EMPLOYMENT SECURITY DEPARTMENT

[Filed July 31, 2020, 10:08 a.m.]

Title of Rule and Other Identifying Information: Technical corrections to WAC 192-170-010, 192-320-070, 192-320-075, 192-320-080, 192-320-081, 192-320-082, 192-320-083, and 192-320-084.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule change corrects numbering within the WAC created from rules adopted in WSR 20-11-022 and 20-10-056. It also corrects cross-references to subsections of RCW 50.29.021, which was amended in 2020 by the legislature in SHB 2613, section 3, chapter 86, Laws of 2020.

Reasons Supporting Proposal: WSR 20-11-022 and 20-10-056 each went into effect on July 5, 2020. The amended rule will correct internal references within WAC 192-170-010. SHB 2613, chapter 86, Laws of 2020, went into effect on June 11, 2020. The amended rule will correct cross-references to a statute amended by that bill.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to the employment security department (ESD).

Statute Being Implemented: RCW 50.20.010, 50.20.230, and 50.20.240.

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

Name of Proponent: ESD, governmental.

Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, 360-890-9579.

This notice meets the following criteria to use the expedited adoption process for these rules:

Corrects typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

Content is explicitly and specifically dictated by statute.

Explanation of the Reason the Agency Believes the Expedited Rule-Making Process is Appropriate: The rule change corrects numbering within the WAC created from rules adopted in WSR 20-11-022 and 20-10-056. It also corrects cross-references to subsections of RCW 50.29.021, which was amended in 2020 by the legislature in SHB 2613, section 3, chapter 86, Laws of 2020.

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Joshua Dye, ESD, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, fax 844-652-7096, email rules@esd.wa.gov, TTD [TDD] relay 711, AND RECEIVED BY October 5, 2020.

AMENDATORY SECTION(Amending WSR 20-11-022, filed 5/13/20, effective 7/5/20)

WAC 192-170-010Availability for work—RCW 50.20.010.

(1) In general, the department will consider you available for work if you:

(a) Are willing to work full-time, part-time, and accept temporary work during all of the usual hours and days of the week customary for your occupation.

(i) You are not required to be available for part-time or temporary work if it would substantially interfere with your return to your regular occupation.

(ii) The requirement to be available for full-time work does not apply under the circumstances described in WAC 192-170-050 (1)(b) or 192-170-070;

(b) Are capable of accepting and reporting for any suitable work within the labor market in which you are seeking work;

(c) Do not impose conditions that substantially reduce or limit your opportunity to return to work at the earliest possible time;

(d) Are available for work during the hours customary for your trade or occupation; and

(e) Are physically present in your normal labor market area, unless you are actively seeking and willing to accept work outside your normal labor market.

(2) (([))You are considered available for work if you are an active registered electrical apprentice in an approved electrical apprenticeship program under chapter 49.04 RCW and chapter 296-05 WAC.

(3)((])) You are not considered available for work if you fail or refuse to seek work as required in a directive issued by the department under WAC 192-180-010.

(((3)))(4) If you are physically located outside of the United States, Puerto Rico, or the U.S. Virgin Islands, the department will consider you available for work if you meet the requirements of subsections (1) and (2) of this section, and:

(a) You are legally authorized to work in the country in which you are physically located;

(b) You are immediately available for work in the United States; or

(c) You are a spouse or domestic partner of a member of the United States Armed Forces and you are legally authorized to work within the foreign military base where your spouse or domestic partner is stationed.

AMENDATORY SECTION(Amending WSR 10-23-064, filed 11/12/10, effective 12/13/10)

WAC 192-320-070What conditions apply for relief of benefit charges due to a voluntary quit? (RCW 50.29.021.)

(1) A contribution-paying base year employer, who has not been granted relief of charges under RCW 50.29.021(((3)))(2), may request relief of charges for a voluntary quit not attributable to the employer under RCW 50.29.021(((4)))(3) and WAC 192-320-065. This section does not apply to local governments.

(2) Reasons for a voluntary quit not attributable to the employer. A claimant may have been denied unemployment benefits for voluntarily quitting work without good cause, but subsequently requalify for unemployment benefits through work and earnings. Even if the claimant has requalified for benefits, the following reasons for leaving work will be considered reasons not attributable to the employer:

(a) The claimant's illness or disability or the illness, disability or death of a member(s) of the claimant's immediate family;

(b) The claimant's domestic responsibilities;

(d) Relocating for a spouse's or domestic partner's employment;

(e) Starting or resuming school or training;

(f) Being in jail;

(g) The distance to the job site when the job was accepted and the distance at the time of the quit remained the same; or the job location may have changed but the distance traveled or difficulty of travel was not increased;

(h) Being dissatisfied with wages, hours or other working conditions generally known when the job was accepted; and the working conditions are determined suitable for the occupation in the claimant's labor market; and

(i) Separation necessary to protect the claimant or any member of the claimant's immediate family from domestic violence or stalking; and

(j) Entry into an apprenticeship program approved by the Washington state apprenticeship training council.

