WSR 08-23-024

PROPOSED RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed November 7, 2008, 12:01 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-14-160.

Title of Rule and Other Identifying Information: WAC 192-150-170 Meaning of good cause -- RCW 50.20.050(2). The proposed new rule specifies the circumstances under which an individual may establish good cause for voluntarily leaving work other than those good cause reasons enumerated in the statute. WAC 192-16-009 is repealed.

Hearing Location(s): Employment Security Department, Maple Leaf Conference Room, 212 Maple Park, Olympia, WA, on April 7, 2009, at 10:00 a.m.

Date of Intended Adoption: April 17, 2009.

Submit Written Comments to: Pamela Ames, Agency Rules Coordinator, Employment Security Department, P.O. Box 9047, Olympia, WA 98507-9047, e-mail pames@esd.wa.gov, fax (360) 902-9569, by April 6, 2009.

Assistance for Persons with Disabilities: Contact Beverly Peterson by April 6, 2009, TTY (360) 902-9569 or (360) 902-9234.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This filing adopts a new rule in chapter 192-150 WAC, Job separations. The rule describes the conditions under which an individual may establish good cause for voluntarily leaving work for reasons other than the eleven enumerated in statute. WAC 192-16-009 is repealed. It lists the factors under which an individual could establish good cause for quitting work prior to January 1, 2004, and is obsolete.

Reasons Supporting Proposal: On June 19, 2008, the Washington supreme court issued a published opinion holding that the list of eleven reasons listed in RCW 50.20.050(2) as constituting good cause for voluntarily leaving work was not exclusive. The court held that the department has the responsibility to consider whether other factors constitute the requisite good cause. Existing rules address only the eleven good cause reasons listed in the statute. The proposed rule explains the other factors that will be considered by the department, as required by the court.

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

Statute Being Implemented: RCW 50.20.050.

Rule is necessary because of state court decision, Spain v. ESD (79878-8) consolidated with Batey v. ESD (80309-9).

Name of Proponent: Employment security department, governmental.

Name of Agency Personnel Responsible for Drafting: Juanita Myers, 212 Maple Park, Olympia, (360) 902-9665; Implementation and Enforcement: Nan Thomas, 212 Maple Park, Olympia, (360) 902-9303.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule is mandated under the Washington supreme court's ruling. Any impact created by the rule affects all businesses, not just small businesses. Separations from work based on undue hardship to the employee constitute only about 1-2% of voluntary quits.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Juanita Myers, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, phone (360) 902-9665, fax (360) 902-9799, e-mail jmyers@esd.wa.gov.

November 7, 2008

Paul Trause

Deputy 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.

(2) Other factors constituting good cause -- RCW 50.20.050 (2)(a). The department may 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 subsection (3) 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.

(3) Unreasonable hardship. In addition to the good cause reasons listed in RCW 50.20.050 (2)(b), 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-worker(s) 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.

(3) 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.

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Reviser's note: The typographical error 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