HAR Chapter 108 – Commercial Employment Agencies

HAWAII ADMINISTRATIVE RULES
TITLE 16
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
CHAPTER 108
COMMERCIAL EMPLOYMENT AGENCIES
Subchapter 1 	General Provisions
§16-108-1 	Objective
§16-108-2 	Definitions
Subchapter 2 	Fees
§16-108-3 	Fees
§16-108-4 	Payment procedure
Subchapter 3 	Applications; Examination
§16-108-5 	Application for license
§16-108-6 	Certified employment consultant examination
Subchapter 4 	Statutory Surety Bond
§16-108-7 	Amount of bond
Subchapter 5 	Renewal Applications; Forfeiture
§16-108-8 	Renewal applications; refusal to renew; forfeiture
§16-108-8.1 	Forfeiture
§16-108-8.2 	Restoration
Subchapter 6 	Application Changes
§16-108-9 	Report of changes
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Subchapter 7 	Place of Business
§16-108-10 	Suitability of premises
Subchapter 8 	Advertising
§16-108-11 	Requirements
§16-108-12 	Records
§16-108-13 	Restrictions
Subchapter 9 	Approval of Contracts or Documents
§16-108-14 	Submittal of forms
§16-108-15 	Form approval
§16-108-16 	Contract form and content
Subchapter 10 	Records
§16-108-17 	Job order record
§16-108-18 	Applicant’s record
§16-108-19 	Fee transaction record
§16-108-20 	Investigation record
Subchapter 11 	Requirements to Maintain License
§16-108-21 	Requirements to maintain license
Subchapter 12 	Placement Fees
§16-108-22 	Filing requirements; placement fee schedule
§16-108-23 	Content requirements
§16-108-24 	Size and posting requirements
§16-108-25 	Effective date
Subchapter 13 	Prohibited Practices
§16-108-26 	Prohibited practices
Subchapter 14 	Restrictions
§16-108-27 	Sale of contracts
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Subchapter 15 	Suspension or Revocation of License
§16-108-28 	Cause for suspension or revocation
Subchapter 16 	Administrative Procedures
§16-108-35 	Administrative practice and procedure
SUBCHAPTER 1
GENERAL PROVISIONS
§16-108-1 	Objective. 	This chapter is intended to clarify and implement
chapter 373, Hawaii Revised Statutes, to the end that the provisions thereunder
may be best effectuated. 	[Eff 8/20/81; am and comp 11/26/90] (Auth: 	HRS
§373-19) (Imp: 	HRS §373-19)
§16-108-2 	Definitions. 	As used in this chapter or in chapter 373, HRS:
"Bona fide job order" means a single written or oral request from an
employer for referral of one or more applicants to fill one or more existing or
anticipated job openings.
"Department" means the department of commerce and consumer affairs.
"Employer paid fee" or "employer fee paid" means the total placement fee
that is paid or promised to be paid by an employer to the employment agency
without any limiting conditions or qualifications.
"Employer paid fee agency" means an employment agency that refers
applicants to employer paid fee jobs only.
"Employment agency" as defined in section 373-1, HRS, shall not include
any 	individual, partnership, 	corporation, 	or 	association 	engaged 	in 	a 	labor
contracting service or business where a person is hired as an employee of the
labor contracting service or business and is directed by the service or business to
work at various job sites.
"Permanent employment" means employment lasting more than ninety
calendar days.
"Placement fee" means any money or other valuable consideration charged
or 	paid 	for 	providing 	employment 	information, 	procuring 	employment 	for
applicants, procuring employees for placement with employers upon request, or
any other service except resume writing performed by an employment agency.
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Interest on over due payments and general excise tax charges are not considered
placement fees.
"Temporary employment" means employment lasting ninety calendar days
or less. [Eff 8/20/81; am and comp 11/26/90] (Auth: HRS §373-19) (Imp: HRS
§§373-1, 373-19)
SUBCHAPTER 2
FEES
§16-108-3 	Fees. 	(a) Every application for an employment agency or
principal agent license, employment consultant examination, renewal of a license,
or restoration of a license shall be accompanied by the appropriate fees as
provided in chapter 16-52 by the director.
