DEPARTMENT OF CORRECTIONS

These rules and regulations are adopted pursuant to and in accordance with chapter 34.05 RCW. The purpose is to provide standards and procedures ((for the operation of the division of institutional industries)) necessary to ensure the implementation of a comprehensive offender work program. (See RCW 72.09.015(32).) The headings and captions for the above classes are used for convenience only and do not constitute a part hereof. The use of the term "class" to identify a work program does not restrict the department to a singular description of an offender work program within that class or the use of other offender work programs authorized by separate statute. The secretary may adopt policies providing further guidance for establishing, among other things, offender participation eligibility and security requirements for each class of work program.

(10) "Institutional industries" means the program within the department of corrections charged with developing and managing comprehensive work programs to provide work skills, work experience and exposure to the work ethic for offenders under the jurisdiction of the department.)) (1) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time, or imposed as part of a sentence, and served in the community subject to controls placed on the offender's movement and activities by the department. (See RCW 9.94A.030.)

In order to provide a comprehensive work program the department, in following the recommendation of the legislature, has adopted the following classes of work programs ((are adopted)) and made variations thereof:

(1) The employer model industries in this class shall be operated and managed in total or in part by any for-profit or nonprofit corporation pursuant to an agreement between the corporation and the department. The corporation shall produce goods or services for sale to both the public and private sector.

(2) The customer model industries in this class shall be operated and managed by the department to provide Washington state manufacturers or businesses with products or services currently produced or provided by out-of-state or foreign suppliers.

(3) The department shall review these proposed industries, including any potential new Class I industries work program or the significant expansion of an existing Class I industries work program, before the department contracts to provide such products or services. The review shall include the analysis required under RCW 72.09.115 to determine if the proposed correctional industries work program will compete with any Washington business. An agreement for a new Class I correctional industries work program, or an agreement for a significant expansion of an existing Class I correctional industries work program, that unfairly competes with any Washington business is prohibited.

(4) The department shall supply appropriate security and custody services without charge to the participating firms.

(5) Offenders who work in free venture industries shall do so at their own choice. They shall be paid a wage comparable to the wage paid for work of a similar nature in the locality in which the industry is located, as determined by the program director of correctional industries. If the program director cannot reasonably determine the comparable wage, then the pay shall not be less than the federal minimum wage.

(6) An offender who is employed in the Class I program of correctional industries shall not be eligible for unemployment compensation benefits pursuant to any of the provisions of Title 50 RCW until released on parole or discharged.

(1) The department may establish Class II industry work programs that are closely patterned after private sector industries but are designed primarily to reduce the cost of goods and services. Goods produced and services provided by Class II work programs shall be provided at a reduced cost and only be available to the department, other tax-supported agencies and nonprofit corporations.

(a) The industries selected for development within this class shall, as much as possible, match the available pool of offender work skills and aptitudes with the work opportunities in the free community. Offenders working in Class II work programs do so at their own free choice.

(b) Except as provided in RCW 39.26.251 and this section, the products and services of this class, including purchased products and services necessary for a complete product line, may be sold by the department to the following:

(i) Public agencies;

(ii) Nonprofit corporations;

(iii) Private contractors when the goods purchased will be ultimately used by a public agency or a nonprofit corporation;

(iv) An employee and immediate family members of an employee of the department;

(v) A person under the supervision of the department and his or her immediate family members; and

(vi) A licensed health professional for the sole purpose of providing eyeglasses to enrollees of the state medical program at no more than the health professional's cost of acquisition.

(c) The secretary may issue guidance governing the type and quantity of items that may be purchased for other than resale purpose and sold under (b)(iv) and (v) of this subsection.

(d) Clothing manufactured by an industry in this class may be donated to public benefit nonprofit corporations that provide clothing free of charge to low-income persons, but under no circumstance shall uniforms to be worn by correctional officers employed with the department be made or assembled by offenders under the custody of the department.

(2) Security and custody services shall be provided at state expense by the department.

