WSR 08-15-051

EMERGENCY RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed July 11, 2008, 2:35 p.m. , effective July 11, 2008, 2:35 p.m. ]


Effective Date of Rule: Immediately.

Purpose: On June 19, 2008, the Supreme Court of Washington overturned the court of appeals, holding that the list of good cause reasons for voluntarily leaving work in RCW 50.20.050 (2)(b) is not exclusive. Instead, the department has the authority to consider whether other reasons constitute good cause for leaving work under RCW 50.20.050 (2)(a) for the purpose of eligibility for unemployment benefits. The emergency rule is intended to implement the court's decision.

Citation of Existing Rules Affected by this Order: Repealing WAC 192-16-009.

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

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The court's ruling was effective immediately. The department's existing regulations were adopted with the understanding that the eleven reasons for quitting work enumerated in RCW 50.20.050 (2)(b) was an exclusive list. An emergency rule is needed to implement the court's decision that other factors may constitute good cause for voluntarily leaving work while permanent rules are developed in conjunction with stakeholders.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: July 11, 2008.

Karen T. Lee

Commissioner


NEW SECTION
WAC 192-150-170   Meaning of good cause -- RCW 50.20.050(2).   (1) General. RCW 50.20.050(2) provides that you will not be disqualified from receiving unemployment benefits when you voluntarily leave work for good cause. The Washington Supreme Court in Spain v. Employment Security Department held that the factors listed in RCW 50.20.050 (2)(b) are not the only circumstances in which an individual has good cause for voluntarily leaving work. While these are considered per se or stand alone good cause reasons, the court held that the department is required under RCW 50.20.050 (2)(a) to consider whether other circumstances constitute good cause for voluntarily leaving work.

(a) Stand alone good cause factors -- RCW 50.20.050 (2)(b). The following circumstances are sufficient alone to establish good cause for voluntarily leaving work. They are:

(i) Accepting a bona fide offer of work (see WAC 192-150-050);

(ii) Due to your illness or disability or the death, illness, or disability of a member of your immediate family (see WAC 192-150-055 and WAC 192-150-060);

(iii) Moving to accompany your transferred military spouse (see WAC 192-150-110);

(iv) Protecting yourself or a member of your immediate family from domestic violence or stalking (see WAC 192-150-112 and WAC 192-150-113);

(v) A reduction in your pay of twenty-five percent or more (see WAC 192-150-115);

(vi) A reduction in your hours of twenty-five percent or more (see WAC 192-150-120);

(vii) A change in your worksite resulting in increased distance or difficulty of travel (see WAC 192-150-125);

(viii) Unsafe working conditions which your employer has failed to remedy (see WAC 192-150-130);

(ix) Illegal activities at the worksite which your employer has failed to correct (see WAC 192-150-135);

(x) Changes in your usual work that violate your sincere religious or moral beliefs (see WAC 192-150-140); and

(xi) Entering an approved apprenticeship training program (see WAC 192-150-160).

(b) Other factors constituting good cause -- RCW 50.20.050 (2)(a). In addition to the factors above, the department may also determine that you had good cause to leave work voluntarily for reasons other than those listed in RCW 50.20.050 (2)(b).

(i) For separations under subsections (ii) and (iv) below, all of the following conditions must be met to establish good cause for voluntarily leaving work:

(A) You left work primarily for reasons connected with your employment; and

(B) These work-connected reasons were of such a compelling nature they would have caused a reasonably prudent person to leave work; and

(C) You first exhausted all reasonable alternatives before you quit work, unless you are able to show that pursuing reasonable alternatives would have been futile.

(ii) Substantial involuntary deterioration of the work. As determined by the legislature, RCW 50.20.050 (2)(b), subsections (v) through (x), represent changes to employment that constitute a substantial involuntary deterioration of the work.

(iii) Other changes in working conditions. Changes to your working conditions other than those included in RCW 50.20.050 (2)(b)(v)-(x) will be evaluated under WAC 192-150-150 to determine if they constitute a refusal of an offer of new work.

(iv) Unreasonable hardship. Other work-connected circumstances may constitute good cause if you can show that continuing in your employment would work an unreasonable hardship on you. "Unreasonable hardship" means a result not due to your voluntary action that would cause a reasonable person to leave that employment. The circumstances must be based on existing facts, not conjecture, and the reasons for leaving work must be significant.

Examples of work-connected unreasonable hardship circumstances that may constitute good cause include, but are not limited to, those where:

(A) Repeated behavior by your employer or co-workers creates an abusive working environment.

(B) You show that your health or physical condition or the requirements of the job have changed so that your health would be adversely affected by continuing in that employment.

(2) Commissioner Approved Training. After you have been approved by the department for Commissioner Approved Training, you may leave a temporary job you have taken during training breaks or terms, or outside scheduled training hours, or pending the start date of training, if you can show that continuing with the work will interfere with your approved training.

(3) Redetermination. Decisions issued by the department on or before the effective date of this rule that are denials for voluntarily leaving work without good cause and pending appeal at the Office of Administrative Hearings or pending review at the Commissioner's Review Office shall be returned to the department for redetermination under this rule.

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Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 192-16-009 Disqualification for leaving work voluntarily -- Meaning of good cause for claims with an effective date prior to January 4, 2004 -- RCW 50.20.050(1).

Washington State Code Reviser's Office