HAR §12-5-35. Availability

(a) An individual shall be deemed able and available for work within the meaning of section 383-29(a)(3), Hawaii Revised Statutes, if the individual is able and available for suitable work during the customary work week of the individual's customary occupation which falls within the week for which a claim is filed. (1) An individual shall be deemed able to work if the individual has the physical and mental ability to perform the usual duties of the individual's customary occupation or other work for which the individual is reasonably fitted by training and experience. (2) An individual shall be deemed available for work only if the individual is ready and willing to accept employment for which the individual is reasonably fitted by training and experience. The individual must intend and wish to work, and there must be no undue restrictions either self-imposed or created by force of circumstances which prevent the individual from accepting employment. (3) Notwithstanding any provisions of this subsection to the contrary, an individual who meets the definition of part-total unemployment under section 12-5-1 may be considered available for work in situations where the individual did not accept an offer of part-time work from an employer: (A) If the offer of part-time work was not in the individual=s customary occupation or in the occupation that the individual is seeking full-time employment, and the individual was otherwise available for employment during the normal work week in the individual=s customary occupation or in the occupation that the individual is seeking full-time employment; (B) Due to a work schedule conflict with another employer; or (C) Due to lack of sufficient advance notice of a work schedule change. (b) The individual must be willing to accept the wages and hours and days of employment that are prevailing or customary in the community in which the individual is seeking work. The individual must be available in a labor market area where there is a reasonable demand for the individual's services. The geographical extent of such area is limited to the area in which the individual lives and within which the individual reasonably can be expected to commute to work. An individual shall use any reasonable and available means of transportation, including public transportation and means of transportation customarily employed by persons in the individual's community. All individuals claiming benefits shall make personal efforts to find work as are customarily made by persons in the same occupation who are genuinely interested in obtaining employment. An individual shall use the facilities and methods which are normally used by persons in that person's occupation when seeking work. As an 14 individual's length of unemployment increases and the individual has been unable to find work in the individual's customary occupation, the individual may be required to: (1) Seek work in some other occupation for which the individual is reasonably fitted by training and experience and in which vacancies exist; or (2) Lower the individual's wage demands; or (3) Broaden the geographical area in which the individual will accept work; or (4) Accept counseling for possible retraining or a change in occupation. The above alternatives shall be considered in light of the improving or deteriorating state of the economy of the individual's labor market area, the existing and reasonably foreseeable level of demand in the various occupations for which the individual is reasonably fitted, the wages being offered at that time, and other similar factors. (c) An individual may be considered available for work for any week in which the individual has met the work search requirements of this section. (1) The individual shall make a minimum of three work search contacts each week, unless otherwise provided in this subsection. (2) The individual shall maintain a record of all work search contacts and may be required to submit such record upon request by the department. (3) Activities that constitute work search contacts, include but are not limited to: (A) Registering for work at the employment office in accordance with section 383-29(a)(2), Hawaii Revised Statutes; (B) Registering for work with a private employment agency or placement facility of a school, college or university; (C) Applying for work, submitting resumes or interviewing with potential employers; (D) Utilizing employment resources available at employment offices that identify the individual’s skills in occupations in demand in the local labor market area; (E) Attending job search seminars, job clubs, or other employment workshops that offer instruction in improving an individual’s skills for seeking and obtaining employment; and (F) Conducting other work search activities which are made by individuals in the same or similar occupation who are genuinely interested in obtaining work or as may be provided by the department. (4) An individual shall be exempted from the work search requirements of this subsection, or be subject to modified work search requirements as authorized by the department if the individual: (A) is waived from registration for work requirements under section 12-5-31; (B) is participating in approved training under section 383-29(e), Hawaii Revised Statutes; (C) has otherwise been instructed by the department to be conducting work search activities in a manner consistent with and reflective of local area policies and local labor market opportunities; or (D) for any other reason that has been determined by the department to meet work search requirements that are consistent with industry practices or are customary for the occupation. (5) An individual who fails to comply with the requirements of this subsection may 15 be considered not available for work and be held ineligible for benefits. (d) For the waiver, due to illness or disability, of