§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 contract
of hire, written or oral, express or implied.

(b) "Employment" includes, but is
not limited to, any service performed prior to January 1, 1978, which was
employment as defined in this section prior to such date and, subject to the
other provisions of this section, service performed after December 31,
1977, by an employee as defined in section 3306(i) and (o) of the federal
Unemployment Tax Act, including service in interstate commerce.

(c) The term "employment" shall
include 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 as
provided in paragraph (5) of this subsection), after December 31, 1971, in
the employ of an American employer or of this State or of any of its
instrumentalities or of any of its political subdivisions (other than service
which is deemed employment under the provisions of section 383-3 or the
parallel provisions of another state's law) if:

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

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

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

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

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

(3) None of the criteria of paragraphs (1) and (2) of
this 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 has
filed a claim for benefits, based on such service under the law of this State.

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

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

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

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

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

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

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

(1) For the purposes of this section any individual
who is a member of a crew furnished by a crew leader to perform service in
agricultural labor for any other person shall be treated as an employee of such
crew leader:

(A) If such crew leader holds a valid
certificate of registration under the Farm Labor Contractor Registration Act of
1963; or substantially all the members of such crew operate or maintain
tractors, mechanized harvesting or cropdusting equipment, or any other
mechanized equipment, which is provided by such crew leader; and

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

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

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

(B) Such other person shall be treated as
having paid cash remuneration to such individual in an amount equal to the
amount of cash remuneration paid to such individual by the crew leader (either
on the crew leader's own behalf or on behalf of such other person) for the
service 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 service
in agricultural labor for any other person;

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

(C) Has not entered into a written agreement
with such other person under which such individual is designated as an employee
of such other person. [L 1939, c 219, §2(k)(1); am L 1941, c 304, §1, pt of
subs 8; RL 1945, §4203; RL 1955, §93-2; HRS §383-2; am L 1971, c 187, §1; am L
1977, c 148, §1; gen ch 1985]

Case Notes

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

Contractor incorporated in Nevada, with no construction
activity in Hawaii, had an American base and principal of business in Hawaii;
subjection of Nevada corporation to unemployment compensation contributions did
not violate due process; subsection (c) was enacted to bring overseas
employment of American citizens by American contractors within the ambit of the
Hawaii Employment Security Law. 64 H. 274, 639 P.2d 1088.