Substitutes’ back pay coming soon

About 10,000 Hawaii substitute teachers moved closer Friday to receiving their share of a $14 million settlement for back pay — part of a class-action lawsuit filed against the state more than a decade ago.

Circuit Judge Karl Saka­moto approved the settlement agreement Friday, and the state says payments could go out as early as March.

"I feel very good about the decision," said former Maui substitute teacher David Garner, who sued in 2002, arguing that the state failed to calculate substitute teachers’ wages correctly and didn’t come through on pay raises.

"This has gone on way too long," he said.

The settlement covers claims for daily wages. Meanwhile, another claim is seeking "tens of millions of dollars" in hourly back pay as well as interest payments on both daily and hourly amounts due, said Seattle attorney Murray Lewis, who argued the cases with Maui attorney Eric Ferrer and Hono­lulu attorney Paul Alston.

Garner, who lives in Kula, said he’s disheartened "that the state is still fighting us on the interest owed. It’s our money."

In his 2002 complaint Garner argued that the Department of Education violated a 1996 law pegging pay for substitutes to rates for Class II teachers — full-time instructors who have a bachelor’s degree but no advanced training. From 1996 to 2005, for example, pay for substitutes, who were not members of a collective bargaining unit, increased 11 percent, compared with 40 percent for Class II teachers.

A state judge in 2005 issued a series of rulings mostly siding with the teachers. The Hawaii Intermediate Court of Appeals upheld the judge’s rulings in 2009.

The state appealed to the Hawaii Supreme Court, which in 2010 sent the case back to Circuit Court for the state and teachers to determine how much was owed.

Although substitutes claimed they were illegally underpaid from 1996, the courts ruled they could receive back pay only for the period from November 2000 to June 2005 because of the statute of limitations.

Calculating what was owed was a challenge and prolonged the case since payroll records go back years and some appeared incorrect.

Garner said the lengthy court battle has been trying.

"What really hurt me the most was the retaliation from the DOE after I filed my lawsuit," he said. "Principals were told not to hire me; teachers were told not to request me as a substitute. The retaliation was extreme."

He said he lost about 30 days or more of work per year and as result had to move to Florida to live with his mother. He moved back to Hawaii last year and no longer works in the teaching field.

Anne Lopez, spokes­woman for the state attorney general’s office, said, "We are pleased that the judge gave final approval to the partial settlement."

The judge’s approval comes with a 30-day appeals period before it can be finalized, but Lopez said the state doesn’t anticipate an appeal.

The attorney general’s office earlier this year soughtjust over $15 million from the Legislature to settle Garner’s class-action suit, which was tentative at the time.

"Because an appeal on the issue of prejudgment interest could take years to resolve and the interest claim continues to accrue at approximately $2,000 a day, the state has reached a tentative settlement with the class to pay only the agreed-upon amount for back wages, along with appropriate taxes," the office wrote. "Upon the Circuit Court’s approval of the settlement, the claim for prejudgment interest will stop accruing."

Gov. Neil Abercrombie signed Act 90 into law in May, appropriating funding for various claims against the state, including the $15 million to settle Garner’s case.

The DOE is employing 4,180 substitute teachers for the 2013-14 school year.

Hawaii ranks highest among the states for substitute teacher pay, according to the U.S. Bureau of Labor Statistics, with a mean hourly rate of $20.98. Hono­lulu’s mean hourly wage of $21.02 ranks ninth highest among metropolitan areas.