HOUSE OF REPRESENTATIVES

H.B. NO.

2414

TWENTY-FIFTH LEGISLATURE, 2010

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO UNEMPLOYMENT INSURANCE.

 

 

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

 


     SECTION 1.  The legislature finds that the establishment of a state shared work plan, or workshare program, will discourage employers from terminating any one employee and instead encourage them to merely reduce the working hours of more than one employee.  The workshare program will also enable those employees whose working hours are reduced to receive partial unemployment benefits.

     The legislature further finds that by discouraging reductions in force, a workshare program will enable employers to maintain their present levels of production capability, although at lower levels of activity, and to quickly capitalize on those levels of capability once the economy rebounds.  The legislature further finds that a workshare program will be particularly beneficial to small businesses, which account for roughly twenty-five per cent of all jobs in the State and generated about forty per cent of all job growth during the last economic expansion between 2003 and 2007.

     The purpose of this Act is to do as follows:

     (1)  Establish a permanent workshare plan program, which is a partial unemployment program under which employers volunteer to reduce the working hours of their employees as an alternative to terminating them; and

     (2)  Repeal the temporary partial unemployment system established under Act 170, Session Laws of Hawaii 2009.

Part I.

Establishment of WorkShare Program

     SECTION 2.  Chapter 383, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART   .  WORKSHARE PROGRAM

     §383-A  Plan application and approval.  (a)  Any employer shall be eligible to submit a workshare plan to the director for the director's approval, provided that:

     (1)  The employer has at least two but not more than twenty-five employees in its employing unit at the time of application and before approval; and

     (2)  The employer has no other workshare plan concurrently in effect at the time of application.

     (b)  An eligible employer wishing to participate in the workshare program shall submit a signed, written workshare plan to the director for approval.  The director shall give written approval of a workshare plan provided that the following requirements are met:

     (1)  The plan shall apply to at least two employees who normally work thirty to forty hours per week;

     (2)  The plan reduces, by an overall average of at least twenty per cent but not more than forty per cent, the normal weekly hours of all employees in an employing unit who normally work thirty to forty hours a week;

     (3)  Reductions in weekly work hours of individual employees may vary, provided that the reductions are otherwise equitable; and

     (4)  The plan provides coverage to employees for at least eight weeks but not more than fifty-two weeks from the date of approval by the director.

     (c)  The director shall approve or disapprove the workshare plan in writing within fifteen days of its receipt.  The director shall notify the employer of the reasons for disapproval of a plan within ten days of the determination.  Determinations of the director shall be final and are not subject to review by any court or other administrative body.

     (d)  Any employer whose plan is disapproved by the director shall have the opportunity to submit another plan for consideration.

     (e)  Once the plan is approved, the employer shall provide weekly written certifications to the director on forms developed by the director, that employees have worked all available hours for the week in which benefits under this part are claimed.

     §383-B  Plan modifications.  (a)  Any employer may request changes to a workshare plan approved by the director by submitting a workshare modification application to the director upon forms developed by the director.  Alternatively, the employer may make individual modifications upon the employee's weekly claim certifications.

     (b)  No employer may modify a plan approved by the director through the addition or deletion of employees subject to the plan unless approved by the director; provided that any employer whose employing unit expands beyond the maximum limit of twenty-five employees during the plan period shall be required to file a new plan with the director; provided further that any employer whose employing unit contracts below the minimum limit of two employees shall remain subject to the requirements of this part.

     (c)  No employer may modify the overall reduction in hours without the director's approval.  The director may not approve of such a modification unless the modification is necessary to prevent any layoffs within the employing unit.

     (d)  No employer may terminate any employee subject to the protections of the workshare plan without submitting a request to the director to terminate the employee.  The director may disapprove of the termination of an employee unless for reasons of hardship or changed circumstances, as determined by the director through rules.  Unless disapproved by director within thirty days, the request for termination shall be deemed approved.

