HOUSE OF REPRESENTATIVES

H.B. NO.

347

TWENTY-NINTH LEGISLATURE, 2017

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to employment security.

 

 

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

 


SECTION 1. The legislature finds that the economy is changing and increasing numbers of individuals are facing decisions on whether to choose to become entrepreneurs and go into business for themselves or remain in employment relationships and maintain the protections afforded by various labor laws, including Hawaii's employment security law. The legislature further finds that many of these individuals may not be aware of the criteria used by the department of labor and industrial relations when making determinations as to whether an individual is in an employment relationship or is a bona fide independent contractor.

Accordingly, the purpose of this Act is to provide greater clarity in Hawaii's employment security law to those individuals choosing to become entrepreneurs by setting forth in greater detail the criteria used to determine independent contractor status.

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

"383-6 [Master and servant relationship, not required when.] Independent Contract. (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] employer and employee exists unless and until it is shown to the satisfaction of the department [of labor and industrial relations] that[:] in the department's determination, a preponderance of the factors set forth in subsection (b) has been met and 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) Under Internal Revenue Service rules and common law, independent contractors control the manner and means by which contracted services, products, or results are achieved. The twenty factors set forth below shall be guidelines for determining whether an individual could be deemed an independent contractor. An individual shall not have to meet all twenty factors to qualify as an independent contractor. The degree of importance of each factor may vary, depending on the occupation and the individual facts of each case as determined by the department. A preponderance of the following twenty factors may indicate a worker is an independent contractor if the independent contractor:

(1) Controls how the work results are achieved, although the client may provide job specifications;

(2) Uses the independent contractor's own methods and does not receive client-provided training;

(3) Performs work that is not part of the client's regular line of business;

(4) Is engaged to provide a result and may hire others to achieve that result;

(5) Retains control and responsibility over the hiring, paying, and supervising of the independent contractor's assistants;

(6) Does not maintain a continuing relationship with the client;

(7) Has flexibility of schedule and sets the independent contractor's own work hours;

(8) Has the ability to choose when and for whom the independent contractor works;

(9) Controls the job location and is not required to work on a client's premises;

(10) Sets the order and sequence of work to be performed;

(11) Provides final results, as specified in the contract;

(12) Is paid by the job for results;

(13) Is responsible for the independent contractor's incidental business expenses;

(14) Furnishes the independent contractor's own tools and materials;

(15) May invest in and maintain the independent contractor's own work facilities that the contractor may use to perform services for clients;

(16) Can realize a profit or suffer a loss as a result of the independent contractor's services;

(17) Is able to simultaneously provide services to multiple unrelated clients;

(18) Makes services available to the general public on a regular and consistent basis, in at least one of the following ways: having an office and assistants; having business signs; having a general excise tax license; listing services in a business directory; or advertising services;

(19) Cannot be discharged; provided that the independent contractor produces a result that meets contract specifications; and

(20) Agrees to satisfactorily complete a specific job and cannot terminate services without liability, except as provided under the contract.

(c) For purposes of this section:

"Client" means an entity or individual that obtains services or receives products or results from an independent contractor. A client has the right to control or direct only the result of the work of an independent contractor and does not have the right to control or direct the manner and means used by an independent contractor to accomplish the result.

"Independent contractor" means an individual customarily engaged in an independently established trade, occupation, profession, or business who is performing services or providing products or results and who is established in the business of performing those services or providing those products or results independent of the connection the individual may have with a client. An independent contractor has no expectation of benefits that would normally accrue from an employer-employee relationship and is responsible for obtaining a current general excise tax license and for paying all applicable taxes."

SECTION 3. The director 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 2018 on the guidelines developed by the unemployment insurance coverage committee to assist auditors in applying section 383-6, Hawaii Revised Statutes, during the auditor's investigations.

SECTION 4. The director of labor and industrial relations shall submit a report to the legislature no later than twenty days prior to the convening of each regular session regarding the number of determinations applying section 383-6, Hawaii Revised Statutes, rendered by the department of labor and industrial relations' unemployment insurance division and employment security appeals referee's office finding both independent contractor and covered employment status.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Employment Security; Independent Contractor; Guidelines; Department of Labor and Industrial Relations

 

Description:

Clarifies Hawaii's employment security law for independent contractors. Includes twenty factors to be used as guidelines when determining whether an individual could be an independent contractor. Retains the ability of the department of labor and industrial relations to determine if an individual is an independent contractor. Requires the director of labor and industrial relations to report to the legislature prior to the regular session of 2018 regarding guidelines developed by the unemployment insurance coverage committee. Requires an annual report to the legislature regarding covered employment determinations.

 

 

 

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