HOUSE OF REPRESENTATIVES

H.B. NO.

113

TWENTY-SIXTH LEGISLATURE, 2011

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO THE EMPLOYMENT SECURITY LAW.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Chapter 383, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part

Short-tIME compensation program

     §383-A  Definitions.  For purposes of this part:

     "Affected unit" means a specified plant, department, shift, or other definable unit consisting of not less than the number of employees to which an approved short time compensation plan applies as determined by the director.

     "Employers' association" means an association which is a party to a collective bargaining agreement under which the parties may negotiate a short-time compensation plan.

     "Fringe benefits" include but are not limited to such advantages as health insurance (hospital, medical, and dental services, etc.), retirement benefits under defined benefit pension plans (as defined in Section 3(35) of the Employee Retirement Income Security Act of 1974), paid vacation and holidays, and sick leave, which are incidents of employment in addition to the cash remuneration earned.

     "Short-time compensation" means the unemployment benefits payable to employees in an affected unit under an approved short-time compensation plan as distinguished from the unemployment benefits otherwise payable under the conventional unemployment compensation provisions of the state law.

     "Short-time compensation plan" or "plan" means a plan of an employer, or of an employers' association that is a party to a collective bargaining agreement, under which there is a reduction in the number of hours worked by all employees of an affected unit rather than temporary layoffs of some employees.  The term "temporary layoffs" for this purpose means the separation of workers in the affected unit for an indefinite period expected to last for more than two months but not more than one year.

     "Usual weekly hours of work" means the normal hours of work for full-time and permanent part-time employees in the affected unit when that unit is operating on its normally full-time basis, not to exceed forty hours and not including overtime.

     "Unemployment compensation" means the unemployment benefits payable under this part other than short-time compensation and includes any amounts payable pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.

     §383-B  Criteria for approval of a short-time compensation plan.  An employer or employers' association wishing to participate in a short-time compensation plan shall submit a signed written short-time compensation plan to the director for approval.  The director shall approve a short-time compensation plan only if the following criteria are met:

     (1)  The plan applies to and identifies specified affected units;

     (2)  The employees in the affected unit or units are identified by name, social security number, and by any other information required by the director;

     (3)  The usual weekly hours of work for employees in the affected unit or units are reduced by not less than ten per cent and not more than a percentage as determined by the director;

     (4)  Health benefits and retirement benefits under defined benefit pension plans, as defined in Section 3(35) of the Employee Retirement Income Security Act of 1974), will continue to be provided to employees in affected units as though their work weeks had not been reduced;

     (5)  The plan certifies that the aggregate reduction in work hours is in lieu of temporary layoffs which would have affected at least ten per cent of the employees in the affected unit or units to which the plan applies and which would have resulted in an equivalent reduction in work hours;

     (6)  During the previous four months, the work force in the affected unit has not been reduced by temporary layoffs of more than ten per cent of the workers;

     (7)  The plan applies to at least ten per cent of the employees in the affected unit, and when applicable applies to all employees of the affected unit equally;

     (8)  In the case of employees represented by an exclusive bargaining representative, the plan is approved in writing by the collective bargaining agent, and in the absence of an agent, by representatives of the employees in the affected unit;

     (9)  The plan will not serve as a subsidy of seasonal employment during the off season, nor as a subsidy of temporary part-time or intermittent employment; and

    (10)  The employer agrees to furnish reports relating to the proper conduct of the plan and agrees to allow the director's authorized representatives access to all records necessary to verify the plan prior to approval and, after approval, to monitor and evaluate the application of the plan.

In addition to the matters specified above, the director shall take into account any other factors which may be pertinent to proper implementation of the plan.

     §383-C  Approval or rejection of the plan.  The director shall approve or reject a plan in writing within thirty days of its receipt.  The reasons for rejection shall be final and non-appealable, but the employer shall be allowed to submit another plan for approval not earlier than sixty days from the date of the earlier rejection.

     §383-D  Effective date and duration of plan.  A plan shall be effective on the date specified in the plan or on a date mutually agreed upon by the employer and the director.  The plan shall expire at the end of the twelfth full calendar month after its effective date or on the date specified in the plan, whichever is earlier; provided that the plan is not previously revoked by the director.  If a plan is revoked by the director, it shall terminate on the date specified in the director's written order of revocation.

     §383-E  Revocation of approval.  The director may revoke approval of a plan for good cause.  The revocation order shall be in writing and shall specify the date the revocation is effective and the reasons therefor.

     Good cause shall include but not be limited to failure to comply with the assurances given in the plan, unreasonable revision of productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the plan, and violation of any criteria on which approval of the plan was based.

     Action may be taken at any time by the director on the director's own motion, on the motion of any of the affected unit's employees, or on the motion of the appropriate collective bargaining agent; provided that the director shall review the operation of each qualified employer's plan at least once during the period the plan is in effect to assure its compliance with the requirements of these provisions.