(3) The department may establish Class II work programs operated and managed in partnership with a public benefit nonprofit corporation pursuant to a contract between the corporation and the department to provide goods and/or services. The work programs may provide job training to offenders and may allow those offenders who have successfully completed a public benefit nonprofit corporation's job training program to request work assignment to the work program.

(1) Class III work programs are operated by the department to support operation and maintenance needs of the facility and if possible, offset tax and other public support costs. Offenders assigned to Class III industries work in the prison to support internal prison operations.

(2) A contract is not required for Class III programs.

(3) Each prison will determine its own Class III work programs.

(4) Whenever possible, Class III programs will provide forty hours per week of basic work, or work training and experience, to help offenders to qualify for better work both within institutional industries and in the community.

(5) With approval of the secretary, a facility may, by written contract, partner with a public benefit nonprofit corporation to provide job specific training and work to offenders within the prison. Work performed by the offenders must be designed to produce goods or services for public agencies and/or public benefit nonprofit corporations at a reduced cost.

After completion of training, offenders may request assignment to the Class III program in the prison in which they received job specific training. Offenders assigned to such Class III programs may be required by the program, to fulfill occasional job related work requirements outside of the prison. Offenders approved for such off-site Class III work will be:

(a) Approved, in advance, by the prison superintendent or designee, to leave the prison grounds;

(b) Escorted by, and under the supervision of, a correctional officer at all times;

(c) Required to return to the prison the same day. Overnight absences will not be permitted; and

(d) Covered by the department offender health plan in the event of illness or injury while away from the prison.

(6) The department will:

(a) Screen and select the offenders to work in Class III programs based upon eligibility criteria developed by the department;

(b) At state expense, provide the management, work supervision, security and custody services required for all Class III programs; and

(c) Compensate offenders for work in Class III programs.

(i) The compensation paid to offenders working under Class III job descriptions shall be the same across all prisons for work that utilizes the same or similar job descriptions; and

(ii) Compensation will be paid to offenders in accordance with the payment scale established by the department for Class III work.

(7) Offenders working in Class III work programs are not eligible for industrial insurance benefits. (See RCW 72.60.102.)

Offenders in Class IV work status reside in facilities contracted for, owned or licensed by the department and participate in programs that have both education and work components.

(1) Prisons may provide two types of Class IV services. The first or standard type (standard), will constitute the majority of Class IV work and be paid for by the recipient of the services. The second and far less frequent type of Class IV service, a "good-will project" (project), will be paid for by the department.

(2) The secretary or designee will determine the criteria for Class IV good-will projects.

(3) Class IV services may be initiated by the department or provided at the request of a public agency or a public benefit nonprofit corporation.

(4) Class IV services are performed in the community, generally in the county in which the prison is located.

(5) Offenders in the same facility, who perform Class IV work utilizing the same or similar job descriptions, shall be compensated equally for the services that they provide.

(6) Class IV services do not require skilled labor, are not performed on private property, unless owned or operated by a public benefit nonprofit corporation, and have minimal negative impact on existing private industries or the labor force in the county where the service is provided.

(7) For standard Class IV services:

(a) The department will require:

(i) A master contract, written with program input, in the department's office of contracts and legal affairs and signed by the department secretary or contracts administrator and an authorized representative of the public agency or public benefit nonprofit corporation requesting the work; and

(ii) The master contract is signed by both parties before a work project description, which operates under the master contract to detail the responsibilities of each party for each project, is signed and services may begin.

(b) The public agency or public benefit nonprofit corporation that requests/receives the services will:

(i) Sign a Class IV master contract and, for each distinct project, sign a work project description under that master contract;

(ii) Provide relevant job specific and site specific safety training to offenders so that they can safely perform the required work;

(iii) At no cost to the department, supervise the project and direct the work performed;

(iv) Pay the department directly:

(A) At the then current state mileage rate, for transporting offenders to and from the worksite each day; and

(B) Offender compensation for the work performed.

(v) Pay the cost of worker's compensation insurance coverage for each offender providing services, directly to the Washington state department of labor and industries.

(vi) At the start of each calendar quarter, report the total number of offender service hours received during the previous quarter, to the department of labor and industries.

