§383-2 - Definition of employment.

§383-2 Definition of employment. (a) As used in this chapter, unless the context clearly requires otherwise,"employment", subject to sections 383-3 to 383-9, means service,including service in interstate commerce, performed for wages or under any contractof hire, written or oral, express or implied.

(b) "Employment" includes, but isnot limited to, any service performed prior to January 1, 1978, which wasemployment as defined in this section prior to such date and, subject to theother provisions of this section, service performed after December 31,1977, by an employee as defined in section 3306(i) and (o) of the federalUnemployment Tax Act, including service in interstate commerce.

(c) The term "employment" shallinclude the service of an individual who is a citizen of the United States,performed outside the United States (except in Canada or the Virgin Islands asprovided in paragraph (5) of this subsection), after December 31, 1971, inthe employ of an American employer or of this State or of any of itsinstrumentalities or of any of its political subdivisions (other than servicewhich is deemed employment under the provisions of section 383-3 or theparallel provisions of another state's law) if:

(1) The employer's principal place of business in theUnited States is located in this State; or

(2) The employer has no place of business in theUnited States, but

(A) The employer is an individual who is aresident of this State; or

(B) The employer is a corporation which isorganized under the laws of this State; or

(C) The employer is a partnership or a trustand the number of the partners or trustees who are residents of this State isgreater than the number who are residents of any one other state; or

(3) None of the criteria of paragraphs (1) and (2) ofthis subsection is met but the employer has elected coverage in this State or,the employer having failed to elect coverage in any state, the individual hasfiled a claim for benefits, based on such service under the law of this State.

(4) An "American employer", for purposes ofthis subsection, means a person who is:

(A) An individual who is a resident of theUnited States; or

(B) A partnership if two-thirds or more of thepartners are residents of the United States; or

(D) A corporation organized under the laws ofthe United States or of any state.

(5) As used in this subsection, the term "UnitedStates" includes the states, the District of Columbia, and theCommonwealth of Puerto Rico; and, after December 31 of the year in whichthe Secretary of Labor approves for the first time an unemployment insurancelaw of the Virgin Islands submitted to the Secretary of Labor for approval, theterm "United States" shall also include the Virgin Islands.

(d) The term "employment" shallinclude an individual's service, wherever performed within the United States,the Virgin Islands or Canada, if (a) such service is not covered under theunemployment compensation law of any other state, the Virgin Islands, orCanada, and (b) the place from which the service is directed or controlled isin this State.

(e) "Employment" includes serviceperformed by an individual in agricultural labor as defined in section 383-9except for service excluded under paragraph (1) of section 383-7.

(1) For the purposes of this section any individualwho is a member of a crew furnished by a crew leader to perform service inagricultural labor for any other person shall be treated as an employee of suchcrew leader:

(A) If such crew leader holds a validcertificate of registration under the Farm Labor Contractor Registration Act of1963; or substantially all the members of such crew operate or maintaintractors, mechanized harvesting or cropdusting equipment, or any othermechanized equipment, which is provided by such crew leader; and

(B) If such employee is not an employee ofsuch other person within the meaning of subsection (b) of this section.

(2) For the purposes of this subsection, in the caseof any individual who is furnished by a crew leader to perform service inagricultural labor for any other person and who is not treated as an employeeof such crew leader under paragraph (1) above:

(A) Such other person and not the crew leadershall be treated as the employer of such individual; and

(B) Such other person shall be treated ashaving paid cash remuneration to such individual in an amount equal to theamount of cash remuneration paid to such individual by the crew leader (eitheron the crew leader's own behalf or on behalf of such other person) for theservice in agricultural labor performed for such other person.

(3) For the purposes of this subsection, the term"crew leader" means an individual who:

(A) Furnishes individuals to perform servicein agricultural labor for any other person;

(B) Pays (either on the crew leader's ownbehalf or on behalf of such other person) the individuals so furnished by thecrew leader for the service in agricultural labor performed by them; and

(C) Has not entered into a written agreementwith such other person under which such individual is designated as an employeeof such other person. [L 1939, c 219, §2(k)(1); am L 1941, c 304, §1, pt ofsubs 8; RL 1945, §4203; RL 1955, §93-2; HRS §383-2; am L 1971, c 187, §1; am L1977, c 148, §1; gen ch 1985]

Case Notes

Definition as supplemented by §383-6 extends coverage of lawbeyond the common law relationship of master and servant. 41 H. 508.

Contractor incorporated in Nevada, with no constructionactivity in Hawaii, had an American base and principal of business in Hawaii;subjection of Nevada corporation to unemployment compensation contributions didnot violate due process; subsection (c) was enacted to bring overseasemployment of American citizens by American contractors within the ambit of theHawaii Employment Security Law. 64 H. 274, 639 P.2d 1088.