§388-10 Penalties. (a) Civil. Any
employer who fails to pay wages in accordance with this chapter without
equitable justification or violates this chapter or the administrative rules
adopted under this chapter shall be liable:
(1) To the employee, in addition to the wages legally
proven to be due, for a sum equal to the amount of unpaid wages and interest at
a rate of six per cent per year from the date that the wages were due; and
(2) For a penalty of not less than $500 or $100 for
each violation, whichever is greater. The penalty shall be deposited into the
labor law enforcement special fund.
(b) Criminal.
(1) Any employer who does not pay the wages of any of
the employer's employees in accordance with this chapter, or any officer of any
corporation who knowingly permits the corporation to violate this chapter by
failing to pay wages of any of its employees in accordance with this chapter
shall be guilty of a class C felony and, notwithstanding section 706-640, be
subject to a fine of not less than $500 per offense. Each violation shall be
deemed a separate offense.
(2) Any employer or the employer's agent or any
officer or agent of a corporation who discharges or in any other manner
discriminates against any employee because the employee has made a complaint to
the employee's employer, or to the director, or to any other person that the
employee has not been paid wages in accordance with this chapter, or has
instituted or caused to be instituted any proceeding under or related to this
chapter, or has testified or is about to testify in any such proceedings, or
any employer who wilfully fails to comply with any other requirements of this
chapter shall be fined not less than $100 nor more than $10,000 or imprisoned
for not more than one year, or punished by both fine and imprisonment for each
such offense. [L 1963, c 158, pt of §3; am L 1965, c 77, §1(b); Supp, §95-9;
HRS §388-10; am L 1977, c 89, §1; gen ch 1985; am L 1994, c 84, §1; am L 1999,
c 22, §1; am L 2017, c 135, §3; am L 2018, c 187, §2; am L 2022, c 300, §3]
Case Notes
The legislative history of §481B-14, as interpreted by the
Hawaii supreme court in Davis, allows plaintiff hotel employees to recover for
unpaid service charges imposed without the requisite disclosure set forth in
§481B-14, through a claim brought pursuant to §§388-6 and 388-11 and this
section. 835 F. Supp. 2d 914 (2011).
When a hotel or restaurant applying a service charge
for the sale of food or beverage services allegedly violates §481B-14 by: (1)
not distributing the full service charge directly to its employees as "tip
income" (in other words, as "wages and tips of employees"); and
(2) failing to disclose this practice to the purchaser of the services, the
employees may bring an action under §§388-6 and 388-8 and this section to
enforce the employees' rights and seek remedies. 130 H. 130, 306 P.3d 175
(2013).
Where employers imposed a service charge at banquets and
other functions held at employers' hotels, and retained a portion of the
service charge income without disclosing that practice to customers, service
employees were entitled to an award of double damages under this section. 133
H. 1, 323 P.3d 792 (2014).
Where employers imposed a service charge at banquets and
other functions held at employers' hotels, and retained a portion of the
service charge income without disclosing that practice to customers, the
circuit court correctly held that "tip income" retained by employers
in violation of §481B-14 constitutes "compensation" earned by service
employees for purposes of bringing a claim under this section and §§388-6 and
388-11. 133 H. 1, 323 P.3d 792 (2014).
Employer has burden of proving "equitable
justification" for failure to pay wages; civil penalty justified. 5 H.
App. 106, 679 P.2d 627 (1984).
Notes of Decisions
Gurrobat v. HTH Corp.., 323 P.3d 792 (Haw. 2014).
· cites it 27× “Gurrobat then filed a Second Amended Complaint on August 31, 2010, also asserting that based on Defendants’ violation of Hawaii’s wage and hour laws under HRS § 388-6 by virtue of their violations of HRS § 481B-14, he was entitled to double damages under HRS § 388-10. Defendants…”
Arimizu v. Fin. SEC. Ins. Co., Inc., 679 P.2d 627 (Haw. App. 1984).
· cites it 24× “He prayed for that amount plus an additional sum up to $4,977 as a civil penalty under HRS § 388-10. On April 5, 1982, FSIC filed its answer denying liability and counterclaimed for $14,789.”
Villon v. Marriott Hotel Servs., Inc., 306 P.3d 175 (Haw. 2013).