(b) 	License and examination fees shall not be refundable. [Eff 8/20/81;
am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-3, 373-5)
§16-108-4 	Payment procedure. 	All fees shall be submitted to the
department of commerce and consumer affairs, State of Hawaii. [Eff 8/20/81; am
and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-3, 373-5)
SUBCHAPTER 3
APPLICATIONS; EXAMINATION
§16-108-5 	Application 	for 	license. 	(a) 	Each 	application 	for 	an
employment agency or branch office license shall be made on a form prescribed
by the director and shall contain the following information:
(1) 	The business name of the employment agency, which may not be
identical or similar to that of another employment agency;
(2) 	The place or places of business and the main office address in
Hawaii; and
(3) 	The name of any required principal agent.
(b) 	If the applicant is a corporation, the following shall be shown:
names, titles, and addresses of the officers of the corporation who have managing
responsibility in Hawaii.
(c) 	If applicant is not a corporation, the names and addresses of all
persons who are financially interested either as partners, associates, profit sharers,
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or other persons receiving a share of the net profits from the operation of the
employment agency and the share of said net profit each person is to receive.
(d) 	Questions related to the applicant shall be answered as to each
officer and director of a corporation, or if the applicant is not a corporation, each
person or profit sharer listed in the application, including but not limited to the
following:
(1) 	The person’s business or occupation for the preceding three years;
(2) 	Whether or not the person has ever been associated in any capacity
in the operation or business of an employment agency;
(3) 	Whether or not the person has had any license or permit revoked,
suspended, or refused, or any disciplinary action taken by any
agency of the State; and
(4) 	Whether or not the person has been convicted of a felony or
misdemeanor relating to moral turpitude or honesty in any state.
(e) 	Application, if by an individual, must be signed, giving full name;
if by a partnership, must be signed by all partners; if by a corporation, must be
signed by an officer of the corporation, affixing the seal of the corporation thereto.
(f) 	No employment agency license shall be issued to or maintained by
a partnership, corporation, or association unless it has in its employ, a licensed
principal agent who has passed a certified employment consultant examination.
[Eff 8/20/81; am and comp 11/26/90] (Auth: HRS §373-19) (Imp: HRS §§373-5,
373-6, 373-13)
§16-108-6 	Certified 	employment 	consultant 	examination.
(a) Examinations shall be given at least four times per year by a professional
testing agency.
(b) 	The passing score of the examination shall be seventy per cent.
(c) 	An examination shall not be required when the applicant has
previously passed the written examination within a period of four years prior to
the application or when the application is made within four years from the date
of forfeiture of the license. [Eff and comp 11/26/90] (Auth: HRS §373-19) (Imp:
HRS §373-5)
SUBCHAPTER 4
STATUTORY SURETY BOND
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§16-108-7 	Amount of bond. 	Each employment agency shall obtain and
maintain in force a statutory surety bond with the director in the penal sum of
$5000 that has been issued by a surety company admitted to conduct business in
this state and as provided under section 373-4, HRS. The surety bond shall
specifically provide that the surety shall be held liable for any violation by the
licensee of chapter 373, HRS, as amended, and this chapter. [Eff 8/20/81; am and
comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §373-4)
SUBCHAPTER 5
RENEWAL APPLICATIONS; FORFEITURE
§16-108-8 Renewal applications. (a) All licensees shall complete and file
with the director a renewal application with the required fees by June 30 of each
even-numbered year. If mailed, the postmark will be considered the date of filing.
If a complete renewal application is not filed on or before June 30 of the
even-numbered year, the license shall be automatically forfeited as of June 30 of
that even-numbered year.
