§383-29 - Eligibility for benefits.

§383-29 Eligibility for benefits. (a) [Repeal and reenactment on July 1, 2012. L 2009, c 170, §7.] Anunemployed individual shall be eligible to receive benefits with respect to anyweek only if the department finds that:

(1) The individual has made a claim for benefits withrespect to that week in accordance with rules the department may prescribe andwith section 383-29.7 for partially unemployed individuals;

(2) The individual has registered for work, asdefined in section 383-1, and thereafter continued to report, at an employmentoffice in accordance with rules the department may prescribe, except that thedepartment, by rule, may waive or alter either or both of the requirements ofthis paragraph for partially unemployed individuals pursuant to section 383-29.8,individuals attached to regular jobs, and other types of cases or situationswith respect to which it finds that compliance with those requirements would beoppressive, or would be inconsistent with the purpose of this chapter; providedthat no rule shall conflict with section 383-21;

(3) The individual is able to work and is availablefor work; provided that no claimant shall be considered ineligible with respectto any week of unemployment for failure to comply with this paragraph if thefailure is due to an illness or disability, as evidenced by a physician'scertificate, which occurs during an uninterrupted period of unemployment withrespect to which benefits are claimed and no work which would have beensuitable prior to the beginning of the illness and disability has been offeredthe claimant;

(4) The individual has been unemployed for a waitingperiod of one week within the individual's benefit year. No week shall becounted as a waiting period:

(A) If benefits have been paid with respectthereto;

(B) Unless the individual was eligible forbenefits with respect thereto as provided in this section and section 383-30,except for the requirements of this paragraph;

(5) In the case of an individual whose benefit yearbegins:

(A) On or after January 2, 1966, but prior toOctober 1, 1989, the individual has had during the individual's base period atotal of fourteen or more weeks of employment, as defined in section 383-1, andhas been paid wages for insured work during the individual's base period in anamount equal to at least thirty times the individual's weekly benefit amount asdetermined under section 383-22(b). For the purposes of this subparagraph,wages for insured work shall include wages paid for services:

(i) Which were not employment, as defined insection 383-2, or pursuant to an election under section 383-77 prior to January1, 1978, at any time during the one-year period ending December 31, 1975; and

(ii) Which are agricultural labor, as defined insection 383-9 except service excluded under section [383-7(a)(1)], or aredomestic service except service excluded under section [383-7(a)(2)]; except tothe extent that assistance under Title II of the Emergency Jobs andUnemployment Assistance Act of 1974 was paid on the basis of those services;

(B) On and after October 1, 1989, to January4, 1992, the individual has been employed, as defined in section 383-2, and hasbeen paid wages for insured work during the individual's base period in anamount equal to not less than thirty times the individual's weekly benefitamount, as determined under section 383-22(b), and the individual has been paidwages for insured work during at least two quarters of the individual's baseperiod; provided that no otherwise eligible individual who established a priorbenefit year under this chapter or the unemployment compensation law of anyother state, shall be eligible to receive benefits in a succeeding benefit yearuntil, during the period following the beginning of the prior benefit year,that individual worked in covered employment for which wages were paid in anamount equal to at least five times the weekly benefit amount established forthat individual in the succeeding benefit year; and

(C) After January 4, 1992, the individual hasbeen employed, as defined in section 383-2, and has been paid wages for insuredwork during the individual's base period in an amount equal to not less thantwenty-six times the individual's weekly benefit amount, as determined undersection 383-22(b), and the individual has been paid wages for insured workduring at least two quarters of the individual's base period; provided that nootherwise eligible individual who established a prior benefit year under thischapter or the unemployment compensation law of any other state, shall beeligible to receive benefits in a succeeding benefit year until, during theperiod following the beginning of the prior benefit year, that individualworked in covered employment for which wages were paid in an amount equal to atleast five times the weekly benefit amount established for that individual inthe succeeding benefit year.

