387-1 Definitions. As used in this chapter:

"Agriculture" means agriculture as defined in section 3(f) of the Federal Fair Labor Standards Act of 1938, or as the same may be amended from time to time.

"Casual basis" means employment that is:

(1) Irregular or intermittent; and

(2) Performed for a family or household who directly employs the individual providing the services.

Employment is not on a casual basis, whether performed for one or more family or household employers, if the employment for all employers exceeds twenty hours per week in the aggregate. For babysitting or companionship services for the aged or infirm, employment is not on a casual basis if the service is performed by an individual whose vocation is the provision of babysitting or companionship services.

"Companionship services for the aged or infirm" means those services that provide fellowship, care, and protection for an individual who, because of advanced age or physical or mental infirmity, cannot care for the individual's own needs. "Companionship services for the aged or infirm" does not include services relating to the care and protection of the aged or infirm that require and are performed by trained personnel, such as a registered or practical nurse.

"Department" means the department of labor and industrial relations.

"Director" means the director of labor and industrial relations.

"Domestic service" means services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed. The term includes, but is not limited to, services performed by employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, janitors, laundresses, caretakers, handymen, gardeners, and chauffeurs of automobiles for family use. The term also includes babysitters whose employment is not on a casual basis.

"Employ" includes to permit or suffer to work.

"Employee" includes any individual employed by an employer, but shall not include any individual employed:

(1) At a guaranteed compensation totaling $2,000 or more a month, whether paid weekly, biweekly, or monthly;

(2) In agriculture for any workweek in which the employer of the individual employs less than twenty employees or in agriculture for any workweek in which the individual is engaged in coffee harvesting;

(3) In or about the home of the individual's employer:

(A) In domestic service on a casual basis; or

(B) Providing companionship services for the aged or infirm;

(4) As a house parent in or about any home or shelter maintained for child welfare purposes by a charitable organization exempt from income tax under section 501 of the federal Internal Revenue Code;

(5) By the individual's brother, sister, brother-in-law, sister-in-law, son, daughter, spouse, parent, or parent-in-law;

(6) In a bona fide executive, administrative, supervisory, or professional capacity or in the capacity of outside salesperson or as an outside collector;

(7) In the propagating, catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacean, sponge, seaweed, or other aquatic forms of animal or vegetable life, including the going to and returning from work and the loading and unloading of such products prior to first processing;

(8) On a ship or vessel and who has a Merchant Mariners Document issued by the United States Coast Guard;

(9) As a driver of a vehicle carrying passengers for hire operated solely on call from a fixed stand;

(10) As a golf caddy;

(11) By a nonprofit school during the time such individual is a student attending such school;

(12) In any capacity if by reason of the employee's employment in such capacity and during the term thereof the minimum wage which may be paid the employee or maximum hours which the employee may work during any workweek without the payment of overtime, are prescribed by the federal Fair Labor Standards Act of 1938, as amended, or as the same may be further amended from time to time; provided that if the minimum wage which may be paid the employee under the Fair Labor Standards Act for any workweek is less than the minimum wage prescribed by section 387-2, then section 387-2 shall apply in respect to the employees for such workweek; provided further that if the maximum workweek established for the employee under the Fair Labor Standards Act for the purposes of overtime compensation is higher than the maximum workweek established under section 387-3, then section 387-3 shall apply in respect to such employee for such workweek; except that the employee's regular rate in such an event shall be the employee's regular rate as determined under the Fair Labor Standards Act;

(13) As a seasonal youth camp staff member in a resident situation in a youth camp sponsored by charitable, religious, or nonprofit organizations exempt from income tax under section 501 of the federal Internal Revenue Code or in a youth camp accredited by the American Camping Association; or

(14) As an automobile salesperson primarily engaged in the selling of automobiles or trucks if employed by an automobile or truck dealer licensed under chapter 437.

"Employer" includes any individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons, acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include the State or any political subdivision thereof or the United States.

"Industry" means a trade, business, industry, or branch thereof, or group of industries in which individuals are employed.

"Seasonal pursuit" means one in which it is customary in each year for the volume of employment in such pursuit to be substantially increased during a regularly recurring period or periods of seasonal activity, and in the remainder of the year, owing to climate or other natural conditions, for the volume of employment to be substantially decreased. Periods of seasonal activity shall be considered as "regularly recurring", within the meaning of this paragraph, notwithstanding that such periods may vary from year to year.

"Tipped employee" means any employee engaged in an occupation in which the employee customarily and regularly receives more than $20 a month in tips.

"Wage" means (except as the department may provide under section 387-11) legal tender of the United States or checks on banks convertible into cash on demand at full face value thereof and in addition thereto the reasonable cost as determined by the department, to the employer of furnishing an employee with board, lodging, or other facilities if such board, lodging, or other facilities are customarily furnished by such employer to the employer's employees. Except for the purposes of the last sentence of section 387-2, "wage" shall not include tips or gratuities of any kind.

"Week" or "workweek" means a fixed and regularly recurring period of seven consecutive days. [L Sp 1941, c 66, 2; am L 1943, c 159, 1; RL 1945, 4352; am L 1945, c 15, 1(1); am L 1949, c 292, 1; am L 1951, c 180, 1; am L 1953, c 161, 1; am L 1955, cc 15, 120, 1; RL 1955, 94-2; am L 1957, c 256, 3; am L 1959, c 89, 1 and c 164, 1; am L Sp 1959 2d, c 1, 27; am L 1962, c 15, 2 and c 19, 2; am L 1965, c 67, 1 and c 132, 1(a), (b), and c 167, 1; HRS 387-1; am L 1969, c 36, 1, 2 and c 219, 1; am L 1976, c 89, 1; am L 1983, c 44, 1; gen ch 1985; am L 1991, c 264, 1; am L 2002, c 43, 1; am L 2005, c 240, 2; am L 2013, c 248, 3]

 

Case Notes

 

Defendants not entitled to summary judgment; in appropriate circumstances, porterage may be considered in the nature of "gratuities" for the purposes of this section and 387-2; plaintiffs raised genuine issue of material fact as to whether "porterage" is a "gratuity of any kind". 78 H. 351, 893 P.2d 779 (1995).

 

 

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