(3) Reasons for a voluntary quit considered attributable to employer are those work-related factors of such a compelling nature as to cause a reasonably prudent person to leave employment. The work factors must have been reported to the employer if the employer has reasons not to be aware of the conditions, and the employer failed to improve the factors within a reasonable period of time. The reason for quitting may or may not have been determined good cause for voluntarily leaving work under RCW 50.20.050. For benefit charging purposes, however, such work-related factors may include, but are not limited to:

(a) Change in work location which causes an increase in distance and/or difficulty of travel, but only if it is clearly greater than is customary for workers in the individual's classification and labor market;

(b) Deterioration of work site safety provided the employee has reported such safety deterioration to the employer and the employer has failed to correct the hazards within a reasonable period of time;

(d) Unreasonable hardship on the health or morals of the employee;

(e) Reductions in hours;

(f) Reduction in pay;

(g) Notification of impending layoff; and

(h) Other work-related factors the commissioner considers pertinent.

AMENDATORY SECTION(Amending WSR 04-23-058, filed 11/15/04, effective 12/16/04)

WAC 192-320-075Charges to the separating employer—RCW 50.29.021 (((2)))(1)(c).

(1) If a claimant voluntarily quits work to accept a job with a new employer, one hundred percent of benefits paid on the claim will be charged to the new employer when this new employer is the claimant's last employer, a base period employer, and a contribution-paying employer.

(2) If a claimant quits work because of the working conditions listed in this subsection, the employer from whom the separation occurred will be charged for one hundred percent of benefits paid on the claim if the employer is the claimant's last employer, a base period employer, and a contribution-paying employer. These working conditions include:

(a) A reduction in the individual's usual compensation of twenty-five percent or more under WAC 192-150-115;

(b) A reduction in the individual's usual hours of twenty-five percent or more under WAC 192-150-120;

(c) A change in the work location which caused a substantial increase in distance or difficulty of travel under WAC 192-150-125;

(d) A deterioration in the individual's worksite safety under WAC 192-150-130;

(e) Illegal activities in the individual's worksite under WAC 192-150-135; or

(f) The individual's usual work was changed to work that violates the individual's religious convictions or sincere moral beliefs under WAC 192-150-140.

(3) Benefits based on wages paid by the following entities will not be charged to the experience-rating account of the separating employer as described in subsections (1) and (2) if they were earned:

(a) In another state;

(b) From a local government employer;

(d) From any branch of the United States military.

AMENDATORY SECTION(Amending WSR 16-21-013, filed 10/7/16, effective 11/14/16)

WAC 192-320-080Overpayments caused by incorrect reporting of wages and hours—RCW 50.12.070 (2)(b) and 50.29.021 (((3)(a)))(4).

(1) When an employer incorrectly reports an individual's wages or hours, and the claim becomes invalid due to a later correction in wages or hours, the department will charge that employer one hundred percent of benefits paid to that individual, except as provided in subsection (3) of this section.

(2) When an employer incorrectly reports an individual's wages and a claimant's weekly benefit amount or maximum benefits payable is reduced due to a later correction in wages, the department will charge that employer for the benefits that should not have been paid, but nonetheless were paid as a result of the employer's incorrect reports, except as provided in subsection (3) of this section.

(3) This section does not apply to the entities listed below. The department will charge only for the percentage of benefits that represent their percentage of base period wages. These include wages earned:

(a) In another state;

(b) From a local government employer;

(d) From any branch of the United States military.

AMENDATORY SECTION(Amending WSR 13-24-108, filed 12/3/13, effective 1/3/14)

WAC 192-320-081What constitutes an "event" for the purpose of determining if there is a pattern of failing to respond timely or adequately?—RCW 50.29.021(((6)))(5).

(1) An event occurs if a benefit overpayment is created and the employer or the employer's agent significantly contributed to the overpayment by failing to respond timely or adequately without good cause to the department's written request for information relating to a claim.

(2) When deciding if an event has occurred, there must be a decision made by the department resulting in a benefit overpayment.

(3) An event may occur even if the employer is not in the base year of the claim.

(4) The department must examine past events which contributed to benefit overpayments when deciding if a pattern exists.

AMENDATORY SECTION(Amending WSR 13-24-108, filed 12/3/13, effective 1/3/14)

WAC 192-320-082How will the department determine good cause exists for failing to respond timely or adequately?—RCW 50.29.021(((6)))(5).

(1) The department may find that good cause exists in certain situations when the employer fails to respond due to an unforeseen event outside of the employer's or employer's agent's control, such as:

(a) The death or serious illness of the employer;

(b) Destruction of the employer's place of business or business records not caused by, or at the direction of, the employer or the employer's agent;

(2) The employer is responsible to provide all pertinent facts and evidence or documentation for the department to determine good cause.

AMENDATORY SECTION(Amending WSR 13-24-108, filed 12/3/13, effective 1/3/14)

WAC 192-320-083What is a written request for information?—RCW 50.29.021(((6)))(5).

For the purposes of this chapter, a written request for information relating to a claim is a paper or electronic transmission by the department requesting information from an employer or an employer's agent.

AMENDATORY SECTION(Amending WSR 13-24-108, filed 12/3/13, effective 1/3/14)

WAC 192-320-084What is an employer's agent?—RCW 50.29.021(((6)))(5).

For the purposes of this chapter, the employer's agent is the employer's designated representative responsible for providing information to the department.