THE SENATE

S.B. NO.

535

TWENTY-SEVENTH LEGISLATURE, 2013

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO LABOR.

 

 

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

 


SECTION 1. Chapter 377, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"377-    Hours of labor for domestic workers. (a) No person or corporation employing a domestic worker shall require the domestic worker to work more than the following number of hours per week unless the domestic worker receives compensation for overtime work at a rate that is equal to at least one and one-half times the domestic worker's normal wage rate:

(1) Forty hours per week; provided that the domestic worker does not reside in the employer's home; or

(2) Forty-four hours per week; provided that the domestic worker resides in the employer's home.

(b) Every person employed as a domestic worker shall be allowed at least twenty-four consecutive hours of rest in each calendar week. No provision of this subsection shall prohibit a domestic worker from voluntarily agreeing to work on a day of rest required by this subsection; provided that the worker is compensated at the overtime rate specified in subsection (a) for all hours worked on the day of rest. The day of rest required under this subsection, to the extent possible, shall coincide with the traditional day reserved by the domestic worker for religious worship. In addition, after one year of work with the same employer, a domestic worker shall be entitled to at least three days of rest in each calendar year at the domestic worker's regular rate of compensation."

SECTION 2. Section 377-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

""Casual basis" means employment that is irregular or intermittent, and that is not performed by an individual whose vocation is the provision of babysitting or companionship services or an individual employed by an employer or agency other than the family or household using the individual's 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.

"Domestic worker" means a person employed in a home or residence for the purpose of caring for a child, serving as a companion for a sick, convalescing, or elderly person, housekeeping, or for any other domestic service purpose. "Domestic worker" does not include any individual who is:

(1) Working on a casual basis;

(2) Engaged in providing companionship services, as described in section 213(a)(15) of the Fair Labor Standards Act of 1938 (29 U.S.C. 201, et seq.), and who is employed by an employer or agency other than the family or household using the individual's services; or

(3) A relative through blood, marriage, or adoption of:

(A) The employer; or

(B) The person for whom the worker is delivering services under a program funded or administered by federal, state, or county government."

SECTION 3. Section 378-1, Hawaii Revised Statutes, is amended by amending the definition of "employment" to read as follows:

""Employment" means any service performed by an individual for another person under any contract of hire, express or implied, oral or written, whether lawfully or unlawfully entered into. Employment does not include services by an individual employed as a domestic in the home of any person[.]; except as provided in section 378-2(a)(9) and (10)."

SECTION 4. Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

"378-2 Discriminatory practices made unlawful; offenses defined. (a) It shall be an unlawful discriminatory practice:

(1) Because of race, sex, including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, or domestic or sexual violence victim status if the domestic or sexual violence victim provides notice to the victim's employer of such status or the employer has actual knowledge of such status:

(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, that expresses, directly or indirectly, any limitation, specification, or discrimination;

(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

(2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

(3) For any person, whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

(4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

(5) For any employer to refuse to hire or employ or to bar or discharge from employment any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

(6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

(7) For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast; [or]

(8) For any employer to refuse to hire or employ, bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment of any individual because of the individual's credit history or credit report, unless the information in the individual's credit history or credit report directly relates to a bona fide occupational qualification under section 378-3(2)[.];

(9) For any employer to engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to a domestic worker when:

(A) Submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment;

(B) Submission to or rejection of the conduct by an individual is used as the basis for employment decisions affecting the individual; or

(C) The conduct has the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, or offensive working environment; or

(10) For any employer to subject a domestic worker to unwelcome harassment based on gender, race, religion or national origin, where the harassment has the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, or offensive working environment.

(b) For purposes of subsection (a)(1):

(1) An employer may verify that an employee is a victim of domestic or sexual violence by requesting that the employee provide:

(A) A signed written statement from a person listed below from whom the employee or the employee's minor child has sought assistance in relation to the domestic or sexual violence:

(i) An employee, agent, or volunteer of a victim services organization;

(ii) The employee's attorney or advocate;

(iii) The attorney or advocate of the employee's minor child;

(iv) A medical or other health care professional; or

(v) A member of the clergy; or

(B) A police or court record supporting the occurrence of the domestic or sexual violence; and

(2) An employer may verify an employee's status as a domestic or sexual violence victim not more than once every six months following the date the employer:

(A) Was provided notice by the employee of the employee's status as a domestic or sexual violence victim;

(B) Has actual knowledge of the employee's status as a domestic or sexual violence victim; or

(C) Received verification that the employee is a domestic or sexual violence victim;

provided that where the employee provides verification in the form of a protective order related to the domestic or sexual violence with an expiration date, the employer may not request any further form of verification of the employee's status as a domestic or sexual violence victim until the date of the expiration or any extensions of the protective order, whichever is later.

(c) For the purposes of this section, "domestic worker" shall have the same meaning as in section 377-1."