     §383-C  Eligibility of employees; benefit limitation.  (a)  An individual is unemployed and eligible to receive workshare benefits with respect to any week if, in addition to meeting all other eligibility requirements of this chapter, except as specifically excepted in subsection (d), the director finds that:

     (1)  The individual was first hired by the employer at least one year before the plan was submitted for approval to the director;

     (2)  During the week the individual is employed in an approved plan that was approved prior to the week and is in effect for the week; and

     (3)  During the week the individual's normal weekly hours of work were reduced, in accordance with an approved plan, at least twenty per cent but not more than forty per cent, with a corresponding reduction in wages.

     (b)  Workshare benefits shall not be paid to an eligible individual for more than fifty-two weeks under an approved plan or modification thereof.

     (c)  The total amount of regular benefits and workshare benefits paid to an individual in a benefit year shall not exceed the total for the benefit year as provided in section 383-24.

     (d)  An otherwise eligible individual shall not be denied benefits under this section because of the application of any provision of this chapter relating to availability for work, active search for work, or refusal to apply for or accept work from other than the individual's workshare employer.

     §383-D  Method of paying benefits; amount; disqualification; applicability of law to workshare plans; rules.  (a)  An individual who is eligible for workshare benefits under this part shall be paid, with respect to any week of unemployment, a weekly workshare benefit amount that shall be equal to the individual's regular weekly benefit amount multiplied by the nearest full percentage of reduction of the individual's regular weekly hours of work, as set forth in the employer's plan.  The benefit payment under this part, if not a multiple of $1, shall be rounded to the nearest dollar, and an even one-half dollar shall be rounded to the next higher multiple of $1.

     (b)  No amount of earnings from other employment with another employer in any week in which the plan is in force shall be used to reduce the weekly benefit under this part.

     (c)  An individual shall be disqualified for benefits payable under this part for any week in which paid work is performed for the workshare employer in excess of the reduced hours as set forth in the approved plan.

     (d)  Except as otherwise provided by or inconsistent with this part, this chapter and the rules thereunder shall apply to this part.  The director may adopt such rules as is deemed necessary to make distinctions and requirements to carry out the purposes of this part.

     §383-E  Reimbursement to unemployment compensation fund of workshare benefits paid; use of benefit charges.  (a)  Any employer who participates in an approved workshare plan shall pay into the unemployment compensation fund an amount equivalent to all workshare benefits paid to employees of the employer under the plan during any rating period for which the employer's benefit ratio, expressed as a percentage rounded to the nearest 0.1 per cent, is in excess of the employer's contribution rate for such rating period.

     (b)  All reimbursement obligations arising under this section are in addition to and separate from any other obligation imposed under this chapter.  At the end of each calendar quarter, the director shall determine the amount of reimbursement due to the fund from each employer participating in a workshare plan and shall bill each employer for the amount. The reimbursement shall be subject to the same interest, penalty, and collection provisions as any other reimbursement of contributions provided for under this chapter.

     (c)  Notwithstanding any law to the contrary, no benefit charges that are reimbursable under this section shall be included in an employer's benefit charges for any purpose in any rating period.

     (d)  For purposes of this section, the term "benefit ratio" means the quotient obtained by dividing the total benefits charged to the employer's record for the consecutive calendar quarters by the total of the employer's taxable payrolls for the same period.

     §383-F  Plan renewals.  (a)  Any employer who desires to renew, without any modifications, either a plan that was approved under section 383-A or a plan whose modifications were subsequently approved under section 383-B shall submit, within five days prior to the expiration of the plan, a request for renewal of the plan to the director upon forms developed by the director.

     (b)  Any employer who desires to renew, with modifications, either a plan that was approved under section 383-A or a plan whose modifications were subsequently approved under section 383-B shall submit, within thirty days prior to the expiration of the plan, a request for renewal of the plan to the director upon forms developed by the director.  The request shall state the modifications to be made to the plan.

     (c)  Any request submitted to the director under either subsection (a) or (b) shall be deemed approved upon filing, unless disapproved by the director in writing prior to the expiration of the plan.

