[atlas:bill]

AN ACT Relating to employment rights of members of the reserve and national guard forces called to duty; amending RCW 73.16.015, 73.16.031, 73.16.033, 73.16.035, 73.16.051, 73.16.061, and 73.16.070; and adding new sections to chapter 73.16 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 73.16 RCW to read as follows:

(1) It is the intent of the legislature to guarantee employment rights of members of the reserve and national guard forces who are called to active duty. The federal uniformed services employment and reemployment rights act of 1994 protects all such federal personnel. The legislature intends that similar provisions should apply to all such state personnel. Therefore, the legislature intends for this act to ensure protections for state-activated personnel similar to those provided by federal law for federal-activated personnel.

(2) The purposes of this chapter are to:

(a) Encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment that can result from such service;

(b) Minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

(3) Therefore, the legislature intends that the governmental agencies of the state of Washington, and all the political subdivisions thereof, should be model employers in carrying out the provisions of this chapter.

Sec. 2. RCW 73.16.015 and 1951 c 29 s 2 are each amended to read as follows:

Any veteran entitled to the benefits of RCW 73.16.010 may enforce his or her rights hereunder by civil action in ((~~the~~)) superior court((s)).

Sec. 3. RCW 73.16.031 and 1953 c 212 s 1 are each amended to read as follows:

((~~As used in RCW 73.16.031 through 73.16.061, the term:~~

~~"Resident" means any person residing in the state.~~)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Attorney general" means the attorney general of the state of Washington or any person designated by the attorney general to carry out a responsibility of the attorney general under this chapter.

(2) "Benefit," "benefit of employment," or "rights and benefits" means any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

(3) "Employer" means the person, firm, or corporation, the state and any political subdivision thereof, or any elected or appointed public official currently having control over the position that has been vacated.

(4) "Health plan" means an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or other arrangement under which health services for individuals are provided or the expenses of such services are paid.

(5) "Notice" means any written or verbal notification of an obligation or intention to perform service in the uniformed services provided to an employer by the employee who will perform such service or by the uniformed service in which such service is to be performed.

(6) "Position of employment" means any position (other than temporary) wherein a person is engaged for a private employer, company, corporation, state, municipality, or political subdivision thereof.

(7) "Qualified," with respect to an employment position, means having the ability to perform the essential tasks of the position.

(8) "Rejectee" means a person rejected because he or she is not, physically or otherwise, qualified to enter the uniformed service.

(9) "Resident" means any person residing in the state with the intent to remain other than on a temporary or transient basis.

(10) "Seniority" means longevity in employment together with any benefits of employment which accrue with, or are determined by, longevity in employment.

(11) "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full‑time national guard duty (including state-ordered active duty), and a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty.

(12) "State" means the state of Washington, including the agencies and political subdivisions thereof.

(13) "Temporary position" means a position of short duration which, after being vacated, ceases to exist and wherein the employee has been advised as to its temporary nature prior to his or her engagement.

((~~"Employer" means the person, firm, corporation, state and any political subdivision thereof, or public official currently having control over the position which has been vacated.~~

~~"Rejectee" means a person rejected because he is not, physically or otherwise, qualified to enter the service.~~))

(14) "Undue hardship," in the case of actions taken by an employer, means actions requiring significant difficulty or expense when considered in light of:

(a) The nature and cost of the action needed under this chapter;

(b) The overall financial resources of the facility or facilities involved in the provision of the action; the number of persons employed at such facility; the effect on expenses and resources; or the impact otherwise of such action upon the operation of the facility;

(c) The overall financial resources of the employer; the overall size of the business of the employer with respect to the number of its employees; and the number, type, and location of its facilities; and

(d) The type of operation or operations of the employer, including the composition, structure, and functions of the work force of such employer, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

(15) "Uniformed services" means the armed forces, the army national guard and the air national guard when engaged in active duty for training, inactive duty training, full‑time national guard duty, or state active duty, the commissioned corps of the public health service, the coast guard, and any other category of persons designated by the president of the United States in time of war or national emergency.

NEW SECTION. Sec. 4. A new section is added to chapter 73.16 RCW to read as follows:

(1) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

(2) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (a) has taken an action to enforce a protection afforded any person under this chapter, (b) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (c) has assisted or otherwise participated in an investigation under this chapter, or (d) has exercised a right provided for in this chapter. The prohibition in this subsection (2) applies with respect to a person regardless of whether that person has performed service in the uniformed services.

