§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]

 

Revision Note

 

  In paragraph (6), (A) and (B) reformatted as subparagraphs (A) and (B) and in paragraph (6)(A), punctuation changed pursuant to §23G-15.

 

Law Journals and Reviews

 

  Commentary on Selected Employment and Labor Law Decisions Under the Lum Court.  14 UH L. Rev. 423 (1992).

 

Case Notes

 

  Paragraph (4) not preempted by National Labor Relations Act. 614 F.2d 1197 (1980).

  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 (1974).

  Suitable work--refusal to return to own job during dispute does not disqualify.  46 H. 140, 377 P.2d 715 (1962).

  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 (1962).

  Voluntary separation--striking, in itself does not disqualify.  46 H. 140, 377 P.2d 715 (1962).

  "Left his work voluntarily" as used in §§383-30(1) and 383-65 has same meaning.  46 H. 164, 377 P.2d 932 (1962).

  Stoppage of work.  50 H. 225, 437 P.2d 317 (1968); 68 H. 316, 713 P.2d 943 (1986). 

  "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 (1971).

  "Discharge for misconduct" does not include suspension for misconduct.  54 H. 563, 512 P.2d 1 (1973).

  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 (1977).

  Findings of fact by department if supported by substantial evidence are conclusive.  58 H. 265, 567 P.2d 1233 (1977).

  Where disqualification is claimed, employer has burden of proof.  58 H. 265, 567 P.2d 1233 (1977).

  Retiring worker did not quit voluntarily without good cause. 65 H. 146, 648 P.2d 1107 (1982).

  Violation of traffic code by crossing solid line not "misconduct" under circumstances.  67 H. 212, 685 P.2d 794 (1984).

  Does not prohibit payment of benefits unless claimant became unemployed as a result of discharge for misconduct.  68 H. 19, 704 P.2d 881 (1985).

  Disqualification for benefits on basis of labor dispute includes stoppage of work caused by lockout.  69 H. 319, 741 P.2d 1272 (1987).

  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 (1990).

  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 (1997).

  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 (1997).

  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 (2005).

  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 (2006).

  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 (1981).

  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 (1996).

  "Constructive voluntary leaving" doctrine cannot be basis for disqualification from unemployment benefits under paragraph (1).  84 H. 407 (App.), 935 P.2d 122 (1997).

  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 (1997).

  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 (2000).

  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 (2000).

  Cited:  44 H. 93, 94, 352 P.2d 856 (1960).

  Mentioned:  817 F. Supp. 850 (1992).

 

 

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