     (d)  If no request for renewal is received by the director within the time period specified in subsection (a) or (b), the director shall deem the plan to have expired on its expiration date.

     §383-G  Inapplicability of part.  This part shall not apply to the following:

     (1)  The State, any of its political subdivisions, or any instrumentality of the State or its political subdivisions in their respective capacities as employers; or

     (2)  Seasonal employment or employment that is intermittent in nature."

Part II.

Repeal of Act 170, Session Laws of Hawaii 2009

     SECTION 3.  Section 383-29, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  An unemployed individual shall be eligible to receive benefits with respect to any week only if the department finds that:

     (1)  The individual has made a claim for benefits with respect to that week in accordance with rules the department may prescribe [and with section 383-29.7 for partially unemployed individuals];

     (2)  The individual has registered for work[, as defined in section 383-1,] at, and thereafter continued to report[,] at, an employment office in accordance with rules the department may prescribe, except that the department, by rule, may waive or alter either or both of the requirements of this paragraph [for partially unemployed individuals pursuant to section 383-29.8,] as to individuals attached to regular jobs, and as to other types of cases or situations with respect to which it finds that compliance with those requirements would be oppressive, or would be inconsistent with the purpose of this chapter; provided that no rule shall conflict with section 383-21;

     (3)  The individual is able to work and is available for work; provided that no claimant shall be considered ineligible with respect to any week of unemployment for failure to comply with this paragraph if the failure is due to an illness or disability, as evidenced by a physician's certificate, which occurs during an uninterrupted period of unemployment with respect to which benefits are claimed and no work which would have been suitable prior to the beginning of the illness and disability has been offered the claimant;

     (4)  The individual has been unemployed for a waiting period of one week within the individual's benefit year.  No week shall be counted as a waiting period:

         (A)  If benefits have been paid with respect thereto;

         (B)  Unless the individual was eligible for benefits with respect thereto as provided in this section and section 383-30, except for the requirements of this paragraph;

     (5)  In the case of an individual whose benefit year begins:

         (A)  On or after January 2, 1966, but prior to October 1, 1989, the individual has had during the individual's base period a total of fourteen or more weeks of employment, as defined in section 383-1, and has been paid wages for insured work during the individual's base period in an amount equal to at least thirty times the individual's weekly benefit amount as determined under section 383-22(b).  For the purposes of this subparagraph, wages for insured work shall include wages paid for services:

              (i)  Which were not employment, as defined in section 383-2, or pursuant to an election under section 383-77 prior to January 1, 1978, at any time during the one-year period ending December 31, 1975; and

             (ii)  Which are agricultural labor, as defined in section 383-9 except service excluded under section [[]383-7(a)(1)[]], or are domestic service except service excluded under section [[]383-7(a)(2)[]]; except to the extent that assistance under Title II of the Emergency Jobs and Unemployment Assistance Act of 1974 was paid on the basis of those services;

         (B)  On and after October 1, 1989, to January 4, 1992, the individual has been employed, as defined in section 383-2, and has been paid wages for insured work during the individual's base period in an amount equal to not less than thirty times the individual's weekly benefit amount, as determined under section 383-22(b), and the individual has been paid wages for insured work during at least two quarters of the individual's base period; provided that no otherwise eligible individual who established a prior benefit year under this chapter or the unemployment compensation law of any other state, shall be eligible to receive benefits in a succeeding benefit year until, during the period following the beginning of the prior benefit year, that individual worked in covered employment for which wages were paid in an amount equal to at least five times the weekly benefit amount established for that individual in the succeeding benefit year; and

         (C)  After January 4, 1992, the individual has been employed, as defined in section 383-2, and has been paid wages for insured work during the individual's base period in an amount equal to not less than twenty-six times the individual's weekly benefit amount, as determined under section 383-22(b), and the individual has been paid wages for insured work during at least two quarters of the individual's base period; provided that no otherwise eligible individual who established a prior benefit year under this chapter or the unemployment compensation law of any other state, shall be eligible to receive benefits in a succeeding benefit year until, during the period following the beginning of the prior benefit year, that individual worked in covered employment for which wages were paid in an amount equal to at least five times the weekly benefit amount established for that individual in the succeeding benefit year.

