EMPLOYMENT SECURITY DEPARTMENT

[Filed September 11, 2019, 7:45 a.m.]

Preproposal statement of inquiry was filed as WSR 19-06-088.

Title of Rule and Other Identifying Information: Amending WAC 192-110-015, which addresses applications by standby workers, to permit claimants to backdate applications for standby.

Hearing Location(s): On October 24, 2019, at 8 - 9 a.m., at the Employment Security Department, 212 Maple Park Avenue, Commissioner's Conference Room, Olympia, WA 98501.

Date of Intended Adoption: January 10, 2020.

Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, fax 844-652-7096, by September 23, 2019.

Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email teckstein@esd.wa.gov, by September 16, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Standby, as defined in WAC 192-110-115, means a claimant is temporarily unemployed because of a lack of work but expects to return to work with their regular employer within four weeks, expects to begin full-time work with a new employer within two weeks, or is temporarily unemployed due to natural disaster.

The amendments to the standby rule are being adopted to address circumstances when claimants should be allowed to backdate applications for standby after employers confirm an expected return-to-work date. As currently written, the rule does not allow for standby claims to be backdated.

Reasons Supporting Proposal: Standby status allows both employers and employees to manage temporary layoffs with an expected return-to-work date. Under the proposed rules, claimants are eligible for unemployment benefits without the need to search for other employment. Employers are relieved of the need to recruit and train new employees because claimants are available to return to work. This allows both the claimant and the employer to avoid negative long-term effects from a short-term layoff. Allowing claimants to backdate standby also alleviates burdens on the claimant that may arise from a number of reasons, including misunderstanding the terms of the temporary layoff or receiving incorrect information regarding the filings required to receive unemployment benefits.

The ability to backdate for the convenience of the department ensures that claimants are not held liable due to circumstances within the department that are beyond the control of the claimant.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to the employment security department. RCW 50.12.042 provides specific rule-making authority regarding the requirement that unemployment claimants be able to work, available for work, and actively seek work. RCW 50.20.010 provides rule-making authority regarding benefit eligibility conditions.

Statute Being Implemented: RCW 50.20.010.

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: Scott Michael, Olympia, Washington, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, Washington, 360-902-9579.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, fax 844-652-7096, TTY relay 711, email rules@esd.wa.gov, https://esd.wa.gov/newsroom/ui-rule-making/.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. Allowing employees to backdate standby does not expand benefits for claimants. There is no projected increase in costs to employers or claimants.

Employment System Policy Director

AMENDATORY SECTION(Amending WSR 17-17-126, filed 8/22/17, effective 10/10/17)

WAC 192-110-015Applications by standby workers—RCW 50.20.010.

(1) What is "standby?"

(a) "Standby" means you are temporarily unemployed because of a lack of work but:

(i) You expect to return to work with your regular employer within four weeks; or

(ii) You expect to begin full-time work with a new employer within two weeks; or

(iii) You are temporarily unemployed due to natural disaster.

(b) You do not have to register for work or look for other work while you are on standby.

(2) How long can I be onstandby?

(a) You can ask to be on standby for up to four weeks((, beginning with the date of the request)).

(b) We will ask your employer to verify that you are on standby, including your expected return to work date:

(i) If your employer does not reply, you can be on standby for up to four weeks;

(ii) If your employer confirms you are on standby, you can be on standby until the return to work date given by your employer, subject to the limitations of (c) of this subsection;

(iii) If your employer replies that you are not on standby or do not have a return to work date within eight weeks, we will require you to immediately register for work and to look for work.

(c) Your regular employer may ask that you be placed on standby for a maximum of eight weeks (except as provided in (2)(d) below). This request must be approved by the department. We will consider the following before deciding whether to approve standby for more than four weeks:

(i) How long you have been out of work;

(ii) Whether other suitable work is available;

(iii) The impact on you and your employer if you accept other work; and

(iv) Other factors that apply to your situation.

(d) At his or her discretion, the commissioner may grant standby for more than eight weeks in a benefit year. Exceptions can be made due to natural disaster. Exceptions can also be made in other extraordinary circumstances when the employer applies in writing and shows there are conditions that apply to the business that are so unique or unusual compared to similar businesses that having their employees on standby for more than eight weeks is necessary.

(e) We can approve standby if you have obtained a definite offer of bona fide full-time work that has a probable start date within two weeks, which includes the week of the job offer and up to two additional weeks. ((If the standby request under this subsection is part of your initial claim, standby begins with the date of the request.

(f))) The job, however, must be:

(i) With a new employer or with a former employer to whom you are no longer attached as provided in subsection (3)(f) of this section; and

(ii) Covered by Title 50 RCW or the comparable laws of another state or the federal government.

(3) Are there conditions that apply to a request for standby?

(a) You must have a probable date when you will return to work for your regular employer;

(b) We will not approve standby if you only have prospects of future work with your regular employer or a promise of more work at some unspecified date;

(c) We will not approve standby with your regular employer unless the employment is covered by Title 50 RCW or the comparable laws of another state or the federal government;

(d) Except for claimants who qualify as part-time eligible workers under RCW 50.20.119, we will not approve standby if you regularly work less than full-time. For purposes of this section, "full-time" means forty hours each week or the number of hours that are full-time for your occupation and labor market area;

(e) Any week(s) that you do not qualify for benefits will not be considered as part of the maximum eight weeks of standby; and

(f) After eight consecutive weeks of unemployment, we will no longer consider you attached to that employer. You must meet the job search requirements specified by RCW 50.20.010 (1)(c) and 50.20.240.

(4) When does standby begin?

(a) Standby begins the day of your request unless your request is backdated pursuant to (b) of this subsection.

(b)(i) You may backdate your request for standby up to one week for any reason.

(ii) Your request for standby may also be backdated for the convenience of the department. "For the convenience of the department" means for the purpose of program administration; or those situations where it is difficult or impossible to accept a timely request including, but not limited to, equipment breakdowns, lack of available staff, or special handling requirements.