Section 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;(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: (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: (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";(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(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))