(b) 	The director or the director’s authorized representative may refuse
to renew the license if the agency does not maintain a bond in full force and
effect, or if the agency does not have in its employ, a principal agent holding a
current and active license. 	[Eff 8/20/81; am and comp 11/26/90] (Auth: 	HRS
§373-19) (Imp: 	HRS §§373-3, 373-4, 373-5, 373-13.5)
§16-108-8.1 	Forfeiture. 	Any license to conduct an employment agency
business may be forfeited if the licensee fails to timely renew the license, allows
the bond to expire or be cancelled, or fails to employ a required principal agent
holding a current license. [Eff and comp 11/26/90] (Auth: HRS §373-19) (Imp:
HRS §§373-3, 373-5, 373-13.5)
§16-108-8.2 Restoration. A forfeited license may be restored within one
year of the forfeiture upon filing of an application, the surety bond, and submittal
of all fees, including restoration fees. 	[Eff and comp 11/26/90] (Auth: 	HRS
§373-19) (Imp: 	HRS §§373-3, 373-4, 373-5, 373-13.5)
SUBCHAPTER 6
APPLICATION CHANGES
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§16-108-9 	Report of changes. 	Each employment agency or principal
agent shall notify the director in writing of any change of the information
provided on the application or any subsequent information provided to the director
within thirty days of the change. 	[Eff 8/20/81; am and comp 11/26/90] (Auth:
HRS §373-19) (Imp: 	HRS §373-5)
SUBCHAPTER 7
PLACE OF BUSINESS
§16-108-10 	Suitability of premises. 	(a) Where the application is for a
license to operate an employment agency in a place used for the conduct of
another business or in rooms or quarters used for living purposes, the director may
refuse to grant such license, if such refusal would be in the public interest.
(b) 	Illustrative but not limited to the following are the types of
premises which may be considered not in the public interest:
(1) 	Where intoxicating liquors are sold or consumed; or
(2) 	In connection with a pool hall; or
(3) 	In an eating establishment; or
(4) 	In a private residence; or
(5) 	In connection with a loan company or collection agency. 	[Eff
8/20/81; comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS
§373-6)
SUBCHAPTER 8
ADVERTISING
§16-108-11 	Requirements. 	Each employment agency which advertises
through newspapers or other media shall indicate its name in the advertisement.
[Eff 8/20/81; comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §373-11)
§16-108-12 	Records. 	Each employment agency shall maintain a record
of all newspaper or other printed advertisements initiated by the agency for at
least two years. 	The record shall show the date and publication in which the
advertisement appeared and the job order number of each job advertised. 	[Eff
8/20/81; comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §373-9)
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§16-108-13 	Restrictions. 	(a) Advertisements shall not contain both
employer paid fee job openings and other job openings which are not employer
paid fee jobs in the same listing. 	"Employer Paid Fee" jobs shall be listed
separately from jobs designated as "Applicant Pays Fee" jobs.
(b) 	Advertisements shall not include any jobs as "Fee Paid", "Employer
Paid Fee" or other statements when payment of the fee is based on meeting certain
conditions such as an applicant remaining on the job for a specified period of
time.
(c) 	Advertisements with "100% Free" or "All Free" or similar wording
as headings are prohibited unless the agency is an employer paid fee agency and
exclusively handling fee paid jobs.
(d) 	No salary amount shall appear in an advertisement except one
which appears in the actual job order from the employer. If the top salary range
is to appear in an advertisement, it must be preceded by the word "to". 	[Eff
8/20/81; am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: HRS §373-11)
SUBCHAPTER 9
APPROVAL OF CONTRACTS OR DOCUMENTS
§16-108-14 Submittal of forms. (a) Each employment agency shall submit
two copies of its contract with an applicant to the director, and approval shall be
indicated by an endorsement thereon by the director or the director’s authorized
representative. One copy shall be returned to the employment agency to be kept
as part of its record. 	Approval shall not be withheld unless such proposed
instrument, contract, or document is vague, misrepresentative, unfair, oppressive,
or contains provisions which violate a law or does not satisfy the requirements for
contract form and content under section 16-108-16.
