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



(1)  Voluntary separation.  For any week prior to
October 1, 1989, in which the individual has left work voluntarily without
good cause, and continuing until the individual has, subsequent to the week in
which the voluntary separation occurred, been employed for at least five
consecutive weeks of employment.  For the purposes of this paragraph,
"weeks of employment" means all those weeks within each of which the
individual has performed services in employment for 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 week beginning on and after
October 1, 1989, in which the individual has left the individual's work
voluntarily without good cause, and continuing until the individual has,
subsequent to the week in which the voluntary separation occurred, been paid
wages in covered employment equal to not less than five times the individual's
weekly benefit amount as determined under section 383-22(b).



An owner-employee of a corporation who
brings about the owner-employee's unemployment by divesting ownership, leasing
the business interest, terminating the business, or by other similar actions
where the owner-employee is the party initiating termination of the employment
relationship, has voluntarily left employment.



(2)  Discharge or suspension for misconduct.  For any
week prior to October 1, 1989, in which the individual has been discharged
for misconduct connected with work, and continuing until the individual has,
subsequent to the week in which the discharge occurred, been employed for at
least five consecutive weeks of employment.  For the week in which the
individual has been suspended for misconduct connected with work and for not
less than one or more than four consecutive weeks of unemployment which
immediately follow such week, as determined in each case in accordance with the
seriousness of the misconduct.  For the purposes of this paragraph, "weeks
of employment" means all those weeks within each of which the individual
has performed services in employment for 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 week beginning on and after October 1, 1989, in
which the individual has been discharged for misconduct connected with work,
and until the individual has, subsequent to the week in which the discharge
occurred, been paid wages in covered employment equal to not less than five
times the individual's weekly benefit amount as determined under section
383-22(b).



(3)  Failure to apply for work, etc.  For any week
prior to October 1, 1989, in which the individual failed, without good cause,
either to apply for available, suitable work when so directed by the employment
office or any duly authorized representative of the department of labor and
industrial relations, or to accept suitable work when offered and continuing
until the individual has, subsequent to the week in which the failure occurred,
been employed for at least five consecutive weeks of employment.  For the
purposes of this paragraph, "weeks of employment" means all those
weeks within each of which the individual has performed services in employment
for 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 week
beginning on and after October 1, 1989, in which the individual failed, without
good cause, either to apply for available, suitable work when so directed by
the employment office or any duly authorized representative of the department
of labor and industrial relations, or to accept suitable work when offered
until 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 the
individual's weekly benefit amount as determined under section 383-22(b).



(A)  In determining whether or not any work is
suitable for an individual there shall be considered among other factors and in
addition to those enumerated in paragraph (3)(B), the degree of risk involved
to the individual's health, safety, and morals, the individual's physical
fitness and prior training, the individual's experience and prior earnings, the
length of unemployment, the individual's prospects for obtaining work in the
individual's customary occupation, the distance of available work from the
individual's residence, and prospects for obtaining local work.  The same
factors so far as applicable shall be considered in determining the existence
of good cause for an individual's voluntarily leaving work under paragraph (1).



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



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



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



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



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



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



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



(5)  If the department finds that the individual has
within the twenty-four calendar months immediately preceding any week of
unemployment made a false statement or representation of a material fact
knowing it to be false or knowingly failed to disclose a material fact to
obtain any benefits not due under this chapter, the individual shall be
disqualified for benefits beginning with the week in which the department makes
the determination and for each consecutive week during the current and
subsequent twenty-four calendar months immediately following such
determination, and such individual shall not be entitled to any benefit under
this chapter for the duration of such period; provided that no disqualification
shall be imposed if proceedings have been undertaken against the individual
under section 383-141.



(6)  Other unemployment benefits.  For any week or
part of a week with respect to which the individual has received or is seeking
unemployment benefits under any other employment security law, but this
paragraph shall not apply (A) if the appropriate agency finally determines that
the individual is not entitled to benefits under such other law, or (B) if
benefits are payable to the individual under an act of Congress which has as
its purpose the supplementation of unemployment benefits under a state law. [L
1939, c 219, §5; am L 1941, c 304, §1, subs 17; RL 1945, §4231; am L Sp 1949, c
13, §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 L
Sp 1959 2d, c 1, §27; HRS §383-30; am L 1973, c 75, §1; am L 1976, c 157, §2; am
L 1978, c 198, §1; am L 1982, c 20, §1; gen ch 1985; am L 1986, c 32, §3 and c
162, §4]



 



Law Journals and Reviews



 



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



 



Case Notes



 



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



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



  Under paragraph (4) of this section labor dispute--includes
dispute 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.2d
943.  "Stoppage of work" means substantial curtailment of business
activities at employer's establishment, rather than unemployment of striking
employee; "establishment," construed.  53 H. 185, 489 P.2d 1397.



  Whether Hawaii's scheme of paying benefits to striking
employees impermissibly intrudes in the collective bargaining process covered
by 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 a
tender of a specific and bona fide offer of work.  58 H. 265, 567 P.2d 1233.



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



  Where disqualification is claimed, employer has burden of
proof.  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 became
unemployed as a result of discharge for misconduct.  68 H. 19, 704 P.2d 881.



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



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



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



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



  Employee has burden of proving that a voluntary termination was
with good cause; employee has duty to try reasonable alternatives for solution
of 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 to
pay benefits only to those claimants who became involuntarily unemployed
through no fault of their own; where claimant's conduct constituted misconduct
connected with work, as found by the appeals officer and the trial court,
claimant's misconduct connected with work disqualified claimant from receiving
unemployment benefits under paragraph (2).  108 H. 258, 118 P.3d 1201.



  Where there was a "substantial curtailment" of
employer bus company's business activity during the strike, there was a
"stoppage of work"; as the stoppage of work came about "because
of a labor dispute", there was a "stoppage of work" within the
meaning of paragraph (4) and employees were not entitled to unemployment
compensation 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 good
cause.  80 H. 481 (App.), 911 P.2d 116.



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



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



  Where claimant knew or should have known that claimant's job
would be in jeopardy if claimant chose to drive uninsured, and claimant made a
conscious decision in the face of that risk to do precisely that, demonstrating
a "wilful or wanton disregard of employer's interests", defined by
Hawaii administrative rule §12-5-51(c) as "misconduct connected with
work", this disqualified claimant from unemployment insurance benefits under
paragraph (2).  93 H. 75 (App.), 996 P.2d 280.



  Construing §383-29 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.



  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.