(8) For good-will projects the department will:

(a) Require a written and signed "project agreement" before offenders may begin work. The project agreement template:

(i) Is available from DOC contracts and legal affairs for completion and signature at the facility;

(ii) Must be signed by the prison superintendent or designee and an authorized representative of the public benefit nonprofit or public agency; and

(iii) Sent to DOC contracts and legal affairs, within two calendar days after it is signed by both parties.

(b) At state expense, provide the management, work supervision, security and custody services required;

(c) Compensate offenders for work performed;

(d) Pay department of labor and industries directly for offender worker's compensation insurance coverage for each offender providing services.

(e) At the start of each calendar quarter, report the total hours of offender good-will project services provided during the previous quarter to department of labor and industries; and

(f) A facility may, at its own discretion for a specific project, conduct the advance hazardous conditions and/or materials inspection itself or waive the requirement. Any waiver of the requirement will be based upon facility experience with the project site or the work to be performed.

(9) For all Class IV services:

(a) The department will:

(i) Screen and select the offenders for work crews based upon eligibility criteria developed by the department;

(ii) Review the public agency or public benefit nonprofit's hazardous conditions/materials report to assess whether to provide the requested services or require site remediation by the property owner before offenders begin the work;

(iii) Provide offenders with the necessary job specific protective clothing, as needed;

(iv) Transport offenders to and from worksites;

(v) Provide custody and security supervision of the offenders; and

(vi) Provide or coordinate the educational components of the program.

(b) The public agency or public benefit nonprofit corporation that requests/receives the services will conduct an advance hazardous conditions and materials assessment, in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, for each distinct project and report the results, in writing, to the department;

(10) Class IV correctional industries programs operated in work camps established pursuant to RCW 72.64.050 are managed under separate intergovernmental and local agreements and are exempt from these requirements.

(1) Participants in this class are offenders who are:

(a) In court ordered community restitution programs;

(b) In work release status; or

(c) Under community supervision or custody.

(2) Class V programs require a master contract, written in the department's office of contracts and legal affairs and signed by the department secretary or contracts administrator and an authorized representative of the public agency or public benefit nonprofit corporation requesting the work. The master contract must be signed by both parties before a work project description, which operates under the master contract to detail the responsibilities of each party for each project, is signed and services may begin.

(3) Class V programs may be operated by the department or by another public agency. Services in this class may only be provided to public agencies or to public benefit nonprofit corporations. The department may, by written contract, operate Class V crews that include offenders under the jurisdiction of other governmental entities. The department's authority over offenders under the jurisdiction of other governmental entities will be limited to that which is necessary for those offenders to participate on department Class V crews.

(4) When Class V programs are operated by the department, the department will:

(a) Transport offenders to and from worksites;

(b) Provide custody and security supervision of the offenders;

(c) Review the hazardous conditions/materials report to assess whether to provide the requested services or require site remediation before offenders begin the work; and

(d) Provide offenders with job specific personal protection clothing, as needed.

(5) The public agency or public benefit nonprofit corporation that receives the services will:

(a) Conduct an advance hazardous conditions and materials assessment, in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, for each distinct project, and, in writing, report the results to the department;

(b) Provide relevant job specific and site specific safety training to offenders so that they can safely perform the required work;

(c) At no cost to the department, supervise the project and direct the work performed by the offenders;

(d) Pay the department, at the then current state mileage rate, for transporting offenders to and from the project site each day; and

(e) Pay the Washington state department of labor and industries directly for the cost of worker's compensation insurance coverage for every offender providing services. (See WAC 137-80-080 and RCW 51.12.045.)

(1) The ((program administrator)) director or his/her designee may sell all articles, materials, and supplies authorized by statute to be produced or manufactured in correctional institutions to any state agency, political subdivision of the state or as otherwise authorized by statute.

(2) The secretary shall require those institutions under his/her direction to give preference to those articles, materials, and supplies produced or manufactured by ((institutional)) correctional industries when purchases are made for institution needs.