the availability requirement of section 383-29(a)(3), Hawaii Revised Statutes, to apply, an individual shall have registered for work, as provided by law and this chapter, prior to the onset of the illness or disability, and shall have filed an initial claim to establish that individual's eligibility for benefits prior to the beginning of the illness or disability. Illness or disability shall be evidenced by a physician's certificate. If the incapacitated individual is offered work which would have been suitable prior to the individual's illness or disability and the individual cannot accept such work because of the individual's illness or disability, the waiver shall not apply. "Offered work" as used in this subsection means a direct offer of work by an employer or employer's authorized representative, or referral to a job or a call-in made by the employment office for purposes of referral to suitable work (e) Notwithstanding any other provisions in this section, an individual shall not be deemed able and available for work during any week with respect to which the individual is receiving or has received compensation for temporary partial or temporary total disability under the workers' compensation law of any state. [Eff. 6/26/81; am 10/12/00; am 11/6/06] (Auth: HRS '383-92) (Imp: HRS '383-29(a)(3)) ''12-5-36 to 12-5-38 (Reserved) '12-5-39 Denial of benefits to employees of educational institutions and governmental agencies during specific periods. (a) As used in section 383-29(b), Hawaii Revised Statutes, and this section: (1) Individuals employed in an "instructional" capacity include persons engaged in teaching students in formal classrooms, and individuals who teach in less formal arrangements, such as tutorial relationships and direction of students in independent research and learning; (2) Individuals employed in a "research" capacity include those who direct a research project and the staff directly engaged in gathering, correlating, and evaluating information and making findings. The individuals who provide supportive services for the research, such as typists, clerks, and electricians engaged in wiring the information processing equipment under the direction of the research staff, are not included in this term; (3) Individuals employed in a "principal administrative" capacity include officers of the institution (such as the president), the board of directors, business managers, deans, associate deans, public relations directors, comptrollers, development officers, chief librarians, registrars, and individuals who, although they may lack official titles, actually perform in similar functions. The duties performed by the individual rather than the title that person holds shall determine whether or not that person is included in this term; (4) "Service in any other capacity" includes all other services performed by employees of an educational institution or governmental agency such as the school secretary, office clerical staff, school lunch aides, cafeteria workers, school health aides, school security aides, and individuals who provide supportive services; (5) "Professional capacity" includes the individuals engaged in instructional, research, and principal administrative capacities; 16 (6) "Nonprofessional capacity" includes the individuals engaged in performing "services in any other capacity" in an educational institution or governmental agency; (7) "Institution of education" means an institution that: (A) Offers an organized course of study or training designed to transfer knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher to participants, trainees, or students. Such course of study or training may be academic, technical, trade, or preparation for gainful employment in a recognized occupation; and (B) Is approved, licensed or issued a permit to operate as a school by the State Department of Education, Board of Education, or other government agency that is authorized within the State to approve, license or issue permits for the operation of schools such as private, public, profit making, and non-profit institutions, whether the institutions are pre-schools, primary schools, secondary schools, preparatory or vocational schools, colleges, universities, junior or community colleges, or similar institutions within or without the State; (8) "Sabbatical leave" includes any paid leave whether for professional improvement or other leave, where both the leave and the individual's resumption of work upon termination of the leave are provided for in the contract; (9) "Established and customary vacation or recess for a holiday" includes the Christmas or spring break, or similar periods within an academic year or term, when that period has been placed on the school calendar for that school year; (10) "Governmental agency," as used in this section and section 383-29(b), Hawaii Revised Statutes, includes an educational service agency and any federal, state, county, or other type of governmental agency which is established and operated exclusively for the purpose of providing instructional, research, or principal administrative services, or any other services to one or more educational institutions; (11) The "contract" which an individual has with an institution of education or governmental agency may be written, oral, implied, or expressed. In some cases, the contract may be merely a notice of appointment or reappointment or a letter indicating that the individual's services have been accepted. Generally, as long as there is a mutual commitment between an individual and a particular institution, the individual's services shall be considered covered by a contract; (12) "Reasonable assurance" means a written, oral, implied agreement that the individual will perform services or provides the individual with a realistic expectation of employment in an institution of education or governmental agency in an