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; adding new sections to chapter 73.16 RCW;
and declaring an emergency.
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
(c)
Prohibit discrimination against persons because of their service in the
uniformed services.
(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)
"Employee" means a person in a position of employment.
(4)
"Employer" means the person, firm, or corporation, the state, or any
elected or appointed public official currently having control over the position
that has been vacated.
(5)
"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.
(6)
"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.
(7)
"Position of employment" means any position (other than temporary)
wherein a person is engaged for a private employer, company, corporation, or
the state((, municipality, or political subdivision thereof)).
(8)
"Qualified," with respect to an employment position, means having the
ability to perform the essential tasks of the position.
(9)
"Rejectee" means a person rejected because he or she is not,
physically or otherwise, qualified to enter the uniformed service.
(10)
"Resident" means any person residing in the state with the intent to
remain other than on a temporary or transient basis.
(11)
"Seniority" means longevity in employment together with any benefits
of employment which accrue with, or are determined by, longevity in employment.
(12)
"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.
(13)
"State" means the state of Washington, including the agencies and
political subdivisions thereof.
(14)
"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.))
(15)
"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; and
(c)
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.
(16)
"Uniformed services" means the armed forces, the army national guard,
and the air national guard of any state, territory, commonwealth, possession,
or district 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, 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 employer 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.
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,
and who voluntarily or upon ((demand)) order from competent authority,
vacates a position of employment ((to determine his physical fitness to
enter, or, who actually does enter upon active duty or training in the
Washington National Guard, the armed forces of the United States, or the United
States public health service)) for service in the uniformed services,
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 fitness for service)) in
the uniformed services, 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 notify his or her employer as to his or her
membership in the uniformed services within a reasonable time of accepting
employment or becoming a member of the uniformed services. An employer may not
take any action prohibited in section 4 of this act against a person because
the person provided notice of membership in the uniformed services to the
employer.
(b)
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)) (c) The applicant must make written 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
(c)(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 (c)(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 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 this subsection (1)(c), 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.
(d)
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 (c)(v) of this subsection; and
(iii)
The applicant's entitlement to the benefits under this chapter has not been
terminated pursuant to (e) of this subsection.
(((3)
If, due to the necessity of hospitalization, while on active duty, he is
released or placed on inactive duty and remains hospitalized, he is eligible
for the benefits of RCW 73.16.031 through 73.16.061: PROVIDED, That such
hospitalization does not continue for more than one year from date of such
release or inactive status: PROVIDED FURTHER, That he applies for his 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)) the appropriate period
specified in (c) of this subsection after serving four years or less in
the uniformed services other than state-ordered active duty: 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.
(f)
The applicant must return and reenter the office or position within the
appropriate period specified in (c) of this subsection after serving twelve
weeks or less in a calendar year in state-ordered active duty: PROVIDED, That
the governor, when declaring an emergency that necessitates a longer period of
service, may extend the period of service in state-ordered active duty to up to
twelve months after which the applicant is eligible for the benefits of this
chapter.
(2)
The failure of an applicant to provide documentation that satisfies rules
adopted pursuant to subsection (1)(c) 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)(d) 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 temporary position, 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)) this
chapter 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)
If a person, or the person's dependents, have coverage under a health plan in
connection with the person's position of state employment, and the person is
absent from his or her position of state employment by reason of service in the
uniformed services, the plan shall provide that the person may elect to
continue the 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 state 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 associated with the coverage for the state 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 the coverage.
(3)
Except as provided in subsection (2) of this section, if a person's coverage
under a health plan was terminated because of service in the uniformed
services, an exclusion or waiting period may not be imposed in connection with
the reinstatement of the coverage upon reemployment under this chapter if an
exclusion or waiting period would not have been imposed under a health plan had
coverage of the person by the plan not been terminated as a result of his or
her service. This subsection applies to the person who is reemployed and to
any dependent who is covered by the plan because of the reinstatement of the coverage
of the person.
NEW
SECTION. Sec. 9. A
new section is added to chapter 73.16 RCW to read as follows:
(1)(a)
In the case of a right provided under any state law governing pension benefits
for state employees, the right to pension benefits of 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 state because of the 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 state
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)
When the state is reemploying a person under this chapter, the state 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 a state
law governing pension benefits for state employees, service in the uniformed
services that is deemed under subsection (1) of this section to be service with
the state shall be deemed to be service with the state under the terms of the
plan or any applicable collective bargaining agreement.
(3)
A person reemployed by the state 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 state 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.
Sec.
10. RCW
73.16.061 and 1953 c 212 s 6 are each amended to read as follows:
(1)
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 and
sections 4, 8, 9, and 13 of this act, 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 if:
(a)
The service in question was state duty not covered by the uniformed services
employment and reemployment rights act of 1994, P.L. 103-353 (38 U.S.C. Sec.
4301 et seq.); and
(b)
The employer support for guard and reserve ombudsman, or his or her designee,
has inquired in the matter and has been unable to resolve it.
(2)
If the conditions in subsection (1)(a) and (b) of this section are met, 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:
An
offset of any military pay for temporary service in the uniformed services in a
particular week against the salary of a bona fide executive, administrative, or
professional employee in a particular week shall not be a factor in determining
whether the employee is exempt under RCW 49.46.010(5)(c).
NEW
SECTION. Sec. 13. A
new section is added to chapter 73.16 RCW to read as follows:
This
chapter shall not supersede, nullify, or diminish any federal or 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.
NEW
SECTION. Sec. 14. A
new section is added to chapter 73.16 RCW to read as follows:
The
legislature declares that the public policies articulated in chapter ..., Laws
of 2001 (this act) depend on the procedures established in chapter ..., Laws of
2001 (this act). No civil or criminal action may be maintained relying on the
public policies articulated in chapter ..., Laws of 2001 (this act) without
complying with the procedures in this chapter. To that end, all civil actions
and civil causes of action for such injuries and all jurisdiction of the courts
of this state over such causes are hereby abolished, except as provided in this
chapter.
NEW SECTION. Sec. 15. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and takes effect immediately.