          For purposes of this paragraph, wages and weeks of employment shall be counted for benefit purposes with respect to any benefit year only if the benefit year begins subsequent to the dates on which the employing unit by which the wages or other remuneration, as provided in the definition of weeks of employment in section 383-1, were paid has satisfied the conditions of section 383-1 with respect to becoming an employer.

              Effective for benefit years beginning January 1, 2004, and thereafter, if an individual fails to establish a valid claim for unemployment insurance benefits under this paragraph, the department shall make a redetermination of entitlement based upon the alternative base period, as defined in section 383-1; provided further that the individual shall satisfy the conditions of section 383-29(a)(5) that apply to claims filed using the base period, as defined in section 383-1, and the establishment of claims using the alternative base period shall be subject to the terms and conditions of sections 383-33 and 383-94; and

     (6)  Effective November 24, 1994, an individual who has been referred to reemployment services pursuant to the profiling system under section 383-92.5 shall participate in those services or in similar services.  The individual may not be required to participate in reemployment services if the department determines the individual has completed those services, or there is justifiable cause for the claimant's failure to participate in those services.

     For the purposes of this subsection, employment and wages used to establish a benefit year shall not thereafter be reused to establish another benefit year."

     SECTION 4.  Section 383-1, Hawaii Revised Statutes, is amended by deleting the definitions of "attached to a regular employer", "full-time hours", "partial unemployment", and "registered for work".

     [""Attached to a regular employer" means:

     (1)  The employee is being offered work each week by the employee's regular employer; or

     (2)  If no work is being offered:

         (A)  The employer is maintaining the individual on the payroll by paying for a medical insurance plan or by maintaining the employee's sick leave or vacation credits; or

         (B)  There is a definite return to work date with the same employer within eight weeks.

     "Full-time hours" or "full-time work" means a forty-hour work week unless regarded otherwise according to the standard practice, custom, or agreement in a particular trade, occupation, or business.

     "Partial unemployment" or "partially unemployed" means the unemployment of any individual who, during a particular week, was still attached to that individual's regular employer, had no earnings or earned less than that individual's weekly benefit amount, and who worked less than or did not work that individual's normal, customary full-time hours for the individual's regular employer because of a lack of full-time work.

     "Registered for work" or "registration for work" means that an individual shall provide information to the employment office to be posted on the department's internet job-matching system, including but not limited to the individual's name, job skills, education, training, prior employment history and work duties, preferred working conditions, occupational licenses, and other relevant occupational information to facilitate work search efforts by the individual and increase job referrals by the employment office.  The information shall be posted with the department's assistance or independently by the individual.  The employment office shall provide the necessary information to the unemployment office for purposes of determining that the individual's registration for work requirements has been met."]

     SECTION 5.  Section 383-29.6, Hawaii Revised Statutes, is repealed.

     ["[§383-29.6]  Partial unemployment; eligibility.  A new claim or an initial additional claim for partial unemployment benefits may be filed as the department prescribes for any week only if the individual:

     (1)  Is a full-time worker;

     (2)  Is attached to a regular employer, as defined in section 383-1;

     (3)  Worked less than or did not work the individual's normal, customary full-time hours, as defined in section 383-1, for that week;

     (4)  Had no earnings or earned less than the individual's weekly benefit amount for that week; and

     (5)  Was unemployed due to a lack of full-time work, as defined in section 383-1, for that week."]

     SECTION 6.  Section 383-29.7, Hawaii Revised Statutes, is repealed.