(3) An employee shall be considered to have engaged in actions prohibited:

(a) Under subsection (1) of this section, if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or

(b) Under subsection (2) of this section if the person's (i) action to enforce a protection afforded any person under this chapter, (ii) testimony or making of a statement in or in connection with any proceeding under this chapter, (iii) assistance or other participation in an investigation under this chapter, or (iv) exercise of a right provided for in this chapter, is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such person's enforcement action, testimony, statement, assistance, participation, or exercise of a right.

(4) An employer is not required to reemploy a person under this chapter if the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

Sec. 5. RCW 73.16.033 and 1953 c 212 s 2 are each amended to read as follows:

Any person who is a resident of this state or is employed within this state, or is employed by an employer doing business within the state, and who voluntarily or upon ((~~demand~~)) order from competent authority, vacates a position of employment to determine his or her physical fitness to enter, or, who actually does enter upon active duty or training in the Washington national guard or the national guard of any state, territory, commonwealth, possession, or district, the armed forces of the United States, or the United States public health service, shall, provided he or she meets the requirements of RCW 73.16.035, be reemployed forthwith: PROVIDED, That the employer need not reemploy such person if circumstances have so changed ((~~as to make it impossible, unreasonable, or against the public interest for him to do so~~)) such that reemployment would be impossible or unreasonable due to a change in the employer's circumstances, or would impose an undue hardship on the employer: PROVIDED FURTHER, That this section shall not apply to a temporary position.

If such person is still qualified to perform the duties of his or her former position, he or she shall be restored to that position or to a position of like seniority, status and pay. If he or she is not so qualified as a result of disability sustained during his or her service, or during the determination of his or her fitness for service, but is nevertheless qualified to perform the duties of another position, under the control of the same employer, he or she shall be reemployed in such other position: PROVIDED, That such position shall provide him or her with like seniority, status, and pay, or the nearest approximation thereto consistent with the circumstances of the case.

Sec. 6. RCW 73.16.035 and 1969 c 16 s 1 are each amended to read as follows:

(1) In order to be eligible for the benefits of ((~~RCW 73.16.031 through 73.16.061~~)) this chapter, an applicant must comply with the following requirements:

((~~(1) He~~)) (a) The applicant must furnish a receipt of an honorable, or under honorable conditions discharge, report of separation, certificate of satisfactory service, or other proof of having satisfactorily completed his or her service. Rejectees must furnish proof of orders for examination and rejection.

((~~(2) He~~)) (b) The applicant must make written or verbal application to the employer or his or her representative ((~~within ninety days of the date of his separation or release from training and service. Rejectees must apply within thirty days from date of rejection~~)) as follows:

(i) In the case of an applicant whose period of service in the uniformed services was less than thirty-one days, by reporting to the employer:

(A) Not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the applicant from the place of that service to the applicant's residence; or

(B) As soon as possible after the expiration of the eight‑hour period in (b)(i)(A) of this subsection, if reporting within that period is impossible or unreasonable through no fault of the applicant;

(ii) In the case of an applicant who is absent from a position of employment for a period of any length for the purposes of an examination to determine the applicant's fitness to perform service in the uniformed services, by reporting in the manner and time referred to in (b)(i) of this subsection;

(iii) In the case of an applicant whose period of service in the uniformed services was for more than thirty days but less than one hundred eighty-one days, by submitting an application for reemployment with the employer not later than fourteen days after the completion of the period of service or if submitting such application within such period is impossible or unreasonable through no fault of the applicant, the next first full calendar day when submission of such application becomes possible;

(iv) In the case of an applicant whose period of service in the uniformed services was for more than one hundred eighty days, by submitting an application for reemployment with the employer not later than ninety days after the completion of the period of service;

(v) In the case of an applicant who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services, at the end of the period that is necessary for the applicant to recover from such illness or injury, the applicant shall submit an application for reemployment with such employer. The period of recovery may not exceed two years. This two‑year period shall be extended by the minimum time required to accommodate the circumstances beyond the applicant's control that make reporting within the two‑year period impossible or unreasonable;

(vi) In the case of an applicant who fails to report or apply for employment or reemployment within the appropriate period specified in (b) of this subsection, the applicant does not automatically forfeit his or her entitlement to the rights and benefits conferred by this chapter, but is subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.

(c) An applicant who submits an application for reemployment shall provide to the applicant's employer, upon the request of that employer, documentation to establish that:

(i) The application is timely;

(ii) The applicant has not exceeded the service limitations set forth in this section, except as permitted under (b)(v) of this subsection; and

(iii) The applicant's entitlement to the benefits under this chapter has not been terminated pursuant to (d) of this subsection.

