REPORT TITLE:
Employee determination


DESCRIPTION:
Aligns all four of Hawaii's labor laws to the same definition of
an "employee."

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1995
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO EMPLOYMENT.


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 386-1, Hawaii Revised Statutes, is
 
 2 amended by amending the definition of "employment" to read:
 
 3      ""Employment" means [any service performed by an individual
 
 4 for another person under any contract of hire or apprenticeship,
 
 5 express or implied, oral or written, whether lawfully or
 
 6 unlawfully entered into.] those services provided under section
 
 7 383-6.  It includes service of public officials, whether elected
 
 8 or under any appointment or contract of hire express or implied.
 
 9      "Employment" does not include the following service:
 
10      (1)  Service for a religious, charitable, educational, or
 
11           nonprofit organization if performed in a voluntary or
 
12           unpaid capacity;
 
13      (2)  Service for a religious, charitable, educational, or
 
14           nonprofit organization if performed by a recipient of
 
15           aid therefrom and the service is incidental to or in
 
16           return for the aid received;
 
17      (3)  Service for a school, college, university, college
 
18           club, fraternity, or sorority if performed by a student
 
19           who is enrolled and regularly attending classes and in
 
20           return for board, lodging, or tuition furnished, in
 
21           whole or in part;
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1      (4)  Service performed by a duly ordained, commissioned, or
 
 2           licensed minister, priest, or rabbi of a church in the
 
 3           exercise of the minister's, priest's, or rabbi's
 
 4           ministry or by a member of a religious order in the
 
 5           exercise of nonsecular duties required by the order;
 
 6      (5)  Service performed by an individual for another person
 
 7           solely for personal, family, or household purposes if
 
 8           the cash remuneration received is less than $225 during
 
 9           the current calendar quarter and during each completed
 
10           calendar quarter of the preceding twelve-month period;
 
11      (6)  Domestic, which includes attendant care, and day care
 
12           services authorized by the department of human services
 
13           under the Social Security Act, as amended, performed by
 
14           an individual in the employ of a recipient of social
 
15           service payments;
 
16      (7)  Service performed without wages for a corporation
 
17           without employees by a corporate officer in which the
 
18           officer is at least a twenty-five per cent stockholder;
 
19      (8)  Service performed by an individual for a corporation if
 
20           the individual owns at least fifty per cent of the
 
21           corporation; provided that no employer shall require an
 
22           employee to incorporate as a condition of employment;
 
23           and
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1      (9)  Service performed by an individual for another person
 
 2           as a real estate salesperson or as a real estate
 
 3           broker, if all the service performed by the individual
 
 4           for the other person is performed for remuneration
 
 5           solely by way of commission.
 
 6 As used in this paragraph "religious, charitable, educational, or
 
 7 nonprofit organization" means a corporation, unincorporated
 
 8 association, community chest, fund, or foundation organized and
 
 9 operated exclusively for religious, charitable, or educational
 
10 purposes, no part of the net earnings of which inure to the
 
11 benefit of any private shareholder or individual."
 
12      SECTION 2.  Section 392-3, Hawaii Revised Statutes, is
 
13 amended by amending the definition of ""employment" and
 
14 "employed"" to read:
 
15      ""Employment" [and "employed" means service, including
 
16 service in interstate commerce, performed for wages under any
 
17 contract of hire, written or oral, express or implied, with an
 
18 employer,] means those services provided under section 383-6,
 
19 except as otherwise provided in sections 392-4 and 392-5."
 
20      SECTION 3.  Section 386-73.5, Hawaii Revised Statutes, is
 
21 repealed.
 
22      ["[386-73.5]  Proceedings to determine employment and
 
23 coverage.  The director of labor and industrial relations shall
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 have original jurisdiction over all controversies and disputes
 
 2 over employment and coverage under this chapter.  Except in cases
 
 3 where services are specifically and expressly excluded from
 
 4 "employment" under section 386-1, it shall be presumed that
 
 5 coverage applies unless the party seeking exclusion is able to
 
 6 establish under both the control test and the relative nature of
 
 7 the work test that coverage is not appropriate under this
 
 8 chapter.  There shall be a right of appeal from decisions of the
 
 9 director to the appellate board and thence to the supreme
 
10 court."]
 
11      SECTION 4.  Section 392-21.5, Hawaii Revised Statutes, is
 
12 repealed.
 
13      ["[392-21.5]  Proceedings to determine employment and
 
14 coverage.  The director of labor and industrial relations shall
 
15 have original jurisdiction over all controversies and disputes
 
16 over employment and coverage under this chapter.  Except in cases
 
17 where services are specifically and expressly excluded from
 
18 "employment" under section 392-5, it shall be presumed that
 
19 coverage applies unless the party seeking exclusion is able to
 
20 establish under both the control test and the relative nature of
 
21 the work test that coverage is not appropriate under this
 
22 chapter.  There shall be a right of appeal from decisions of the
 
23 director to the circuit court and thence to the supreme court."]
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1      SECTION 5.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 6.  This Act shall take effect upon its approval.
 
 4 
 
 5                           INTRODUCED BY:  _______________________