_______________________________________________
ENGROSSED
SUBSTITUTE SENATE BILL 5264
_______________________________________________
AS
AMENDED BY THE HOUSE
Passed
Legislature - 2002 Regular Session
State
of Washington 57th Legislature 2001 Regular Session
By
READ
FIRST TIME 03/08/01.
Prohibiting public employers from misclassifying employees
to avoid providing benefits.
AN
ACT Relating to unfair practices by public employers with respect to
eligibility for employment-based benefits; adding new sections to chapter 49.44
RCW; and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 49.44 RCW to read as follows:
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 or collective bargaining agreements applicable to the
employee's correct classification.
This
act does not mandate that any public employer provide benefits to actual
temporary, seasonal, or part-time employees beyond the benefits to which they
are entitled under state law or employer policies or collective bargaining
agreements applicable to the employee's correct classification. Public
employers may determine eligibility rules for their own benefit plans and may
exclude categories of workers such as "temporary" or
"seasonal," so long as the definitions and eligibility rules are
objective and applied on a consistent basis. 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 should be used to determine
whether a person is performing services as an employee, as a contractor, or as
part of an agency relationship.
This
act does not modify any statute or policy regarding the employment of: Public
employee retirees who are hired for postretirement employment as provided for
in chapter 41.26, 41.32, 41.35, or 41.40 RCW or 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; or
(b)
Include any other language in a contract with an employee that requires the
employee to forgo employment-based benefits.
(2)
The definitions in this subsection apply throughout this act 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 common law.
(b)
"Employment-based benefits" means any benefits to which employees are
entitled under state law or employer policies or collective bargaining
agreements applicable to the employee's correct classification.
(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 shall be interpreted
consistent with common law.
(d)
"Misclassify" and "misclassification" means 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)
An employee deeming himself or herself harmed in violation of subsection (1) of
this section may bring a civil action in a court of competent jurisdiction.
NEW
SECTION. Sec. 3. This
act shall be construed liberally for the accomplishment of its purposes.
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.