instructional, research, principal administrative, or any other capacity during the ensuing academic year or term. Notification from the institution of education or governmental agency to the individual of reemployment for the next academic year or term shall constitute reasonable assurance, provided there are sufficient facts to show that the individual can realistically expect to be reemployed during the ensuing academic year or term, including, but not limited to: (A) The existence of a job opening; (B) The nature and effect of any factors, such as: 17 (i) Future enrollment; (ii) Availability of funding; (iii) Vacancies due to absences of regular employees; or (iv) The individual=s past employment with an institution of education or governmental agency; (C) The employer=s practice or procedure in assignment and offering work to its employees; and (D) Any other factors to be considered in determining realistic expectation for reemployment; and (13) "Opportunity to perform such services" means an actual chance to perform these services for an institution of education or a governmental agency in the academic year or the term that follows. The offer shall specify the conditions under which the offer of work was made to the individual and upon which reasonable assurance was previously given. If it is established that the offer was not bona fide, as may be indicated by a dismissal shortly after the individual begins performance of the required service, the individual may be eligible for retroactive payment of benefits. (b) When an initial claim is filed by an individual, the institution of education or governmental agency shall provide the department with a statement as to whether or not reasonable assurance of employment has been given to the individual for the ensuing academic year or term and specific facts in support of the reasonable assurance, such as: (1) The conditions of prospective work, including: (A) Job title; (B) The duties; (C) The hours of work; (D) The salary; and (E) The dates of employment; and (2) Any other information necessary for a proper determination of a claim for benefits. (c) If it has been determined by the department that a denial is applicable under section 383-29(b), Hawaii Revised Statutes, benefits shall not be paid during: (1) The interval between two successive academic years, such as the summer vacation period; (2) Any period or term within an institution's academic year which occurs between two regular terms, whether or not successive, and during which the individual is not required to perform services in a professional capacity. For example, in the case of an individual whose contracts for each of two twelve-month periods require that individual to teach during the spring, summer, and winter terms in an institution with a four-term academic year and do not require that individual to perform such services during the intervening fall term, no benefits may be paid to that individual during the fall term. The fall term would be the period "between two regular terms, whether or not successive"; (3) Sabbatical leave; (4) The period between the end of the sabbatical leave and the beginning of the next academic year or term, and the period between the end of the preceding academic year or term and the beginning of the sabbatical leave; (5) An established and customary vacation or recess for a holiday which falls within an academic year or term; or 18 (6) Any period during an established and customary vacation or recess for a holiday within an academic term when an employee in an educational institution working in one capacity receives reasonable assurance of continued employment in another capacity after the established and customary vacation or recess for a holiday within the academic term. For example, if an individual performed services in a professional capacity in the academic period prior to the established and customary vacation or recess for a holiday for an educational institution and will be returning to an educational institution in a nonprofessional capacity in the academic period following the established and customary vacation or recess for a holiday, the denial would apply. (d) The denial of benefits shall not apply during the applicable period between two academic terms or during an established or customary vacation or recess for a holiday period: (1) If the individual performed services in an institution of education or governmental agency in the first academic period and has a contract or reasonable assurance of employment with a different type of employer in the ensuing academic period. The denial would not apply, for example, where an individual was employed by an educational institution in the first academic period and accepted employment with a governmental agency or a non-educational employer in the second academic period; or (2) If the individual has wages from other covered employment and meets all eligibility requirements. The individual may be paid benefits for the periods between academic years, terms or semesters, or within academic periods based on the individual's covered wages from employers other than an institution of education or governmental agency; or (3) If the economic terms and conditions of the job offered in the second period are substantially less than the terms and conditions for the job in the first period. The denial would apply, for example, where a full-time teacher is offered a one-year contract as a long-term substitute teacher at the same rate of pay and daily employment is guaranteed for the term of the contract. The denial would not apply, for example, where a full-time teacher during the first academic year is offered a contract to teach only one hour per day or is placed on the on-call list during the second academic year. [Eff. 6/26/81; am 12/31/84; am 9/23/89; am 10/12/00; am 11/6/06] (Auth: HRS '383-92) (Imp: HRS '383-29(b)) ''12-5-40 to 12-5-42 (Reserved)