§383-29 - Eligibility for benefits.

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

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

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

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

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

(A) If benefits have been paid with respect
thereto;

(B) Unless the individual was eligible for
benefits 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 year
begins:

(A) On or after January 2, 1966, but prior to
October 1, 1989, the individual has had during the individual's base period a
total of fourteen or more weeks of employment, as defined in section 383-1, and
has been paid wages for insured work during the individual's base period in an
amount equal to at least thirty times the individual's weekly benefit amount as
determined 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 in
section 383-2, or pursuant to an election under section 383-77 prior to January
1, 1978, at any time during the one-year period ending December 31, 1975; and

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

(B) On and after October 1, 1989, to January
4, 1992, the individual has been employed, as defined in section 383-2, and has
been paid wages for insured work during the individual's base period in an
amount equal to not less than thirty times the individual's weekly benefit
amount, as determined under section 383-22(b), and the individual has been paid
wages for insured work during at least two quarters of the individual's base
period; provided that no otherwise eligible individual who established a prior
benefit year under this chapter or the unemployment compensation law of any
other state, shall be eligible to receive benefits in a succeeding benefit year
until, during the period following the beginning of the prior benefit year,
that individual worked in covered employment for which wages were paid in an
amount equal to at least five times the weekly benefit amount established for
that individual in the succeeding benefit year; and

(C) After January 4, 1992, the individual has
been employed, as defined in section 383-2, and has been paid wages for insured
work during the individual's base period in an amount equal to not less than
twenty-six times the individual's weekly benefit amount, as determined under
section 383-22(b), and the individual has been paid wages for insured work
during at least two quarters of the individual's base period; provided that no
otherwise eligible individual who established a prior benefit year under this
chapter or the unemployment compensation law of any other state, shall be
eligible to receive benefits in a succeeding benefit year until, during the
period following the beginning of the prior benefit year, that individual
worked in covered employment for which wages were paid in an amount equal to at
least five times the weekly benefit amount established for that individual in
the succeeding benefit year.

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

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

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

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

(b)(1) Benefits based on service in an instructional,
research, or principal administrative capacity in an institution of education
shall not be paid to an individual for any week of unemployment which begins
during the period between two successive academic years, or during a similar
period between two regular terms, whether or not successive, or during a period
of paid sabbatical leave provided for in the individual's contract, if the
individual performed such services in the first of such academic years or terms
and if there is a contract or a reasonable assurance that such individual will
perform services in any such capacity for any institution of education in the
second of such academic years or terms.

(2) Benefits based on service in any other capacity
for any educational institution shall not be paid to any individual for any
week which commences during a period between two successive academic years or
terms if such individual performs such services in the first of such academic
years or terms and there is a reasonable assurance that such individual will
perform such services in the second of such academic years or terms, except
that, if compensation is denied to any individual under this subsection and
such individual was not offered an opportunity to perform such services for the
educational institution for the second of such academic years or terms, such
individual shall be entitled to a retroactive payment of compensation for each
week for which the individual filed a timely claim for compensation and for
which 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 institution
or based on other services in any educational institution shall not be paid to
any person for any week of unemployment which begins during an established and
customary vacation or recess for a holiday if the person performs service in
the period immediately preceding the vacation or recess and there is reasonable
assurance that the person will be provided employment immediately succeeding
the vacation or recess.

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

(c) Benefits based on services, substantially
all of which consists of participating or preparing or training to participate
in sports or athletic events, shall not be paid to an individual for any week
of unemployment which begins during the period between two successive sport
seasons (or similar periods) if the individual performed such services in the
first of such seasons (or similar periods) and there is a reasonable assurance
that the individual will perform such services in the second of such seasons
(or similar periods).

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

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

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

(2) All of the following conditions apply:

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

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

(D) The claimant has the required
qualifications and aptitudes to complete the course successfully. [L 1939, c
219, §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, c
53, §1; am L 1977, c 148, §5; am L 1981, c 172, §1; am L 1984, c 201, §1; gen
ch 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, c
219, §2; am L 2009, c 170, §4]

Case Notes

"Availability for work" - picket duty in itself
does not affect availability, nor does refusal of own job. 46 H. 140, 377 P.2d
715.

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

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

Registration waiver for strikers pursuant to agency rule was
valid waiver "by regulation"; waiver of work registration not
preempted by federal law. 68 H. 316, 713 P.2d 943.

Construing §383-30 and this section together, in order to
requalify for unemployment insurance benefits after a voluntary separation
without good cause, an individual must work for a subsequent employer who is
subject to this chapter and be paid wages from the subsequent employer in an
amount sufficient to meet the requalification earnings threshold. 94 H. 262
(App.), 12 P.3d 362.

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

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

Subsection (b)(1) was written so that when, based on
department of education wages, a regular teacher or a substitute teacher
applies for unemployment benefit payments for the period after the end of one
school year and the beginning of the succeeding school year, the merits of the
application will be decided without any consideration of the facts that (a)
some schools have a summer school term, and (b) some regular teachers (and
possibly 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.2d
932.