(b) 	Employer paid fee agencies in which employers promise to pay fees
without any limiting conditions or qualifications shall so inform the director and
shall not collect any registration or placement fees from any applicant. 	[Eff
8/20/81; am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-10,
373-11)
§16-108-15 	Form approval. 	No document or contract form which an
employment 	agency 	shall 	require 	an 	applicant 	or 	the 	applicant’s 	legal
representative to execute or become a party to shall be used unless the form and
contents thereof have been approved by the director or the director’s authorized
representative. [Eff 8/20/81; am and comp 11/26/90] (Auth: HRS §373-19) (Imp:
HRS §§373-10, 373-11)
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§16-108-16 	Contract form and content. 	(a) Any contract between an
applicant and the employment agency shall be in writing and shall contain
statements of the following matters and requirements:
(1) 	In bold print enclosed within a conspicuous border the gross
amount of the estimated fee charged and the time period on which
the fee is based;
(2) 	A statement indicating that the fees charged are in accordance with
the fees filed with the department and that a listing of the fees
charged to applicants by all commercial employment agencies
licensed in the State is available for public inspection;
(3) 	A prominently displayed statement that no fee shall be paid until
the 	job 	applicant 	obtains 	employment 	and 	receives 	the 	first
paycheck, provided that this shall not apply to employer fee paid
placements;
(4) 	The name and license number of the commercial employment
agency;
(5) 	A statement that the applicant has the right to have the agency
produce for review a copy of the law and rules regulating the
practices of commercial employment agencies;
(6) 	A statement that the agency shall be entitled to charge and collect
a placement fee from the applicant if the applicant accepts within
ninety calendar days from the date of referral the position for
which the applicant was referred by the employment agency or the
applicant accepts any position other than that for which the
applicant was referred by the agency to that employer within thirty
calendar days of the referral;
(7) 	A 	statement 	that 	refunds 	shall 	be 	made 	promptly 	by 	the
employment agency but no later than ten working days from the
date the request was made, and that the refund shall be mailed if
it is so requested; and
(8) 	A statement that no registration fee or advance payment for
services to be rendered in finding employment will be charged or
collected.
(b) 	A copy of the contract shall be provided to the applicant. 	[Eff
8/20/81; am and comp 11/26/90] (Auth: 	HRS §§373-10, 373-19) (Imp: 	HRS
§§373-10, 373-12)
SUBCHAPTER 10
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RECORDS
§16-108-17 	Job order record. 	Each employment agency shall keep a
complete 	record 	in 	the 	English 	language 	of 	all 	job 	orders 	received 	from
prospective employers. This record, which shall be called the "Job Order Record",
shall contain the following: 	date when the job order was received; name and
address of the employer seeking the services of an employee; name of the person
placing the job order; type of job offered; occupational qualifications; salary or
rate of pay if known; person whom the job applicant is to report to for the
position; probable duration of the job; the job order number; and names of
applicants referred to the job. [Eff 8/20/81; am and comp 11/26/90] (Auth: HRS
§373-19) (Imp: 	HRS §§373-9, 373-11)
§16-108-18 Applicant’s record. Each employment agency shall also keep
a complete record in the English language of each applicant to whom employment
is offered or promised and of each referral by the employment agency to secure
a job or for an interview for a job. 	This record which shall be called the
"Applicant’s Record", shall contain the following: full name of the applicant; date
when the applicant was referred for an interview in response to a job order; name
of the prospective employer; job order number; and results of the referral. 	[Eff
8/20/81; am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-9,
373-11)
§16-108-19 Fee transaction record. Each employment agency shall issue
a receipt to the applicant or the payer for any fee collected which shall contain the
following 	information: 	receipt 	number 	consecutively 	stated; 	date 	of 	each
transaction; total gross amount of the applicant’s actual earnings on which the fee
is based; name of the applicant; name of the person making the remittance;
amount paid; and a designation indicating whether the amount paid is in full or
on account and, if so, the balance due. 	This receipt shall also be used for
payment of any refund to the applicant or payer and shall include the date,
amount, and to whom refunded. Each employment agency shall keep a record of
all receipts. 	This record shall be called the "Fee Transaction Record". 	[Eff
8/20/81; comp 11/26/90] (Auth: HRS §373-19) (Imp: 	HRS §§373-9, 373-10)
§16-108-20 	Investigation record. 	Each employment agency shall keep a
record 	of 	any 	and 	all 	investigations 	of 	the 	nature 	of 	the 	employment 	or
engagement and the duties thereof and reputation of the employer which the
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agency is required to make under the provisions of section 373-11, HRS. 	[Eff
8/20/81; comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-9, 373-11)
SUBCHAPTER 11
REQUIREMENTS TO MAINTAIN LICENSE
§16-108-21 	Requirements to maintain license. 	(a) In addition to the
requirements to maintain a bond pursuant to section 373-13.5, HRS, employment
agencies shall have in their employ a principal agent holding a current and active
license.
