§387-1  Definitions.  As used in this
chapter:



"Agriculture" means agriculture as
defined in section 3(f) of the Federal Fair Labor Standards Act of 1938, or as
the same may be amended from time to time.



"Department" means the department of
labor and industrial relations.



"Director" means the director of
labor and industrial relations.



"Employ" includes to permit or suffer
to work.



"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 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.



"Employer" includes any individual,
partnership, association, corporation, business trust, legal representative, or
any organized group of persons, acting directly or indirectly in the interest
of an employer in relation to an employee, but shall not include the State or
any political subdivision thereof or the United States.



"Industry" means a trade, business,
industry, or branch thereof, or group of industries in which individuals are
employed.



"Seasonal pursuit" means one in which
it is customary in each year for the volume of employment in such pursuit to be
substantially increased during a regularly recurring period or periods of
seasonal activity, and in the remainder of the year, owing to climate or other
natural conditions, for the volume of employment to be substantially decreased. 
Periods of seasonal activity shall be considered as "regularly
recurring", within the meaning of this paragraph, notwithstanding that
such periods may vary from year to year.



"Tipped employee" means any employee
engaged in an occupation in which the employee customarily and regularly
receives more than $20 a month in tips.



"Wage" means (except as the
department may provide under section 387-11) legal tender of the United States
or checks on banks convertible into cash on demand at full face value thereof
and in addition thereto the reasonable cost as determined by the department, to
the employer of furnishing an employee with board, lodging, or other facilities
if such board, lodging, or other facilities are customarily furnished by such
employer to the employer's employees.  Except for the purposes of the last
sentence of section 387-2, "wage" shall not include tips or
gratuities of any kind.



"Week" or "workweek" means
a fixed and regularly recurring period of seven consecutive days. [L Sp 1941, c
66, §2; am L 1943, c 159, §1; RL 1945, §4352; am L 1945, c 15, §1(1); am L
1949, c 292, §1; am L 1951, c 180, §1; am L 1953, c 161, §1; am L 1955, cc 15,
120, §1; RL 1955, §94-2; am L 1957, c 256, §3; am L 1959, c 89, §1 and c 164,
§1; am L Sp 1959 2d, c 1, §27; am L 1962, c 15, §2 and c 19, §2; am L 1965, c
67, §1 and c 132, §1(a), (b), and c 167, §1; HRS §387-1; am L 1969, c
36, §§1, 2 and c 219, §1; am L 1976, c 89, §1; am L 1983, c 44, §1; gen ch
1985; am L 1991, c 264, §1; am L 2002, c 43, §1; am L 2005, c 240, §2]



 



Case Notes



 



  Defendants not entitled to summary judgment; in appropriate
circumstances, porterage may be considered in the nature of
"gratuities" for the purposes of this section and §387-2; plaintiffs
raised genuine issue of material fact as to whether "porterage" is a
"gratuity of any kind".  78 H. 351, 893 P.2d 779.