HOUSE OF REPRESENTATIVES

H.B. NO.

2208

TWENTY-EIGHTH LEGISLATURE, 2016

H.D. 1

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 383, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"383-   Publication of decisions. The department shall publish the findings of all determinations, redeterminations, appeals, and written advisory opinions issued on its website; provided that all personal or identifiable information shall be redacted.

383-   Advisory opinions. 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.

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) Section 383-6(1) to (3); and

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

SECTION 2. Section 383-6, Hawaii Revised Statutes, is amended to read as follows:

"383-6 [Master and servant] Common law employer and employee relationship, not required when. 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] employer and employee 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."

SECTION 3. 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 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) 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) 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.

(f) If an appeal of a coverage determination is filed by the employer pursuant to this section, the employment security appeals referee's office shall render a decision within thirty days after the filing of the appeal by the employer. A failure by the employment security appeals referee's office to render a decision within the prescribed period shall result in the reimbursement of any assessment of contribution or penalty pursuant to section 383-74 in accordance with section 383-127."

SECTION 4. Section 383-127, Hawaii Revised Statutes, is amended to read as follows:

"[[]383-127[]] Special unemployment insurance administration fund. (a) There is created in the state treasury a special fund to be known as the special unemployment insurance administration fund. All interest, fines, and penalties collected under this chapter on and after October 1, 1987, shall be paid into this fund and shall not be commingled with other state funds but maintained in a separate account on the books of the depository. Interest earned upon moneys in the administration fund shall be deposited and credited to the administration fund.

All moneys payable to the administration fund shall be transferred immediately into the administration fund from the clearing account of the unemployment compensation fund. The director of finance shall be the treasurer and custodian of the administration fund and shall administer the fund in accordance with directions by the director of labor and industrial relations. The director of finance shall be liable on the director's official bond for the faithful performance of all duties in connection with the administration fund. All sums recovered on such surety bond for losses sustained by the administration fund shall be deposited into the fund.

(b) Notwithstanding any other provisions of this section to the contrary, the moneys in the administration fund shall be used for the payment of the following expenses and obligations relating to the administration of the unemployment insurance program:

(1) Refunds or adjustments of interest on delinquent contributions and penalties or fines erroneously collected under this chapter;

(2) Expenses for which allocation of federal funds have been duly requested but not yet received, subject to the reimbursement of the expenditures against the funds received;

(3) Expenditures deemed necessary by the director in the administration of this chapter for which no allocations of federal administration funds have been made; [and]

(4) Interest due under the provisions of section 1202(b) of the Social Security Act, as amended, for advances made to the unemployment compensation fund[.]; and

(5) Reimbursement of contribution or penalty paid by employer when the employment security appeals referee's office fails to file a decision on appeal within thirty days.

(c) No moneys in the administration fund shall be expended for any purpose for which federal funds would otherwise be available.

(d) All expenditures from the administration fund, except for refunds of penalties and interest erroneously collected, shall be approved by the director.

(e) All moneys deposited or paid into the administration fund shall be continuously available to the director for expenditures consistent with this section and shall not lapse at any time. The director may transfer moneys deposited in the administration fund to the unemployment compensation fund as the director deems necessary.

(f) Twenty days before the convening of the legislature in regular session each year, the director shall submit a report to the legislature on the financial status of the special unemployment insurance administration fund."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.



 

Report Title:

Employment Security Appeals Referee's Office; Labor

 

Description:

Clarifies that the common law employer and employee relationship is not required for employment. Requires ESARO to render appeals decisions within 30 days or a reimbursement will be made. Requires publication of decisions. Authorizes requests for advisory opinions. (HB2208 HD1)

 

 

 

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