For purposes of this paragraph, wages and weeksof employment shall be counted for benefit purposes with respect to any benefityear only if the benefit year begins subsequent to the dates on which theemploying unit by which the wages or other remuneration, as provided in thedefinition of weeks of employment in section 383-1, were paid has satisfied theconditions of section 383-1 with respect to becoming an employer.

Effective for benefit years beginning January1, 2004, and thereafter, if an individual fails to establish a valid claim forunemployment insurance benefits under this paragraph, the department shall makea redetermination of entitlement based upon the alternative base period, asdefined in section 383-1; provided further that the individual shall satisfythe conditions of section 383-29(a)(5) that apply to claims filed using thebase period, as defined in section 383-1, and the establishment of claims usingthe alternative base period shall be subject to the terms and conditions ofsections 383-33 and 383-94; and

(6) Effective November 24, 1994, an individual whohas been referred to reemployment services pursuant to the profiling systemunder section 383-92.5 shall participate in those services or in similarservices. The individual may not be required to participate in reemploymentservices if the department determines the individual has completed thoseservices, or there is justifiable cause for the claimant's failure toparticipate in those services.

For the purposes of this subsection, employmentand wages used to establish a benefit year shall not thereafter be reused toestablish another benefit year.

(b)(1) Benefits based on service in an instructional,research, or principal administrative capacity in an institution of educationshall not be paid to an individual for any week of unemployment which beginsduring the period between two successive academic years, or during a similarperiod between two regular terms, whether or not successive, or during a periodof paid sabbatical leave provided for in the individual's contract, if theindividual performed such services in the first of such academic years or termsand if there is a contract or a reasonable assurance that such individual willperform services in any such capacity for any institution of education in thesecond of such academic years or terms.

(2) Benefits based on service in any other capacityfor any educational institution shall not be paid to any individual for anyweek which commences during a period between two successive academic years orterms if such individual performs such services in the first of such academicyears or terms and there is a reasonable assurance that such individual willperform such services in the second of such academic years or terms, exceptthat, if compensation is denied to any individual under this subsection andsuch individual was not offered an opportunity to perform such services for theeducational institution for the second of such academic years or terms, suchindividual shall be entitled to a retroactive payment of compensation for eachweek for which the individual filed a timely claim for compensation and forwhich compensation was denied solely by reason of this clause.

(3) Benefits based on service in any instructional,research, or principal administrative capacity in any educational institutionor based on other services in any educational institution shall not be paid toany person for any week of unemployment which begins during an established andcustomary vacation or recess for a holiday if the person performs service inthe period immediately preceding the vacation or recess and there is reasonableassurance that the person will be provided employment immediately succeedingthe vacation or recess.

(4) The provisions of paragraphs (1), (2), and (3)apply also to services performed while employed by a governmental agency whichis established and operated exclusively for the purpose of providing suchservices to one or more educational institutions.

(c) Benefits based on services, substantiallyall of which consists of participating or preparing or training to participatein sports or athletic events, shall not be paid to an individual for any weekof unemployment which begins during the period between two successive sportseasons (or similar periods) if the individual performed such services in thefirst of such seasons (or similar periods) and there is a reasonable assurancethat the individual will perform such services in the second of such seasons(or similar periods).

(d) Benefits shall not be paid on the basis ofservices performed by an alien unless the alien is an individual who waslawfully admitted for permanent residence at the time those services wereperformed, was lawfully present for purposes of performing those services, orotherwise was permanently residing in the United States under color of law atthe time those services were performed (including an alien who was lawfullypresent in the United States as a result of the application of the provisionsof section 203(a)(7) or section 212(d)(5) of the Immigration and NationalityAct). Any data or information required of individuals applying for benefits todetermine whether benefits are not payable to them because of their alienstatus shall be uniformly required from all applicants for benefits. In thecase of an individual whose application for benefits would otherwise beapproved, no determination that benefits to such individual are not payablebecause of the individual's alien status shall be made except upon apreponderance of the evidence.