     ["[§383-29.7]  Partial unemployment; claim filing requirements, determinations.  (a)  Claims for partial unemployment shall be filed according to section 383-32.  For partially unemployed individuals, a new claim may be taken within twenty-eight days from the week-ending date of the first week of partial unemployment for which the claim is filed; provided that an individual shall not be required to file a claim earlier than two weeks from the date wages are paid for the claim period.

     (b)  Continued claim certifications for partial benefits shall be filed as follows:

     (1)  An individual may file a continued claim certification for partial unemployment benefits in person, by mail, by telephone, or by using other alternative claim filing procedures as instructed or authorized by the department and in the manner prescribed by the department with respect to each week of the individual's partial unemployment.  A continued claim certification shall be filed in the same manner as prescribed in rules of the department for continued claim certifications for total or part-total unemployment benefits and not later than twenty-eight days from the end of the week for which the individual claims benefits; provided that an individual shall not be required to file a continued claim certification earlier than two weeks from the date wages are paid for a claim period.

     (2)  If, after a week of partial unemployment, eight or fewer consecutive weeks of total unemployment follow the week of partial unemployment, the weeks of total unemployment may be deemed weeks of partial unemployment.  However, if total unemployment extends beyond eight consecutive weeks, the individual shall be deemed totally unemployed.

     (3)  Notwithstanding paragraph (2), the department may extend partial unemployment beyond eight consecutive weeks of total unemployment under conditions including but not limited to:

         (A)  The individual is retained in an employer-employee relationship;

         (B)  The individual is under obligation to reserve services for the employer; and

         (C)  The individual has a definite or reasonably imminent return to work date."]

     SECTION 7.  Section 383-29.8, Hawaii Revised Statutes, is repealed.

     ["[§383-29.8]  Partial unemployment; waivers.  (a)  The registration for work requirements under section 383-29(a) may be waived for individuals who are partially unemployed, as defined in section 383-1.

     (b)  An individual may be exempted from the work search requirements as determined by rules of the department, or be subject to modified work search requirements as authorized by the department if the individual is waived from the registration for work requirements, as defined in section 383-1."]

     SECTION 8.  Section 383-29.9, Hawaii Revised Statutes, is repealed.

     ["[§383-29.9]  Partial unemployment; reporting requirements.  (a)  An employer to whom a claimant for partial unemployment is still attached shall submit verification of earnings and satisfy all low earnings reporting requirements in subsection (b) and rules of the department for each week that the claimant certifies for partial unemployment benefits.

     (b)  Low earnings reports shall be submitted as follows:

     (1)  Whenever, during any weekly pay period in an individual's benefit year, an individual has worked less than full-time hours for the regular employer to which the individual is attached, and the individual's earnings are less than the individual's current weekly benefit amount, the individual's employer, upon request by the department shall:

         (A)  Enter the individual's name, social security account number, gross earnings, week-ending date, and the reasons for the individual's reduced work week on a form provided or approved by the department and return the form to the unemployment insurance office as instructed within five working days after the notice of an individual's benefit amount has been mailed to the employer as to all prior weeks for which benefits are claimed.  Thereafter, during the benefit year, the employer shall report within five working days after the end of each week or weekly pay period for which the low earnings reports are required; or

         (B)  Furnish the individual personally with the information on a form provided or approved by the department and the individual shall be responsible to submit the report to the unemployment insurance office within five working days after the end of each week or weekly pay period or as instructed by the department.

     (2)  If the employer or individual fails to submit the low earnings report as prescribed in paragraph (1)(A) or (B) within the time specified by the department, the department shall determine the individual's eligibility for any week's benefits claimed based on the individual's certification of employment and earnings."]

     SECTION 9.  Act 170, Session Laws of Hawaii 2009, is repealed.

Part III.

     SECTION 10.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 11.  In codifying the new sections added by section 2 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 12.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 13.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Unemployment Insurance; WorkShare Program

 

Description:

Establishes a WorkShare Program under the unemployment insurance laws under which workers are downsized to part-time status and are able to receive partial unemployment benefits.  Repeals Act 170, Session Laws of Hawaii 2009, on partial unemployment.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.