HOUSE OF REPRESENTATIVES

H.B. NO.

2208

TWENTY-EIGHTH LEGISLATURE, 2016

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to labor.

 

 

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

 


     SECTION 1.  Section 383-6, Hawaii Revised Statutes, is amended to read as follows:

     "§383-6  Master and servant relationship, not required when[.]; determination of relationship; advisory opinion.  (a)  Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists unless and until it is shown to the satisfaction of the department of labor and industrial relations that:

     (1)  The individual has been and will continue to be free from control or direction over the performance of such service, both under the individual's contract of hire and in fact;

     (2)  The service is either outside the usual course of the business for which the service is performed or that the service is performed outside of all the places of business of the enterprise for which the service is performed; and

     (3)  The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of service.

     (b)  If the determination of an individual's services performed for wages or under any contract of hire is part of an unemployment insurance investigation, the department shall provide a written determination letter by means of certified mail to the investigated individual and employer within ten days of the conclusion of the investigation describing why the department determined an individual's services are or are not deemed employment.  The determination letter shall address:

     (1)  Paragraphs (1) to (3) of subsection (a); and

     (2)  Any administrative rule the department uses in determining whether employment exists.

     (c)  An employer may appeal the department's determination of a relationship pursuant to section 383-38.  The department shall have thirty days after the filing of the appeal by an employer to issue its decision regarding the appeal.  If the department does not issue its decision regarding the appeal in thirty days, the appeal shall be dismissed in favor of the employer.

     (d)  Prior to an unemployment insurance investigation by the department, an individual or employer may request that the department issue a written advisory opinion about whether the individual's services performed for wages or under any contract of hire would be deemed to be employment subject to this chapter.

     (e)  The department shall provide a written advisory opinion to the requesting individual or employer describing whether the individual's services performed for wages or under any contract of hire could be deemed employment.  The advisory opinion shall be issued no later than thirty days after the request was received.  The advisory opinion shall address:

     (1)  Paragraphs (1) to (3) of subsection (a); and

     (2)  Any administrative rule the department uses in determining whether employment exists.

     (f)  The department shall place a copy of each advisory letter issued on its website; provided that all personal or identifiable information shall be redacted."

     SECTION 2.  Section 383-38, Hawaii Revised Statutes, is amended to read as follows:

     "§383-38  Appeals, filing, and hearing.  (a)  The claimant or any other party entitled to notice of a determination or redetermination as herein provided may file an appeal from the determination or redetermination at the office of the department in the county in which the claimant resides or in the county in which the claimant was last employed, or with a copy of the contested determination at the employment security appeals referee's office, within ten days after the date of mailing of the notice to the claimant's or party's last known address, or if the notice is not mailed, within ten days after the date of delivery of the notice to the claimant or party.  The department may for good cause extend the period within which an appeal may be filed to thirty days.  Written notice of a hearing of an appeal shall be sent by first class, nonregistered, noncertified mail to the claimant's or party's last known address at least twelve days prior to the initial hearing date.

     (b)  The appeal under subsection (a) shall be heard in the county in which the appeal is filed, except that the department may by its rules provide for the holding of a hearing in another county with the consent of all parties or where necessary in order that a fair and impartial hearing may be had, and may provide for the taking of depositions.  Unless the appeal is withdrawn with the permission of the referee, the referee after affording the parties reasonable opportunity for a fair hearing shall make findings and conclusions and on the basis thereof affirm, modify, or reverse such determination or redetermination.  The parties to any appeal shall be promptly notified of the decision of the referee and shall be furnished with a copy of the decision and the findings and conclusions in support thereof and the decisions shall be final and shall be binding upon each party unless a proceeding for judicial review is initiated by the party pursuant to section 383‑41; provided that within the time provided for taking an appeal and prior to the filing of a notice of appeal, the referee may reopen the matter, upon the application of the director or any other party, or upon the referee's own motion, and thereupon may take further evidence or may modify or reverse the referee's decision, findings, or conclusions.  If the matter is reopened, the referee shall render a further decision in the matter either reaffirming or modifying or reversing the referee's original decision, and notice shall be given thereof in the manner hereinbefore provided.  Upon reopening, the referee who heard the original appeal shall reconsider the matter, except where the referee is no longer employed as a referee or the referee disqualifies oneself from reconsidering the referee's decision.

     (c)  The department shall issue a decision regarding an employer's appeal to a determination of whether an individual's services are deemed employment pursuant to section 383-6 within thirty days after the filing of the appeal.  If the department does not issue its decision regarding the appeal within thirty days, the appeal shall be dismissed in favor of the employer.

     [(c)] (d)  The time to initiate judicial review under section 383-41 shall run from the notice of such further decision, if the matter has been reopened under subsection (b).

     [(d)] (e)  If a claimant or party does not receive the written notice under subsection (a), a second written notice shall be sent by certified mail, and the hearing on the appeal shall be rescheduled accordingly.

     [(e)] (f)  Upon application to, and approval by, the employment security appeals referee's office, a claimant or party to an appeal may elect to receive hearing notices, decisions, and other appeal documents from the referee's office in electronic format in lieu of notice by mail.  The date of electronic transmission is equivalent to the mailing date for purposes of this section.  Electronic notification status may be rescinded at any time by the referee's office, claimant, or any party upon written notification."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 



 

Report Title:

Employment; Independent Contractors; Advisory Letters; DLIR

 

Description:

Requires DLIR to provide written determination letters to individuals and employers that have been the subjects of an unemployment insurance investigate describing why the individual is deemed to be an employee or independent contractor.  Authorizes individuals and employers to request an advisory opinion from DLIR explaining whether an individual could be deemed an employee or independent contractor.  Requires DLIR to place redacted advisory opinions on its website.  Requires DLIR to respond to an employer's appeal of a determination of employment status within 30 days or the appeal will be dismissed in favor of the employer.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.