§387-1  Definitions.  As used in thischapter:

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

"Department" means the department oflabor and industrial relations.

"Director" means the director oflabor and industrial relations.

"Employ" includes to permit or sufferto work.

"Employee" includes any individualemployed by an employer, but shall not include any individual employed:

(1)  At a guaranteed compensation totaling $2,000 ormore a month, whether paid weekly, biweekly, or monthly;

(2)  In agriculture for any workweek in which theemployer of the individual employs less than twenty employees or in agriculturefor any workweek in which the individual is engaged in coffee harvesting;

(3)  In domestic service in or about the home of theindividual's employer or as a house parent in or about any home or sheltermaintained for child welfare purposes by a charitable organization exempt fromincome 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 salespersonor 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 thegoing to and returning from work and the loading and unloading of such productsprior to first processing;

(7)  On a ship or vessel and who has a MerchantMariners Document issued by the United States Coast Guard;

(8)  As a driver of a vehicle carrying passengers forhire operated solely on call from a fixed stand;

(9)  As a golf caddy;

(10)  By a nonprofit school during the time suchindividual is a student attending such school;

(11)  In any capacity if by reason of the employee'semployment in such capacity and during the term thereof the minimum wage whichmay be paid the employee or maximum hours which the employee may work duringany workweek without the payment of overtime, are prescribed by the federalFair Labor Standards Act of 1938, as amended, or as the same may be furtheramended from time to time; provided that if the minimum wage which may be paidthe employee under the Fair Labor Standards Act for any workweek is less thanthe minimum wage prescribed by section 387-2, then section 387-2 shall apply inrespect to the employees for such workweek; provided further that if themaximum workweek established for the employee under the Fair Labor StandardsAct for the purposes of overtime compensation is higher than the maximumworkweek established under section 387-3, then section 387-3 shall apply inrespect to such employee for such workweek; except that the employee's regularrate in such an event shall be the employee's regular rate as determined underthe Fair Labor Standards Act;

(12)  As a seasonal youth camp staff member in aresident situation in a youth camp sponsored by charitable, religious, ornonprofit organizations exempt from income tax under section 501 of the federalInternal Revenue Code or in a youth camp accredited by the American CampingAssociation; or

(13)  As an automobile salesperson primarily engaged inthe selling of automobiles or trucks if employed by an automobile or truckdealer licensed under chapter 437.

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

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

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

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

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

"Week" or "workweek" meansa fixed and regularly recurring period of seven consecutive days. [L Sp 1941, c66, §2; am L 1943, c 159, §1; RL 1945, §4352; am L 1945, c 15, §1(1); am L1949, 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, c67, §1 and c 132, §1(a), (b), and c 167, §1; HRS §387-1; am L 1969, c36, §§1, 2 and c 219, §1; am L 1976, c 89, §1; am L 1983, c 44, §1; gen ch1985; 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 appropriatecircumstances, porterage may be considered in the nature of"gratuities" for the purposes of this section and §387-2; plaintiffsraised genuine issue of material fact as to whether "porterage" is a"gratuity of any kind".  78 H. 351, 893 P.2d 779.