(b) 	Failure to employ a required principal agent holding a current and
active license shall cause the automatic suspension of the employment agency’s
license as of the date the principal agent is no longer employed.
(c) 	Failure to reinstate the suspended license by employment of another
principal agent within sixty days of the suspension shall cause the automatic
forfeiture of the employment agency’s license. 	[Eff 8/20/81; am and comp
11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-5, 373-13.5)
SUBCHAPTER 12
PLACEMENT FEES
§16-108-22 	Filing requirements; placement fee schedule. 	(a) Each
employment agency shall file with the director a schedule, which may not be
changed more than once during each calendar year, of its placement fees to be
charged applicants.
(b) 	Placement fee schedules shall be filed by January 31 of each
calendar year.
(c) 	Agencies who fail to file their placement fees by January 31 shall
not be allowed to amend its placement fees until January 31 of the following year.
(d) 	Agencies may not charge or collect placement fee until the fees are
approved by the director or the director’s authorized representative.
(e) 	Agencies who have filed as an employer paid agency need not
submit annual fee schedules unless the agency elects to charge or collect
placement fees from applicants.
(f) 	The director or the director’s authorized representative shall compile
a listing of the fees charged by all commercial employment agents and shall make
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the list available to the general public. 	[Eff 8/20/81; am and comp 11/26/90]
(Auth: 	HRS §373-19) (Imp: 	HRS §§373-10, 373-11)
§16-108-23 	Content requirements. 	(a) The schedule of placement fees
shall include a statement that the agency shall be entitled to charge and collect a
placement fee from the applicant provided that the applicant accepts within ninety
calendar days from the date of referral the position for which the applicant was
referred or the applicant accepts any position, other than that for which the
applicant was referred, with the employer within thirty days of the referral.
(b) 	The schedule of placement fees shall include a statement that
refunds shall be made promptly by the employment agency but no later than ten
working days from the date the request is made by the person who has paid the
fee and, further, that the refund shall be mailed to the person if it is so requested.
(c) 	An employer paid fee agency shall submit a fee schedule which
states: 	"All fees paid by employers without any conditions or qualifications."
[Eff 8/20/81; am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS
§§373-10, 373-11, 373-12)
§16-108-24 	Size and posting requirements. 	The schedule of placement
fees shall be printed or lettered in a size not less than eighteen printing points and
the printing or lettering shall be in a legible style with adequate separation
between lines. 	The effective date shall appear on all copies of the schedule and
a copy of the approved fee schedule shall be posted in a conspicuous place within
each agency including branch offices. 	[Eff 8/20/81; am and comp 11/26/90]
(Auth: 	HRS §373-19) (Imp: 	HRS §§373-8, 373-10)
§16-108-25 	Effective date. 	The schedule, or change of schedule shall
become effective upon approval of the director or the director’s authorized
representative provided that the director or the director’s authorized representative
shall approve or disapprove within sixty days after the schedule, or change of
schedule, is filed. 	[Eff 8/20/81; am and comp 11/26/90] (Auth: 	HRS §373-19)
(Imp: 	HRS §373-10)
SUBCHAPTER 13
PROHIBITED PRACTICES
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§16-108-26 Prohibited practices. (a) No employment agency shall charge
or collect any registration fee or advance payment for providing employment
information, procuring employment for applicants, or procuring employees for
placement with employers, or any fee which is greater than the applicable fee
listed in its schedule of placement fees unless of benefit to and agreed upon, by
full signature, in writing by the applicant.