(3) The ((program administrator)) director may cause to be prepared annually, at such times he/she may determine, lists containing the descriptions of all articles and supplies manufactured and produced in state correctional institutions; copies of such list shall be sent to the supervisor of purchasing and to all departments, institutions and agencies of the state of Washington.

Except for any sum recommended by the ((institutional industries board of directors)) committee to be returned to the state general fund, all net profits from institutional industries shall be placed in a special revolving fund (Class II account) and shall be used exclusively, without appropriation, in the expansion and improvement of Class II industries.

The ((program administrator)) director shall cause to be periodically prepared and distributed to a central location in each institution a list of ((prison)) correctional industries' and programs' job opportunities. This list shall include, but not be limited to, job descriptions and the educational and skill requirements of each job and shall be made available to institution personnel ((of the institution)), institutional industries and ((to the inmates)) offenders.

(1) As required by the state division of occupational safety and health (DOSH), participants in offender work programs will be provided a safe and healthy workplace free from recognized hazards.

(2) All correctional industries and programs will adhere to relevant federal and state safety laws as well as to departmental safety policies and requirements.

(3) The department will determine whether or not offenders may perform the requested services in Classes IV and V. The department's determination will be based upon the written results of a hazardous conditions and materials assessment, performed in accordance with chapter 49.17 RCW, Washington Industrial Safety and Health Act, and conducted and provided to the department by the recipient of the offender services.

(4) Offenders in Classes I, IV, and V shall receive work and safety training and any necessary personal protective equipment (PPE), in accordance with the contract scope of work and/or the work project description.

(5) Offenders participating in Class III programs are not considered "employees" for DOSH purposes.

(6) For DOSH purposes, offenders participating in Class V programs may be considered "employees" of the public agency or public benefit nonprofit corporation for which the services were performed. (See RCW 51.12.045.)

(1) No inmate compensated for work in correctional industries shall be considered as an employee or to be employed by the state or the department.

(2) Offenders working in Classes I, II, and IV of correctional industries are eligible for industrial insurance benefits as provided by Title 51 RCW.

(3) Offenders working in Class III industries are ineligible for industrial insurance benefits.

(4) For offenders working in Class V, industrial insurance medical aid coverage will be purchased by the entity for which the offenders are performing the work. To initiate coverage, the contracting entity will complete, sign and submit directly to L&I, the L&I application for elective coverage of excluded employees (application), before the occurrence of an injury or contraction of an occupational disease, by an offender to be covered.

(a) For offenders performing community restitution work, the contracting entity will check box 10 (community service workers) of the application;

(b) For offenders in work release status or under community supervision or custody, the contracting entity will check box 9 (volunteer worker, 6901 - Community improvement project) of the application.

(5) Any premiums or assessments due under Title 51 RCW for an offender's coverage shall be the obligation of the contracting entity for which the offender is performing the work, and shall be paid directly to the department of labor and industries by the contracting entity. Except that, L&I premiums due for offenders performing Class IV good-will projects shall be paid directly to L&I by the department.

(1) Nothing in this chapter shall be construed as limiting the regulatory authority of the department of labor and industries in determining health and safety compliance and employer status for purposes of DOSH and Title 51 RCW, the issuance or review of citations or corrective actions related to health and safety compliance in the workplace provided the offender crew, or in determining responsibility for payment of fees due under Title 51 RCW.

It is understood that the responsible divisions within the department of labor and industries shall act independently in any review of claims or citations. Public agencies and public benefit nonprofit corporations that contract with the department will be responsible for safety and health conditions at the worksite, have the responsibility and the authority for ensuring that any hazardous condition is corrected, and as applicable, pay the cost of each offender's industrial insurance coverage and gratuity.

(2) The department will provide security and custody supervision of offenders to fulfill its mission to improve public safety and to maintain custody as required by state law.

The powers and authority conferred by this chapter shall be construed as limited to this chapter and nothing herein shall be construed as applying to any other offender work programs authorized by federal law or Washington state law. Neither shall anything contained herein be construed as limiting any other powers or authority of any public agency.