AN ACT Relating to
unfair practices by public employers with respect to eligibility for
employment-based benefits; adding a new section to chapter 49.44 RCW; and
creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
NEW SECTION. Sec.
1. The legislature intends
that public employers be prohibited from misclassifying employees, or taking
other action to avoid providing or continuing to provide employment-based
benefits to which employees are entitled under state law or employer policies.
The legislature intends
that public employers should provide all persons who provide services for the
employer, and who are in an employer-employee relationship with the employer,
with the benefits of the employer-employee relationship. Health insurance,
retirement benefits, sick and annual leave, and other similar employee benefits
should be provided on a consistent basis, as defined by state law or employer
policies, to all persons who have an employee-employer relationship with a
public employer. Objective standards, such as control over the work and the
length of the employment relationship should determine whether a person is an
employee who is entitled to employee benefits, rather than the arbitrary
application of labels, such as "temporary," or "contractor."
Common law standards, applied in a manner consistent with internal revenue
service and department of retirement system guidelines, should be used to
determine whether a person is performing services as an employee, as a
contractor, or as part of an agency relationship.
The legislature does
not intend to modify or mandate in any way the provision of benefits by this
act, but instead intends that public employers apply benefit eligibility rules
on an objective basis. This act specifically is not intended to modify any
statute or policy regarding the employment of public employee retirees who work
as contractors or enrolled students who receive employment as student employees
or as part of their education or financial aid.
NEW SECTION. Sec.
2. A new section is added
to chapter 49.44 RCW to read as follows:
(1) It is an unfair
practice for any public employer to:
(a) Misclassify any
employee to avoid providing or continuing to provide employment-based benefits
to which the employee would become or is entitled under any state law or any
employer policy; or
(b) Include any other
language in a contract with an employee that requires the employee to forego
employment-based benefits to which the employee would become or is entitled
under any state law or any employer policy.
(2) The definitions in
this subsection apply throughout this section unless the context clearly
requires otherwise.
(a)
"Employee" means a person who is providing services for compensation
to an employer, unless the person is free from the employer's direction and
control over the performance of work. This definition shall be interpreted
consistent with guidelines established by the federal internal revenue service,
the department of retirement systems' definitions under RCW 41.40.010, and
common law.
(b)
"Employment-based benefits" means any benefits to which an employee
may become or is entitled under any state law or any public employer written
policy.
(c) "Public
employer" means: (i) Any unit of local government including, but not
limited to, a county, city, town, municipal corporation, quasi-municipal
corporation, or political subdivision; and (ii) the state, state institutions,
and state agencies. This definition also shall be interpreted consistent with
common law.
(d)
"Misclassify" and "misclassification" mean to incorrectly
classify or label a long-term public employee as "temporary,"
"leased," "contract," "seasonal,"
"intermittent," or "part-time," or to use a similar label
that does not objectively describe the employee's actual work circumstances.
(3) Any employee
deeming himself or herself harmed in violation of subsection (1) of this
section may either seek a review by the department of retirement systems to
determine whether the employee has been misclassified, or may bring a civil
action in a court of competent jurisdiction. If a person seeks a review by the
department of retirement systems, it may investigate and render a decision
regarding whether the person has been misclassified in a manner that has had a
negative impact on the employee's right to retirement benefits provided by
statute, ordinance, or employer policy. If the department determines that an
employee has been misclassified, the public employer shall pay to the
department of retirement systems an amount equal to the full cost of the
investigation and review.
NEW SECTION. Sec.
3. This act shall be
construed liberally for the accomplishment of the purposes thereof.
NEW
SECTION. Sec. 4. If any provision of this
act or its application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other persons or
circumstances is not affected.