(b) 	No employment agency shall charge or collect from an applicant
a fee for placement within the 	employment agency.
(c) 	No employment agency shall charge or collect from an applicant
any fee when placement is made with an employer, an agent, spouse, or person
who has a financial interest in the employment agency.
(d) 	No employment agency shall charge or collect from an applicant
any fee or portion of a fee in an "Employer Paid Fee" placement. 	[Eff 8/20/81;
am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS §§373-10, 373-11)
SUBCHAPTER 14
RESTRICTIONS
§16-108-27 	Sale of contracts. 	No employment agency shall sell any
employment contract of an applicant to a finance company or other purchaser until
after the temporary employment shall have run or permanent employment shall
have been established. [Eff 8/20/81; comp 11/26/90] (Auth: HRS §373-19) (Imp:
HRS §373-19)
SUBCHAPTER 15
SUSPENSION OR REVOCATION OF LICENSE
§16-108-28 	Cause for suspension or revocation. 	The director may
suspend or revoke the license of an employment agency for willful violation of
the provisions of chapter 373, HRS, or any rules promulgated pursuant thereto,
after a hearing conducted pursuant to chapter 91, HRS, and the uniform rules of
administrative procedure of the department of commerce and consumer affairs.
[Eff 8/20/81; am and comp 11/26/90] (Auth: 	HRS §373-19) (Imp: 	HRS
§§373-11, 373-12, 373-13, 373-13.5, 373-14, 373-14.3)
SUBCHAPTER 16
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ADMINISTRATIVE PROCEDURES
§16-108-35 Administrative practice and procedure. The rules of practice
and procedure for commercial employment agencies shall be as provided in
chapter 16-201, the rules of practice and procedure of the department of commerce
and consumer affairs which are incorporated by reference and made a part of this
chapter. [Eff and comp 11/26/90] (Auth: HRS §§91-2, 91-3, 91-8, 91-9, 373-19)
(Imp: 	§§91-2, 91-9, 373-14.3)
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Amendments to and compilation of chapter 16-108, Hawaii Administrative
Rules, 	on 	the 	Summary 	page 	dated 	October 	1, 	1990, 	were 	adopted 	on
October 1, 1990, following a public hearing held on September 6, 1990, after
public notices were given in the Honolulu Star- Bulletin, Honolulu Advertiser,
Maui News, West Hawaii Today, Hawaii Tribune-Herald on August 12, 1990, and
the Kauai Times on August 10, 1990.
They shall take effect ten days after filing with the Office of the Lieutenant
Governor.
/s/ Robert A. Alm
ROBERT A. ALM
Director of Commerce and Consumer Affairs
APPROVED AS TO FORM: 	Date 10/15/90
/s/ Winfred K. T. Pong
Deputy Attorney General
APPROVED: 	Date 11/14/90
John Waihee
JOHN WAIHEE
Governor of Hawaii
November 15, 1990
Filed
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DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
Amendment and Compilation of Chapter 16-108
Hawaii Administrative Rules
October 1, 1990
SUMMARY
1. 	Title amended.
2. 	§§16-108-1 through 16-108-5 are amended.
3. 	§16-108-6 is added.
4. 	§§16-108-7 and 16-108-8 are amended.
5. 	§§16-108-8.1 and 16-108-8.2 are added.
6. 	§16-108-9 is amended.
7. 	§§16-108-13 through 16-108-18 are amended.
8. 	§§16-108-21 through 16-108-26 are amended.
9. 	§16-108-28 is amended.
10. 	A new subchapter 16 (§16-108-35) is added.
11. 	Chapter 108 is compiled.