§383-30  Disqualification for benefits. An individual shall be disqualified for benefits:

(1)  Voluntary separation.  For any week prior toOctober 1, 1989, in which the individual has left work voluntarily withoutgood cause, and continuing until the individual has, subsequent to the week inwhich the voluntary separation occurred, been employed for at least fiveconsecutive weeks of employment.  For the purposes of this paragraph,"weeks of employment" means all those weeks within each of which theindividual has performed services in employment for not less than two days orfour hours per week, for one or more employers, whether or not such employersare subject to this chapter.  For any week beginning on and afterOctober 1, 1989, in which the individual has left the individual's workvoluntarily without good cause, and continuing until the individual has,subsequent to the week in which the voluntary separation occurred, been paidwages in covered employment equal to not less than five times the individual'sweekly benefit amount as determined under section 383-22(b).

An owner-employee of a corporation whobrings about the owner-employee's unemployment by divesting ownership, leasingthe business interest, terminating the business, or by other similar actionswhere the owner-employee is the party initiating termination of the employmentrelationship, has voluntarily left employment.

(2)  Discharge or suspension for misconduct.  For anyweek prior to October 1, 1989, in which the individual has been dischargedfor misconduct connected with work, and continuing until the individual has,subsequent to the week in which the discharge occurred, been employed for atleast five consecutive weeks of employment.  For the week in which theindividual has been suspended for misconduct connected with work and for notless than one or more than four consecutive weeks of unemployment whichimmediately follow such week, as determined in each case in accordance with theseriousness of the misconduct.  For the purposes of this paragraph, "weeksof employment" means all those weeks within each of which the individualhas performed services in employment for not less than two days or four hoursper week, for one or more employers, whether or not such employers are subject tothis chapter.  For any week beginning on and after October 1, 1989, inwhich the individual has been discharged for misconduct connected with work,and until the individual has, subsequent to the week in which the dischargeoccurred, been paid wages in covered employment equal to not less than fivetimes the individual's weekly benefit amount as determined under section383-22(b).

(3)  Failure to apply for work, etc.  For any weekprior to October 1, 1989, in which the individual failed, without good cause,either to apply for available, suitable work when so directed by the employmentoffice or any duly authorized representative of the department of labor andindustrial relations, or to accept suitable work when offered and continuinguntil the individual has, subsequent to the week in which the failure occurred,been employed for at least five consecutive weeks of employment.  For thepurposes of this paragraph, "weeks of employment" means all thoseweeks within each of which the individual has performed services in employmentfor not less than two days or four hours per week, for one or more employers,whether or not such employers are subject to this chapter.  For any weekbeginning on and after October 1, 1989, in which the individual failed, withoutgood cause, either to apply for available, suitable work when so directed bythe employment office or any duly authorized representative of the departmentof labor and industrial relations, or to accept suitable work when offereduntil the individual has, subsequent to the week in which the failure occurred,been paid wages in covered employment equal to not less than five times theindividual's weekly benefit amount as determined under section 383-22(b).

(A)  In determining whether or not any work issuitable for an individual there shall be considered among other factors and inaddition to those enumerated in paragraph (3)(B), the degree of risk involvedto the individual's health, safety, and morals, the individual's physicalfitness and prior training, the individual's experience and prior earnings, thelength of unemployment, the individual's prospects for obtaining work in theindividual's customary occupation, the distance of available work from theindividual's residence, and prospects for obtaining local work.  The samefactors so far as applicable shall be considered in determining the existenceof good cause for an individual's voluntarily leaving work under paragraph (1).

(B)  Notwithstanding any other provisions ofthis chapter, no work shall be deemed suitable and benefits shall not be deniedunder this chapter to any otherwise eligible individual for refusing to acceptnew work under any of the following conditions:

(i)  If the position offered is vacant duedirectly to a strike, lockout, or other labor dispute;

(ii)  If the wages, hours, or other conditions ofthe work offered are substantially less favorable to the individual than thoseprevailing for similar work in the locality;

(iii)  If as a condition of being employed theindividual would be required to join a company union or to resign from orrefrain from joining any bona fide labor organization.

(4)  Labor dispute.  For any week with respect towhich it is found that unemployment is due to a stoppage of work which existsbecause of a labor dispute at the factory, establishment, or other premises atwhich the individual is or was last employed; provided that this paragraphshall not apply if it is shown that:

(A)  The individual is not participating in ordirectly interested in the labor dispute which caused the stoppage of work; and

(B)  The individual does not belong to a gradeor class of workers of which, immediately before the commencement of thestoppage, there were members employed at the premises at which the stoppageoccurs, any of whom are participating in or directly interested in the dispute;provided that if in any case separate branches of work, which are commonlyconducted as separate businesses in separate premises, are conducted inseparate departments of the same premises, each such department shall, for thepurpose of this paragraph, be deemed to be a separate factory, establishment,or other premises.

(5)  If the department finds that the individual haswithin the twenty-four calendar months immediately preceding any week ofunemployment made a false statement or representation of a material factknowing it to be false or knowingly failed to disclose a material fact toobtain any benefits not due under this chapter, the individual shall bedisqualified for benefits beginning with the week in which the department makesthe determination and for each consecutive week during the current andsubsequent twenty-four calendar months immediately following suchdetermination, and such individual shall not be entitled to any benefit underthis chapter for the duration of such period; provided that no disqualificationshall be imposed if proceedings have been undertaken against the individualunder section 383-141.