((~~(3)~~)) (d) If, due to the necessity of hospitalization, while on active duty, ((he)) the applicant is released or placed on inactive duty and remains hospitalized, ((he)) the applicant is eligible for the benefits of ((~~RCW 73.16.031 through 73.16.061~~)) this chapter: PROVIDED, That such hospitalization does not continue for more than one year from date of such release or inactive status: PROVIDED FURTHER, That ((he)) the applicant applies for his or her former position within ninety days after discharge from such hospitalization.

((~~(4) He~~)) (e) The applicant must return and reenter the office or position within three months after serving four years or less: PROVIDED, That any period of additional service imposed by law, from which one is unable to obtain orders relieving him or her from active duty, will not affect ((~~his~~)) reemployment rights.

(2) The failure of an applicant to provide documentation that satisfies rules adopted pursuant to subsection (1)(b) of this section shall not be a basis for denying reemployment in accordance with the provisions of this chapter if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after such reemployment, documentation becomes available that establishes that the applicant does not meet one or more of the requirements referred to in subsection (1)(c)(i), (ii), and (iii) of this section, that applicant's employer may terminate the employment of the person and the provision of any rights or benefits afforded the person under this chapter.

(3) An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available.

(4) The application in subsection (1) of this section is not required if the giving of such application is precluded by military necessity or, under all of the relevant circumstances, the giving of such notice is otherwise impossible or unreasonable. A determination of military necessity for the purposes of this subsection shall be made by the adjutant general of the state of Washington military department and is not subject to judicial review.

(5) In any proceeding involving an issue of whether (a) reemployment is impossible or unreasonable because of a change in an employer's circumstances, (b) reemployment would impose an undue hardship on the employer, or (c) the employment is for a brief, nonrecurrent period and there is no reasonable expectation that such employment would have continued indefinitely or for a significant period as provided in section 4(4) of this act, the employer has the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.

Sec. 7. RCW 73.16.051 and 1953 c 212 s 5 are each amended to read as follows:

Any person who is entitled to be restored to a position in accordance with the provisions of RCW 73.16.031, 73.16.033, 73.16.035, and 73.16.041 shall be considered as having been on furlough or leave of absence, from his or her position of employment, during his or her period of active military duty or service, and he or she shall be so restored without loss of seniority. He or she shall further be entitled to participate in insurance, vacations, retirement pay, and other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was ordered into the service; and he or she shall not be discharged from such position without cause within one year after restoration((~~: PROVIDED, That no employer shall be required to make any payment to keep insurance or retirement rights current during such period of military service~~)).

NEW SECTION. Sec. 8. A new section is added to chapter 73.16 RCW to read as follows:

(1) In any case in which a person, or the person's dependents, has coverage under a health plan in connection with the person's position of employment, including a group health plan as defined in section 607(1) of the federal employee retirement income security act of 1974, and such person is absent from such position of employment by reason of service in the uniformed services, the plan shall provide that the person may elect to continue such coverage as provided in this section. The maximum period of coverage of a person and person's dependents under such an election shall be the lesser of:

(a) The eighteen-month period beginning on the date on which the person's absence begins; or

(b) The day after the date on which the person fails to apply for or return to a position of employment, as determined under RCW 73.16.035.

(2) A person who elects to continue health plan coverage under this section may be required to pay not more than one hundred two percent of the full premium under the plan, determined in the same manner as the applicable premium under section 4980B(f)(4) of the internal revenue code of 1986, associated with such coverage for the employer's other employees, except that in the case of a person who performs service in the uniformed services for less than thirty-one days, the person may not be required to pay more than the employee share, if any, for such coverage.

(3) In the case of a health plan that is a multiemployer plan as defined in section 3(37) of the federal employee retirement income security act of 1974 (29 U.S.C. Sec. 1002(37)(A)), any liability under the plan for employer contributions and benefits arising under this subsection shall be allocated:

(a) By the plan in the manner as the plan sponsor provides; or

(b) If the sponsor does not provide:

(i) To the last employer employing the person before the period served by the person in the uniformed services; or

(ii) If the last employer is no longer functional, to the plan.

(4) Except as provided in subsection (2) of this section, in the case of a person whose coverage under a health plan was terminated by reason of service in the uniformed services, an exclusion or waiting period may not be imposed in connection with the reinstatement of such coverage upon reemployment under this chapter if an exclusion or waiting period would not have been imposed under a health plan had coverage of such person by such plan not been terminated as a result of such service. This subsection applies to the person who is reemployed and to any individual who is covered by such plan by reason of the reinstatement of the coverage of such person.

