WSR 05-07-144

PROPOSED RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed March 23, 2005, 10:16 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-20-095.

Title of Rule and Other Identifying Information: Eligibility, job search, and suitable work requirements of individuals who left work to protect themselves or a member of their immediate family from domestic violence or stalking, and definition of terms.

Hearing Location(s): Employment Security Department, Maple Leaf Conference Room, 2nd Floor, 212 Maple Park, Olympia, WA, on May 11, 2005, at 1:30 p.m.

Date of Intended Adoption: May 20, 2005.

Submit Written Comments to: Larry Oline, Agency Rules Coordinator, P.O. Box 9046, Olympia, WA 98507-9046, e-mail loline@esd.wa.gov, fax (360) 438-3226, by May 10, 2005.

Assistance for Persons with Disabilities: Contact Mary Mendoza by May 10, 2005, TTY (360) 902-9589 or (360) 902-9281.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: New rules are adopted to clarify the factors the department will consider in determining whether an individual has established good cause for leaving work due to domestic violence or stalking. These rules define the terms "domestic violence" and "stalking" and specify the job search and suitable work requirements for these individuals.

Reasons Supporting Proposal: In 2002, the legislature amended state law to provide that individuals who voluntarily leave work to protect themselves or a member of their immediate family from domestic violence or stalking has good cause for leaving. This provision was readopted by the 2003 legislature.

Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, 50.12.042, and 50.20.010.

Statute Being Implemented: RCW 50.20.050 (2)(b)(iv).

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Employment Security Department, governmental.

Name of Agency Personnel Responsible for Drafting: Karen Malo, Olympia, Washington, (360) 902-0198; Implementation and Enforcement: Annette Copeland, Olympia, Washington, (360) 902-9390.

No small business economic impact statement has been prepared under chapter 19.85 RCW. All unemployment benefits paid to individuals who have been determined to have good cause for leaving work because of domestic violence or stalking are not charged against the individuals' employers. Costs are pooled and spread among all contribution-paying employers. Fewer than two hundred individuals per calendar year establish good cause for leaving work due to domestic violence or stalking so the cost of their benefits to individual employers is negligible.

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are interpretive, not significant legislative rules.

March 18, 2005

Karen Turner Lee

Commissioner


NEW SECTION
WAC 192-150-112   Definitions -- Domestic violence and stalking -- RCW 50.20.050 (2)(b)(iv).   To constitute good cause for leaving work, your job separation must have been necessary to protect yourself or a member of your immediate family from domestic violence or stalking.

(1) Immediate family is defined in WAC 192-150-055 and means your spouse, children (including your unborn children), stepchildren, foster children, or parents of either spouse, whether living with you or not, and other relatives who temporarily or permanently reside in your household

(2)(a) Domestic violence is defined in RCW 26.50.010. It includes the following acts committed between family or household members:

(i) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault;

(ii) Sexual assault; or

(iii) Stalking.

(b) The perpetrator of domestic violence must be a family or household member, which means:

(i) Spouses and former spouses,

(ii) Persons who have a child in common regardless of whether they have been married or have lived together at any time,

(iii) Adult persons related by blood or marriage,

(iv) Adult persons who are presently residing together or who have resided together in the past,

(v) Persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship,

(vi) Persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and

(vii) Persons who have a biological or legal parent-child relationship, including stepparents, stepchildren, grandparents, and grandchildren.

(c) "Dating relationship" means a social relationship of a romantic nature.

(3) Stalking is defined by RCW 9A.46.110. It means:

(a) Intentionally and repeatedly harassing or following another person;

(b) Placing the person being harassed or followed in fear of injury to self or property, or to another person or the property of another person;

(c) Intending to frighten, intimidate, or harass the other person;

(d) Knowing or having reason to know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.

(i) "Harass" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose.

(ii) "Repeatedly" means on two or more separate occasions.

(iii) "Follows" means deliberately maintaining visual or physical proximity to a specific person over a period of time. A finding that the alleged stalker repeatedly and deliberately appears at the person's home, school, place of employment, business, or any other location to maintain visual or physical proximity to the person is sufficient to find that the alleged stalker follows the person. It is not necessary to establish that the alleged stalker follows the person while in transit from one location to another.

(iv) "Contact" includes, in addition to any other form of contact or communication, the sending of an electronic communication to the person.

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NEW SECTION
WAC 192-150-113   Domestic violence or stalking -- RCW 50.20.050 (2)(b)(iv).   (1) As a condition of eligibility for benefits, you are not required to exhaust reasonable alternatives prior to leaving work.

(2) The amount of notice you provide to your employer will not be a factor in evaluating whether you had good cause to leave work under this section. You will not be penalized for:

(a) Failing to provide notice to your employer prior to leaving work;

(b) Providing several weeks advance notice because you are making preparations to leave the situation;

(c) Not disclosing the domestic violence or stalking to your employer;

(d) Enduring domestic violence or stalking for an extended period of time before the job separation; or

(e) Leaving work when there has not been a recent act of domestic violence or stalking, provided you had a reasonable fear of future domestic violence or stalking.

(3) The following factors will be considered in evaluating whether you had good cause to leave work under this section:

(a) Domestic violence or stalking is the primary reason you left work, even if you gave a different reason for separation to your employer;

(b) Your separation was necessary which, for purposes of this section, means you had a good faith belief that you needed to leave work based upon:

(i) Your fear of domestic violence or stalking;

(ii) Avoiding domestic violence or stalking; or

(iii) The consequences of domestic violence or stalking, including but not limited to legal proceedings, health care, counseling, child custody, or child protection matters.

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NEW SECTION
WAC 192-170-060   Suitable work factors -- Domestic violence or stalking -- RCW 50.20.050 (2)(b)(iv).   When the department decides you left work for good cause due to domestic violence or stalking, you are required to be available for suitable work to receive benefits. Suitable work is work that is in keeping with your prior experience, employment or training. Suitability of work must also include consideration of your need to address the physical, psychological, legal and other effects of domestic violence or stalking. A job is not considered suitable when it would require you to be available on a day or at a specific time that conflicts with your need to address the effects of the domestic violence or stalking.

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NEW SECTION
WAC 192-180-014   Requirements of individuals who leave work due to domestic violence or stalking -- RCW 50.20.010 (1)(c).   If you are allowed benefits because the department decides you left work for good cause due to domestic violence or stalking, you must make the number of job search contacts consistent with your need to address issues related to domestic violence or stalking. Each week you claim benefits you must demonstrate an attachment to the labor market by being able to work, available for work, and actively seeking work. To meet the work search requirement of RCW 50.20.010 (1)(c), you must make at least one job search contact or participate in at least one approved in-person job search activity each week you claim benefits.

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Washington State Code Reviser's Office