge, upon notice to all parties before or during
trial. 	Any party shall have an opportunity to contest
the facts so noticed, within a reasonable time
specified by the hearings officer. 	[Eff and comp
7/23/18 	] 	(Auth: 	HRS §§91-2, §104-29) 	(Imp:
HRS §§91-10, 104-23)
§12-22-47 	Decision. 	(a) 	The hearings officer
shall render a written decision on a notification of
violation within sixty days after the conclusion of
the hearing, which shall include findings of fact and
conclusions of law.

§12-22-61
22-23
(b) 	A certified copy of the decision shall be
served by personal delivery or by mail upon each
party. 	[Eff and comp 7/23/18 	] 	(Auth: 	HRS
§104-29) 	(Imp: 	HRS §104-23)
§12-22-48 	Judicial review. 	Any party aggrieved
by the decision of the hearings officer shall be
entitled to judicial review as provided by section 91-
14, HRS. 	[Eff and comp 7/23/18 	] 	(Auth: 	HRS
§104-29) 	(Imp: 	HRS §104-26)
SUBCHAPTER 4
CONSTRUCTION ON PROPERTY LEASED BY THE STATE
OR COUNTY
§12-22-60 	Definitions. 	As used in this chapter:
"Assignable square feet" means the total area of
the project available for lease as determined by the
master lessor.
"Leasing agency" means the state or county agency
who is the lessee of a leased space.
"Project" means all the buildings, other
improvements, or both, on the property where a lease
is located including the leasing agency’s leased area.
[Eff and comp 7/23/18 	] 	(Auth: 	HRS §104-29)
(Imp: 	HRS §104-2.5)
§12-22-61 	Construction for state and county
leases policy. 	Where construction work to property to
be leased by the state or any county agency is to be
undertaken, the laborers and mechanics working on that
construction project shall be paid prevailing wages
required under section 104-2, HRS, provided that more
than fifty per cent of the assignable square feet of

§12-22-61
22-24
the project is or will be leased by the state or any
county agency. 	[Eff and comp 7/23/18 	]
(Auth: 	HRS §104-29) 	(Imp: 	HRS §104-2.5)
§12-22-62 	Submission of leases to department.
Upon execution, renewal, termination, or any change to
a lease, the leasing agency shall submit the lease to
the department and the department of accounting and
general services within thirty days of the execution,
renewal, termination or change in the lease. 	[Eff and
comp 7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp:
HRS §104-2.5)
§12-22-63 	Lease required to state square
footage. 	Every lease entered into by the state or any
county agency shall state the total assignable square
footage of the project and the amount leased by the
state or any county agency leasing space in or on the
project. 	[Eff and comp 7/23/18 	] 	(Auth: 	HRS
§104-29) 	(Imp: 	HRS §104-2.5)
§12-22-64 	Challenges to square footage. 	All
questions or challenges of the stated measurement of
the square footage of the project of the lease shall
be filed, heard, and decided by the hearings officer
appointed by the director in conformance with chapter
91, HRS. 	[Eff and comp 7/23/18 	] 	(Auth: 	HRS
§104-29) 	(Imp: 	HRS §104-2.5)
§12-22-65 	Lessors required to notify
contractors. 	A lessor contracting any construction
work to the leased property that is subject to section
104-2.5, HRS, shall provide written notice to the
contractor that prevailing wages shall be paid to a ll

§12-22-76
22-25
laborers and mechanics employed on the construction
project. 	[Eff and comp 7/23/18 	] 	(Auth: 	HRS
§104-29) 	(Imp: 	HRS §104-2.5)
SUBCHAPTER 5
CONSTRUCTION PROJECTS FINANCED WITH
SPECIAL PURPOSE REVENUE BONDS
§12-22-75 	Definitions. 	As used in this chapter:
"Project agreement" shall have the same meaning
as in chapter 39A, HRS.
"Project party" shall have the same meaning as in
chapter 39A, HRS.
"Special purpose revenue bonds" shall have the
same meaning as in chapter 39A, HRS. 	[Eff and comp
7/23/18 	] 	(Auth: 	HRS §104-29) 	(Imp: 	HRS
§104-2)
§12-22-76 	Contract provisions, special purpose
revenue bonds. 	(a) 	The director of finance shall
require in a construction project under chapter 39A,
HRS, that the project party insert in all
solicitations and contracts made and entered into by
the project party that prevailing wages in accordance
with chapter 104, HRS, be paid to the laborers and
mechanics employed.
(b) 	The following provisions shall be included
in any agreement for construction of a project funded
by special purpose revenue bonds between a project
party and the contractor:
(1) 	The project party or the contractor retained
by the project party shall maintain and be
responsible for all payroll records in
accordance with the requirements and be the
responsible entity for compliance with
chapter 104, HRS, and this chapter,

§12-22-76
22-26
including the maintenance of the certified
payroll records during the course of the
construction work and preserve these records
for a period of three years from the close
of the project for all laborers and
mechanics so employed; and
(2) 	Any other information or requirement as the
director may require under chapter 104, HRS,
or this chapter. 	[Eff and comp
7/23/18 	] 	(Auth: 	HRS §104-29)
(Imp: 	HRS §104-2)
§12-22-77 	Project party collective bargaining
agreement. 	Where the project party has entered into a
collective bargaining agreement with a bona fide labor
union governing the project party's workforce, as set
forth in section 104-2(h), HRS, the terms of that
collective bargaining agreement and associated
provisions shall be deemed the prevailing wages such
that the project party shall not be required to pay to
its laborers and mechanics covered by the collective
bargaining agreement the wages in comparable
classifications as published by the director in the
wage rate schedules, unless otherwise required under
the director's enforcement powers contained in section
104-2(g), HRS. 	[Eff and comp 7/23/18 	]
(Auth: 	HRS §104-29) 	(Imp: 	HRS §104-2)