(e) Notwithstanding any provisions of thischapter to the contrary, a claimant shall not be denied benefits because of theclaimant's regular attendance at a vocational training or retraining coursewhich the director has approved and continues from time to time to approve forthe claimant. The director may approve such course for a claimant only if:

(1) The training activity is authorized under TitlesI, II, III, and IV (except on-the-job training) of the Job Partnership TrainingAct (P.L. 97-300); or

(2) All of the following conditions apply:

(A) Reasonable employment opportunities forwhich the claimant is fitted by training and experience do not exist in thelocality or are severely curtailed;

(B) The training course relates to anoccupation or skill for which there are, or are expected to be in the immediatefuture, reasonable employment opportunities in the locality;

(D) The claimant has the requiredqualifications and aptitudes to complete the course successfully. [L 1939, c219, §4; am L 1941, c 304, §1, subs 16; am L 1943, c 160, §1, subs 5; RL 1945,§4230; am L 1953, c 22, §1(1), (2); RL 1955, §93-28; am L Sp 1959 2d, c 1, §27;am L 1961, c 94, §1 and c 114, §1(c); am L 1963, c 174, §4; am L 1964, c 61,§4; am L 1965, c 250, §1(c); HRS §383-29; am L 1971, c 187, §4; am L 1973, c53, §1; am L 1977, c 148, §5; am L 1981, c 172, §1; am L 1984, c 201, §1; gench 1985; am L 1986, c 32, §2 and c 162, §3; am L 1990, c 25, §1 and c 88, §1;am L 1991, c 68, §5; am L 1993, c 275, §1; am L 1994, c 112, §3; am L 2003, c219, §2; am L 2009, c 170, §4]

Case Notes

"Availability for work" - picket duty in itselfdoes not affect availability, nor does refusal of own job. 46 H. 140, 377 P.2d715.

Subsection (b) creates limited exception to "any week ofunemployment". 56 H. 590, 546 P.2d 1.

Adoption of circuit court decisions for use by departmentalreferees without following requirements of chapter 91 appears to be contrary tointent and purposes of HAPA. 62 H. 286, 614 P.2d 380.

Registration waiver for strikers pursuant to agency rule wasvalid waiver "by regulation"; waiver of work registration notpreempted by federal law. 68 H. 316, 713 P.2d 943.

Construing §383-30 and this section together, in order torequalify for unemployment insurance benefits after a voluntary separationwithout good cause, an individual must work for a subsequent employer who issubject to this chapter and be paid wages from the subsequent employer in anamount sufficient to meet the requalification earnings threshold. 94 H. 262(App.), 12 P.3d 362.

A regular teacher who teaches during the regular schoolacademic year or term is not eligible for unemployment benefits during thesummer break even when one or more summer school teaching positions was or wereavailable and unsuccessfully sought; for purposes of the Hawaii employmentsecurity law, summer school teaching positions are unrelated to, totallyseparate from, and unconnected with teaching positions during the regularschool academic year or term. 104 H. 536 (App.), 92 P.3d 1046.

A substitute teacher who teaches during the regular schoolyear is not eligible for unemployment benefits during the summer break evenwhen one or more summer school substitute teaching positions was or wereavailable and unsuccessfully sought; for purposes of the Hawaii employmentsecurity law, summer school substitute teaching positions are unrelated to,totally separate from, and unconnected with substitute teaching positionsduring the regular school academic year or term. 104 H. 536 (App.), 92 P.3d1046.

Subsection (b)(1) was written so that when, based ondepartment of education wages, a regular teacher or a substitute teacherapplies for unemployment benefit payments for the period after the end of oneschool year and the beginning of the succeeding school year, the merits of theapplication will be decided without any consideration of the facts that (a)some schools have a summer school term, and (b) some regular teachers (andpossibly some substitute teachers) are summer school teachers. 104 H. 536 (App.),92 P.3d 1046.

Cited: 44 H. 93, 94, 352 P.2d 856; 46 H. 164, 173, 377 P.2d932.