Z‑0319.3   _____________________________________________

SENATE BILL 5316

           _____________________________________________

State of Washington      57th Legislature     2001 Regular Session

By Senators Prentice and Winsley; by request of Employment Security Department

Read first time 01/18/2001.  Referred to Committee on Labor, Commerce & Financial Institutions.

_1      AN ACT Relating to reasonable assurance of employment for

_2  employees of educational institutions; amending RCW 50.44.053 and

_3  50.44.080; adding a new section to chapter 50.44 RCW; creating new

_4  sections; and declaring an emergency.

_5  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_6      NEW SECTION. Sec. 1.  A new section is added to chapter 50.44

_7  RCW to read as follows:

_8      The legislature finds the interests of the state and its

_9  citizens are best served by a strong community and technical

10  college system. As described by their establishing legislation,

11  these two‑year institutions are an independent, unique, and vital

12  section of our state's higher education system, separate from both

13  the common school system and other institutions of higher

14  education. Paramount to that system's success is the attraction

15  and retention of qualified instructors. In order to attract and

16  retain instructors, those who are subject to uncertainties of

17  employment must be provided assurance their economic needs are

18  addressed.  Over time, a change in hiring patterns has occurred, and

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_1  for the last decade a substantial portion of community and

_2  technical college faculty are hired on a contingent, as needed,

_3  basis.  That contingent nature distinguishes them from the more

_4  stable, majority employment found in the common school system and

_5  in the other institutions of higher education.  Contingent

_6  assurances of future employment are often speculative and do not

_7  rise to the level of other forms of assurance.  As such, assurances

_8  conditioned on forecast enrollment, funding, or program decisions

_9  are typically not reasonable assurances of employment.

10      It is the intent of the legislature that reasonable assurance

11  continue to apply to all employees of educational institutions as

12  required by federal provisions and RCW 50.44.080.

13      Sec. 2.  RCW 50.44.053 and 1998 c 233 s 3 are each amended to read

14  as follows:

15      (1) The term "reasonable assurance," as used in RCW 50.44.050,

16  means a written, verbal, or implied agreement that the employee

17  will perform services in the same capacity during the ensuing

18  academic year or term as in the first academic year or term.  A

19  person shall not be deemed to be performing services "in the same

20  capacity" unless those services are rendered under the same terms

21  or conditions of employment in the ensuing year as in the first

22  academic year or term.

23      (2) An individual who is tenured or holds tenure track status

24  is considered to have reasonable assurance, unless advised

25  otherwise by the college. For the purposes of this section, tenure

26  track status means a probationary faculty employee having an

27  opportunity to be reviewed for tenure.

28      (3) In the case of community and technical colleges assigned

29  the standard industrial classification code 8222 or the north

30  American industry classification system code 611210 for services

31  performed in a principal administrative, research, or

32  instructional capacity, a person is presumed not to have

33  reasonable assurance under an offer that is conditioned on

34  enrollment, funding, or program changes. It is the college's

35  burden to provide sufficient documentation to overcome this

36  presumption.  Reasonable assurance must be determined on a case-by-

37  case basis by the total weight of evidence rather than the

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_1  existence of any one factor.  Primary weight must be given to the

_2  contingent nature of an offer of employment based on enrollment,

_3  funding, and program changes.

_4      Sec. 3.  RCW 50.44.080 and 1971 c 3 s 25 are each amended to read

_5  as follows:

_6      ((RCW 50.44.010 through 50.44.070 have been enacted to meet the

_7  requirements imposed by the federal unemployment tax act as

_8  amended by 91-373.  Internal references in any section of chapter 3,

_9  Laws of 1971 to the provisions of that act are intended only to

10  apply to those provisions as they existed as of January 28,

11  1971.))

12      In view of the importance of compliance of this chapter ((3,

13  Laws of 1971)) with the federal unemployment tax act, any

14  ambiguities contained herein should be resolved in a manner

15  consistent with the provisions of that act.  ((Considerable weight

16  has been given to the commentary contained in that document

17  entitled "Draft Legislation to Implement the Employment Security

18  Amendments of 1970 . . . H.R. 14705", published by the United States

19  Department of Labor, Manpower Administration, and that commentary

20  should be referred to when interpreting the provisions of chapter

21  3, Laws of 1971.))  Department of labor guidelines implementing

22  this act should be referred to when interpreting the provisions of

23  this chapter.

24      Language in this chapter ((3, Laws of 1971)) concerning the

25  extension of coverage to employers entitled to make payments in

26  lieu of contributions should, in a manner consistent with the

27  foregoing paragraph, be construed so as to have a minimum

28  financial impact on the employers subject to the experience rating

29  provisions of this title.

30      NEW SECTION. Sec. 4.  If any part of this act is found to be in

31  conflict with federal requirements that are a prescribed condition

32  to the allocation of federal funds to the state or the eligibility

33  of employers in this state for federal unemployment tax credits,

34  the conflicting part of this act is inoperative solely to the

35  extent of the conflict, and the finding or determination does not

36  affect the operation of the remainder of this act.  Rules adopted

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_1  under this act must meet federal requirements that are a necessary

_2  condition to the receipt of federal funds by the state or the

_3  granting of federal unemployment tax credits to employers in this

_4  state.

_5      NEW SECTION. Sec. 5.  If any provision of this act or its

_6  application to any person or circumstance is held invalid, the

_7  remainder of the act or the application of the provision to other

_8  persons or circumstances is not affected.

_9      NEW SECTION. Sec. 6.  This act applies to weeks that begin after

10  March 31, 2001.

11      NEW SECTION. Sec. 7.  This act is necessary for the immediate

12  preservation of the public peace, health, or safety, or support of

13  the state government and its existing public institutions, and

14  takes effect immediately.

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