     §383-F  Modification of an approved plan.  An operational approved plan may be modified by the employer with the acquiescence of employee representatives if the modification is not substantial and in conformity with the plan approved by the director; provided that the modifications are reported promptly to the director.  If the hours of work are increased or decreased substantially beyond the level in the original plan, or any other conditions are changed substantially, the director shall approve or disapprove the modifications, without changing the expiration date of the original plan.  If the substantial modifications do not meet the requirements for approval, the director shall disallow that portion of the plan in writing as specified in section 386-E.

     §383-G  Eligibility for short-time compensation.  (a)  An individual is eligible to receive short-time compensation benefits with respect to any week only if, in addition to monetary entitlement, the director finds that:

     (1)  During the week, the individual is employed as a member of an affected unit under an approved short-time compensation plan which was approved prior to that week, and the plan is in effect with respect to the week for which short-time compensation is claimed; and

     (2)  The individual is able to work and is available for the normal work week with the short-time employer.

     (b)  Notwithstanding any other provisions of this part to the contrary, an individual is deemed unemployed in any week for which remuneration is payable to the individual as an employee in an affected unit for ninety per cent or less than his normal weekly hours of work as specified under the approved short-time compensation plan in effect for the week.

     (c)  Notwithstanding any other provisions of this part to the contrary, an individual shall not be denied short-time compensation benefits for any week by reason of the application of provisions relating to availability for work and active search for work with an employer other than the short-time employer.

     §383-H  Benefits.  (a)  The short-time weekly benefit amount shall be the product of the regular weekly unemployment compensation amount multiplied by the percentage of reduction of at least ten per cent in the individual's usual weekly hours of work.

     (b)  An individual may be eligible for short-time compensation benefits or unemployment compensation, as appropriate, except that no individual shall be eligible for combined benefits in any benefit year in an amount more than the maximum entitlement established for unemployment compensation, nor shall an individual be paid short-time compensation benefits for more than twenty-six weeks, whether or not consecutive, in any benefit year pursuant to a short-time plan.

     (c)  The short-time compensation benefits paid to an individual shall be deducted from the maximum entitlement amount established for that individual's benefit year.

     (d)  Claims for short-time compensation benefits shall be filed in the same manner as claims for unemployment compensation or as prescribed in rules by the director.

     (e)  Provisions applicable to unemployment compensation claimants shall apply to short-time compensation claimants to the extent that they are not inconsistent with the short-time compensation provisions of this part.  An individual who files an initial claim for short-time compensation benefits shall be provided, if eligible therefor, a monetary determination of entitlement to short-time compensation benefits, and shall serve a waiting week.

     (f)  If an individual works in the same week for an employer other than the short-time employer and the individual's combined hours of work for both employers are equal to or greater than the usual hours of work with the short-time employer, the individual shall not be entitled to benefits under these short-time provisions or the unemployment compensation provisions.

     If an individual works in the same week for both the short-time employer and another employer and the individual's combined hours of work for both employers are equal to or less than ninety per cent of the usual hours of work for the short-time employer, the benefit amount payable for that week shall be the weekly unemployment compensation amount reduced by the same percentage that the combined hours are of the usual hours of work.  A week for which benefits are paid under this provision shall count as a week of short-time compensation.

     If an individual did not work during any portion of the work week, other than the reduced portion covered by the short-time plan, with the approval of the employer, the individual shall not be disqualified for the absence or deemed ineligible for short-time compensation benefits for that reason alone.

     An individual who performs no services during a week for the short-time employer and is otherwise eligible, shall be paid the full weekly unemployment compensation amount.  Such a week shall not be counted as a week with respect to which short-time compensation benefits were received.

     An individual who does not work for the short-time employer during a week but works for another employer and is otherwise eligible, shall be paid benefits for that week under the partial unemployment compensation provisions of this chapter.  Such a week shall not be counted as a week with respect to which short-time compensation benefits were received.

     §383-I  Charging shared work benefits.  Short-time compensation benefits shall be charged to employers' experience rating accounts in the same manner as unemployment compensation is charged under this chapter.  Employers liable for payments in lieu of contributions shall have short-time compensation benefits attributed to service in their employ in the same manner as unemployment compensation is attributed.

     §383-J  Extended benefits.  An individual who has received all of the short-time compensation benefits or combined unemployment compensation and short-time compensation benefits available in a benefit year shall be considered an exhaustee for purposes of extended benefits, as provided under the provisions of section 383-168, and, if otherwise eligible under those provisions, shall be eligible to receive extended benefits.

     §383-K  Benefit charging.  No contributory employer with a negative reserve ratio or delinquent reimbursable shall be eligible to participate in the short-time compensation program."

     SECTION 2.  The department of labor and industrial relations shall adopt rules to effectuate the purposes of this Act.

     SECTION 3.  If any provision of this Act is found to be in conflict with federal requirements that are a prescribed condition for the allocation of federal funds to the State, the conflicting provision of this Act shall be held inoperative solely to the extent of the conflict and the federal requirements shall govern.

     SECTION 4.  In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 5.  This Act shall take effect on July 1, 2112.



 

Report Title:

Employment Security

 

Description:

Establishes provisions to implement and regulate short-time compensation plans.  Effective July 1, 2012.  (HB113 HD1)

 

 

 

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