NEW SECTION. Sec. 9. A new section is added to chapter 73.16 RCW to read as follows:

(1)(a) Except as otherwise provided, in the case of a right provided pursuant to an employee pension benefit plan (including those described in sections 3(2) and 3(33) of the federal employee retirement income security act of 1974) or a right provided under any federal or state law governing pension benefits for governmental employees, the right to pension benefits or a person reemployed under this chapter shall be determined under this section.

(b) A person reemployed under this chapter shall be treated as not having incurred a break in service with the employer or employers maintaining the plan by reason of such person's period of service in the uniformed services.

(c) Each period served by a person in the uniformed services shall, upon reemployment under this chapter, be deemed to constitute service with the employer or employers maintaining the plan for the purpose of determining the nonforfeitability of the person's accrued benefits and for the purpose of determining the accrual of benefits under the plan.

(2) An employer reemploying a person under this chapter is liable to an employee pension benefit plan for funding any obligation of the plan to provide the pension benefits described in this section and shall allocate the amounts of any employer contribution for the person in the same manner and to the same extent the allocation occurs for other employees during the period of service. For purposes of determining the amount of such liability and any obligation of the plan, earnings and forfeitures shall not be included. For purposes of determining the amount of such liability and purposes of section 515 of the employee retirement income security act of 1974 or a similar federal or state law governing pension benefits for governmental employees, service in the uniformed services that is deemed under subsection (1) of this section to be service with the employer shall be deemed to be service with the employer under the terms of the plan or any applicable collective bargaining agreement. In the case of a multiemployer plan as defined in section 3(37) of the employee retirement income security act of 1974 (29 U.S.C. Sec. 1002(37)(A)), any liability of the plan described in this paragraph shall be allocated:

(a) By the plan in such manner as the sponsor maintaining the plan shall provide; or

(b) If the sponsor does not provide:

(i) To the last employer employing the person before the period served by the person in the uniformed services; or

(ii) If such last employer is no longer functional, to the plan.

(3) A person reemployed under this chapter is entitled to accrued benefits pursuant to subsection (1)(a) of this section that are contingent on the making of, or derived from, employee contributions or elective deferrals (as defined in section 402(g)(3) of the internal revenue code of 1986) only to the extent the person makes payment to the plan with respect to such contributions or deferrals. No such payment may exceed the amount the person would have been permitted or required to contribute had the person remained continuously employed by the employer throughout the period of uniformed service. Any payment to the plan described in this subsection shall be made during the period beginning with the date of reemployment and whose duration is three times the period of the person's services, such payment period in the uniformed services, not to exceed five years.

(4) For purposes of computing an employer's liability of the employee's contributions under subsection (2) of this section, the employee's compensation during the period of service shall be computed:

(a) At the rate the employee would have received but for the period of service in subsection (1)(b) of this section; or

(b) In the case that the determination of such rate is not reasonably certain, on the basis of the employee's average rate of compensation during the twelve-month period immediately preceding such period or if shorter, the period of employment immediately preceding such period.

(5) Any employer who reemploys a person under this chapter and who is an employer contributing to a multiemployer plan as defined in section 3(37) of the employee retirement income security act of 1974 (29 U.S.C. Sec. 1002(37)(A)) under which benefits are or may be payable to such person by reason of the obligations in this chapter, shall, within thirty days after the date of such reemployment, provide information, in writing, of such reemployment to the administrator of such plan.

Sec. 10. RCW 73.16.061 and 1953 c 212 s 6 are each amended to read as follows:

In case any employer, his or her successor or successors fails or refuses to comply with the provisions of ((~~RCW 73.16.031 through 73.16.061~~)) this chapter, the ((~~prosecuting attorney of the county in which the employer is located~~)) attorney general shall bring action in the superior court in the county in which the employer is located or does business to obtain an order to specifically require such employer to comply with the provisions ((~~hereof~~)) of this chapter, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of such employer's unlawful act. Any such person who does not desire the services of the ((~~prosecuting~~)) attorney general may, by private counsel, bring such action.

Sec. 11. RCW 73.16.070 and 1941 c 201 s 5 are each amended to read as follows:

The federal soldiers' and sailors' civil relief act of 1940, Public Act No. 861((~~, 76th congress~~)), is hereby specifically declared to apply in proper cases in all the courts of this state.

NEW SECTION. Sec. 12. A new section is added to chapter 73.16 RCW to read as follows:

(1) This chapter shall not supersede, nullify, or diminish any federal, state, or political subdivision of this state, law, ordinance, rule, regulation, contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.

(2) This chapter supersedes any state law, or that of any political subdivision of this state as set out in subsection (1) of this section, and any contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner a right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.