· cites it 12× “Under HRS § 388-10, a violation of HRS § 388-6 subjects the employer to a civil penalty of twice the unpaid wages, plus interest: Any employer who fails to pay wages in accordance with this chapter without equitable justification shall be liable to the employee, in addition to…”
Hawaii Ventures, LLC v. Otaka, Inc., 164 P.3d 696 (Haw. 2007).
· cites it 2× “(Citing to HRS § 388-10 (Supp.2006) (regarding penalties for failure to pay wages in accordance with this chapter).”
Smith v. Chaney Brooks Realty, Inc., 865 P.2d 170 (Haw. App. 1994).
· cites it 6× “Association contends that HRS §§ 388-10 and -11 provide exclusive remedies that preclude Jerald’s action here.”
Davis v. Four Seasons Hotel Ltd., 810 F. Supp. 2d 1145 (D. Haw. 2011).
· cites it 2× “An employer who “fails to pay wages in accordance with this chapter without equitable justification” is liable to the affected employee for a sum equal to the amount of unpaid wages, in addition to the wages due.”
Kyne v. Ritz-Carlton Hotel Co., 835 F. Supp. 2d 914 (D. Haw. 2011).
· cites it 2× “§ 388-10. Section 388-11 provides an employee or class of employees with a cause of action to recover unpaid wages.”
Balboa v. Hawaii Care & Cleaning, Inc., 105 F. Supp. 3d 1165 (D. Haw. 2015).
“Pursuant to § 388-10(a), an employer who fails to pay wages in violation of any provision of Chapter 388 without equitable justification is liable to the employee for double damages.”
S&G Labs Hawaii, LLC v. Graves (D. Haw. 2023).
· cites it 8× “]” See Haw. Rev. Stat. § 388-10 (a)(1). Therefore, as to Counterclaim Count VI, Graves is entitled to judgment in the amount of: -$354,333.”
Admor HVAC Prods., Inc. v. Lessary (D. Haw. 2019).
· cites it 5× “Lessary in excess of $16,000,” and that “[p]ursuant to Haw. Rev. Stat. § 388-10 , Admor is liable to Mr.”
Bolos v. Grand Wailea A Waldorf Astoria Resort (D. Haw. 2025).
· cites it 4× “Count II—Unpaid Wages in Violation of HRS §§ 388-10(a), 388-11(a) Lastly, Defendants challenge Count II of the 4AC, which alleges more generic claims for unpaid wages—that is, distinct from overtime and minimum 5 Plaintiffs’ Opposition argues—consistent with the lengthy…”
— Haw. Rev. Stat. § 388-10(a) — 8 cases
Arimizu v. Fin. SEC. Ins. Co., Inc., 679 P.2d 627 (Haw. App. 1984).
“He prayed for that amount plus an additional sum up to $4,977 as a civil penalty under HRS § 388-10. On April 5, 1982, FSIC filed its answer denying liability and counterclaimed for $14,789.”
Smith v. Chaney Brooks Realty, Inc., 865 P.2d 170 (Haw. App. 1994).
“Association contends that HRS §§ 388-10 and -11 provide exclusive remedies that preclude Jerald’s action here.”
Balboa v. Hawaii Care & Cleaning, Inc., 105 F. Supp. 3d 1165 (D. Haw. 2015).
“Pursuant to § 388-10(a), an employer who fails to pay wages in violation of any provision of Chapter 388 without equitable justification is liable to the employee for double damages.”
Bolos v. Grand Wailea A Waldorf Astoria Resort (D. Haw. 2025).
“Count II—Unpaid Wages in Violation of HRS §§ 388-10(a), 388-11(a) Lastly, Defendants challenge Count II of the 4AC, which alleges more generic claims for unpaid wages—that is, distinct from overtime and minimum 5 Plaintiffs’ Opposition argues—consistent with the lengthy…”
— Haw. Rev. Stat. § 388-10(a)(1) — 2 cases
S&G Labs Hawaii, LLC v. Graves (D. Haw. 2023).
“]” See Haw. Rev. Stat. § 388-10 (a)(1). Therefore, as to Counterclaim Count VI, Graves is entitled to judgment in the amount of: -$354,333.”
— Haw. Rev. Stat. § 388-10(b) — 1 case
Smith v. Chaney Brooks Realty, Inc., 865 P.2d 170 (Haw. App. 1994).
“Association contends that HRS §§ 388-10 and -11 provide exclusive remedies that preclude Jerald’s action here.”
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