BILL REQ. #:  H-3402.1 

Read first time 01/12/2006.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to disqualification from unemployment compensation for using or being under the influence of intoxicating liquor or a controlled substance while acting in the scope of employment; amending RCW 50.04.294; and creating new sections.

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

Sec. 1   RCW 50.04.294 and 2003 2nd sp.s. c 4 s 6 are each amended to read as follows:
     With respect to claims that have an effective date on or after January 4, 2004:
     (1) "Misconduct" includes, but is not limited to, the following conduct by a claimant:
     (a) Willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee;
     (b) Deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee;
     (c) Carelessness or negligence that causes or would likely cause serious bodily harm to the employer or a fellow employee; or
     (d) Carelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer's interest.
     (2) The following acts are considered misconduct because the acts signify a willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee. These acts include, but are not limited to:
     (a) Insubordination showing a deliberate, willful, or purposeful refusal to follow the reasonable directions or instructions of the employer;
     (b) Repeated inexcusable tardiness following warnings by the employer;
     (c) Dishonesty related to employment, including but not limited to deliberate falsification of company records, theft, deliberate deception, or lying;     
     (d) Repeated and inexcusable absences, including absences for which the employee was able to give advance notice and failed to do so;
     (e) Deliberate acts that are illegal, provoke violence or violation of laws, or violate the collective bargaining agreement. However, an employee who engages in lawful union activity may not be disqualified due to misconduct;
     (f) Violation of a company rule if the rule is reasonable and if the ((claimant)) employee knew or should have known of the existence of the rule; ((or))
     (g)(i) With respect to claims that have an effective date on or after the effective date of this act, using or being under the influence of intoxicating liquor or any nonprescribed controlled substance when the employee is:
     (A) Driving, or is in actual physical control of, a motor vehicle while acting within the scope of employment; or
     (B) Acting within the scope of employment in a position identified as a safety-sensitive position by written employer policy that was in effect when the conduct occurred and concerning which the affected employee received actual notice.
     (ii) For purposes of this subsection (2)(g):
     (A) "Controlled substance" means the same as the definition in RCW 69.50.101;
     (B) "Motor vehicle" means the same as the definition in RCW 46.04.320; and
     (C) "Under the influence" means the standard established by the employer in a written policy that was in effect when the conduct occurred and concerning which the affected employee received actual notice or, if the employer has not established such a written policy, the same as the standard in RCW 46.61.502.
     (iii) This subsection (2)(g) does not limit application of this section to other misconduct involving intoxicating liquor or controlled substances; or
     (h) Violations of law by the ((claimant)) employee while acting within the scope of employment that substantially affect the ((claimant's)) employee's job performance or that substantially harm the employer's ability to do business.
     (3) "Misconduct" does not include:
     (a) Inefficiency, unsatisfactory conduct, or failure to perform well as the result of inability or incapacity;
     (b) Inadvertence or ordinary negligence in isolated instances; or
     (c) Good faith errors in judgment or discretion.
     (4) "Gross misconduct" means a criminal act in connection with an individual's work for which the individual has been convicted in a criminal court, or has admitted committing, or conduct connected with the individual's work that demonstrates a flagrant and wanton disregard of and for the rights, title, or interest of the employer or a fellow employee.

NEW SECTION.  Sec. 2   The commissioner of the employment security department may adopt such rules as are necessary to implement this act.

NEW SECTION.  Sec. 3   If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state or the eligibility of employers in this state for federal unemployment tax credits, the conflicting part of this act is inoperative solely to the extent of the conflict, and the finding or determination does not affect the operation of the remainder of this act. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state or the granting of federal unemployment tax credits to employers in this state.