(6)  Other unemployment benefits.  For any week orpart of a week with respect to which the individual has received or is seekingunemployment benefits under any other employment security law, but thisparagraph shall not apply (A) if the appropriate agency finally determines thatthe individual is not entitled to benefits under such other law, or (B) ifbenefits are payable to the individual under an act of Congress which has asits purpose the supplementation of unemployment benefits under a state law. [L1939, c 219, §5; am L 1941, c 304, §1, subs 17; RL 1945, §4231; am L Sp 1949, c13, §1; am L 1951, c 195, §1(5); am L 1953, c 22, §1(1), (6); am L 1955, c 80,§1(a), (b); RL 1955, §93-29; am L 1957, c 74, §2(1); am L 1959, c 232, §3; am LSp 1959 2d, c 1, §27; HRS §383-30; am L 1973, c 75, §1; am L 1976, c 157, §2; amL 1978, c 198, §1; am L 1982, c 20, §1; gen ch 1985; am L 1986, c 32, §3 and c162, §4]

 

Law Journals and Reviews

 

  Commentary on Selected Employment and Labor Law DecisionsUnder the Lum Court.  14 UH L. Rev. 423.

 

Case Notes

 

  Suitable work--refusal to return to own job during disputedoes not disqualify.  46 H. 140, 377 P.2d 715.  Voluntary separation--striking,in itself does not disqualify.  Id.  "Left his work voluntarily" asused in §§383-30(1) and 383-65 has same meaning.  46 H. 164, 377 P.2d 932.

  "Discharge for misconduct" does not includesuspension for misconduct.  54 H. 563, 512 P.2d 1.

  Under paragraph (4) of this section labor dispute--includesdispute over employee representation resulting in organizational strike. Stoppage of work--substantial curtailment of employer's operations.  46 H. 140,377 P.2d 715.  Stoppage of work.  50 H. 225, 437 P.2d 317; 68 H. 316, 713 P.2d943.  "Stoppage of work" means substantial curtailment of businessactivities at employer's establishment, rather than unemployment of strikingemployee; "establishment," construed.  53 H. 185, 489 P.2d 1397.

  Whether Hawaii's scheme of paying benefits to strikingemployees impermissibly intrudes in the collective bargaining process coveredby federal statutes.  378 F. Supp. 791.

  Paragraph (4) not pre-empted by National Labor Relations Act.614 F.2d 1197.

  Before employee can be disqualified for failure to"accept suitable work when offered him," there must have been atender of a specific and bona fide offer of work.  58 H. 265, 567 P.2d 1233.

  Findings of fact by department if supported by substantialevidence are conclusive.  58 H. 265, 567 P.2d 1233.

  Where disqualification is claimed, employer has burden ofproof.  58 H. 265, 567 P.2d 1233.

  Retiring worker did not quit voluntarily without good cause.65 H. 146, 648 P.2d 1107.

  Violation of traffic code by crossing solid line not"misconduct" under circumstances.  67 H. 212, 685 P.2d 794.

  Does not prohibit payment of benefits unless claimant becameunemployed as a result of discharge for misconduct.  68 H. 19, 704 P.2d 881.

  Disqualification for benefits on basis of labor disputeincludes stoppage of work caused by lockout.  69 H. 319, 741 P.2d 1272.

  Employer failed to prove a continuing employment relationshipat the time of recall when it attempted to seek disqualification ofunemployment benefits.  71 H. 419, 794 P.2d 1115.

  After many counseling sessions and notices regardingemployee's poor dependability, employee should have known job would be in jeopardyif employee left work early without permission; employee's conscious decisionto do so constituted an unexcused absence which demonstrated a "wilful orwanton disregard of the employer's interests" and disqualified employeefor unemployment benefits.  84 H. 305, 933 P.2d 1339.

  Employee did not voluntarily quit employment but wasdischarged where employer was moving party in termination of employmentrelationship.  84 H. 305, 933 P.2d 1339.

  Employee has burden of proving that a voluntary termination waswith good cause; employee has duty to try reasonable alternatives for solutionof problem within employer's organization before terminating employment.  2 H.App. 560, 634 P.2d 1058.

  The intent of unemployment benefits under this section is topay benefits only to those claimants who became involuntarily unemployedthrough no fault of their own; where claimant's conduct constituted misconductconnected with work, as found by the appeals officer and the trial court,claimant's misconduct connected with work disqualified claimant from receivingunemployment benefits under paragraph (2).  108 H. 258, 118 P.3d 1201.

  Where there was a "substantial curtailment" ofemployer bus company's business activity during the strike, there was a"stoppage of work"; as the stoppage of work came about "becauseof a labor dispute", there was a "stoppage of work" within themeaning of paragraph (4) and employees were not entitled to unemploymentcompensation benefits.  110 H. 259, 132 P.3d 368.

  Where employee voluntarily quits employment under paragraph(1), employee has burden of proving that his or her leaving was with goodcause.  80 H. 481 (App.), 911 P.2d 116.

  "Constructive voluntary leaving" doctrine cannot bebasis for disqualification from unemployment benefits under paragraph (1).  84H. 407 (App.), 935 P.2d 122.

  For employee to be the "moving party in the terminationof the employment relationship" and to therefore have "left workvoluntarily," the facts and circumstances must indicate that employee hadthe intent to terminate the employment relationship.  84 H. 407 (App.), 935P.2d 122.

  Where claimant knew or should have known that claimant's jobwould be in jeopardy if claimant chose to drive uninsured, and claimant made aconscious decision in the face of that risk to do precisely that, demonstratinga "wilful or wanton disregard of employer's interests", defined byHawaii administrative rule §12-5-51(c) as "misconduct connected withwork", this disqualified claimant from unemployment insurance benefits underparagraph (2).  93 H. 75 (App.), 996 P.2d 280.

  Construing §383-29 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.

  Mentioned:  817 F. Supp. 850.

  Cited:  44 H. 93, 94, 352 P.2d 856.

 

Hawaii Legal Reporter Citations

 

  Refusal of work.  77-1 HLR 77-49.