SECTION 5. Section 386-1, Hawaii Revised Statutes, is amended by amending the definition of "employment" to read as follows:

""Employment" means any service performed by an individual for another person under any contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully entered into. [It] "Employment" includes [service]:

(1) Service of public officials, whether elected or under any appointment or contract of hire, express or implied[.]; and

(2) Service of domestic workers, as defined in section 377-1.

"Employment" does not include:

(1) Service for a religious, charitable, educational, or nonprofit organization if performed in a voluntary or unpaid capacity;

(2) Service for a religious, charitable, educational, or nonprofit organization if performed by a recipient of aid therefrom and the service is incidental to or in return for the aid received;

(3) Service for a school, college, university, college club, fraternity, or sorority if performed by a student who is enrolled and regularly attending classes and in return for board, lodging, or tuition furnished, in whole or in part;

(4) Service performed by a duly ordained, commissioned, or licensed minister, priest, or rabbi of a church in the exercise of the minister's, priest's, or rabbi's ministry or by a member of a religious order in the exercise of nonsecular duties required by the order;

(5) Service performed by an individual for another person solely for personal, family, or household purposes if the cash remuneration received is less than $225 during the current calendar quarter and during each completed calendar quarter of the preceding twelve-month period;

(6) Domestic, in-home and community-based services for persons with developmental and intellectual disabilities under the medicaid home and community-based services program pursuant to Title 42 Code of Federal Regulations sections 440.180 and 441.300, and Title 42 Code of Federal Regulations, Part 434, Subpart A, as amended, or when provided through state funded medical assistance to individuals ineligible for medicaid, and identified as chore, personal assistance and habilitation, residential habilitation, supported employment, respite, and skilled nursing services, as the terms are defined by the department of human services, performed by an individual whose services are contracted by a recipient of social service payments and who voluntarily agrees in writing to be an independent contractor of the recipient of social service payments;

(7) Domestic services, which include attendant care, and day care services authorized by the department of human services under the Social Security Act, as amended, or when provided through state-funded medical assistance to individuals ineligible for medicaid, when performed by an individual in the employ of a recipient of social service payments. For the purposes of this paragraph only, a "recipient of social service payments" is a person who is an eligible recipient of social services such as attendant care or day care services;

(8) Service performed without wages for a corporation without employees by a corporate officer in which the officer is at least a twenty-five per cent stockholder;

(9) Service performed by an individual for a corporation if the individual owns at least fifty per cent of the corporation; provided that no employer shall require an employee to incorporate as a condition of employment;

(10) Service performed by an individual for another person as a real estate salesperson or as a real estate broker, if all the service performed by the individual for the other person is performed for remuneration solely by way of commission;

(11) Service performed by a member of a limited liability company if the member is an individual and has a distributional interest, as defined in section 428-101, of not less than fifty per cent in the company; provided that no employer shall require an employee to form a limited liability company as a condition of employment;

(12) Service performed by a partner of a partnership, as defined in section 425-101, if the partner is an individual; provided that no employer shall require an employee to become a partner or form a partnership as a condition of employment;

(13) Service performed by a partner of a limited liability partnership if the partner is an individual and has a transferable interest as described in section 425-127 in the partnership of not less than fifty per cent; provided that no employer shall require an employee to form a limited liability partnership as a condition of employment; and

(14) Service performed by a sole proprietor.

As used in this definition, "religious, charitable, educational, or nonprofit organization" means a corporation, unincorporated association, community chest, fund, or foundation organized and operated exclusively for religious, charitable, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual."

SECTION 6. Section 387-1, Hawaii Revised Statutes, is amended by amending the definition of "employee" to read as follows:

""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 domestic service in or about the home of the individual's employer on a casual basis, as defined in section 377-1, or 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;

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

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

(6) 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;

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

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

(9) As a golf caddy;

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

(11) 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;

(12) 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

(13) 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."

SECTION 7. The department of labor and industrial relations shall submit a report to the legislature no later than twenty days prior to the convening of the regular session of 2014 on the feasibility and practicality of allowing domestic workers to organize for the purposes of collective bargaining.

In preparing the report, the department of labor and industrial relations shall consult with representatives of domestic workers, individuals and agencies that employ domestic workers, and relevant state agencies. The report shall address:

(1) The feasibility of an employee organization formed in accordance with the Hawaii employment relations act;

(2) How bargaining units for domestic worker organizations could be formed;

(3) Whether there are any unique issues relating to collective bargaining for domestic workers; and

(4) Whether there are other possible frameworks for collective organization or for ensuring the benefits that accompany organization for domestic workers.

The report shall also determine the best means of providing easily accessible educational and informational material for domestic workers and their employers. The educational and informational material shall cover employment benefits, tax, and insurance laws.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Domestic Workers Bill of Rights; Report

 

Description:

Establishes rights for domestic workers. Directs DLIR to report on feasibility of allowing domestic workers to organize for the purposes of collective bargaining.

 

 

 

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