BILL REQ. #:  H-4881.1 

READ FIRST TIME 02/06/04.   

     AN ACT Relating to workers required to train successors; amending RCW 50.20.050; adding a new section to chapter 49.12 RCW; adding a new section to chapter 50.04 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 49.12 RCW to read as follows:
     (1) An employer may not order a layoff of workers who were required to train other persons to perform their job duties within ninety days of the date on which the workers began training the other persons unless, ten days before the date on which the workers began training the other persons, the employer gave written notice of the layoff to: (a) The workers affected by the layoff; and (b) the department.
     (2) The written notice must specify: (a) The number of affected positions; (b) the number of affected positions being relocated or outsourced to a different location one hundred miles or more away; (c) the job titles and wages of the affected positions; (d) the locations to which the affected positions are being relocated or outsourced; and (e) any additional information specified in rule by the department.
     (3)(a) An employer who fails to give notice as required by subsection (1) of this section is liable to each employee entitled to notice who lost his or her employment for:
     (i) The value of wages at the average regular rate of compensation received by the employee during the last three years of his or her employment, or the employee's final rate of compensation, whichever is higher; and
     (ii) The value of any benefits to which the employee would have been entitled had his or her employment not been lost, including, but not limited to: (A) The value of any sick leave or other paid time off as defined in RCW 49.12.265; (B) the value of any pension, profit sharing, stock bonus, stock purchase, and stock option plans; and (C) the cost of any medical expenses incurred by the employee that would have been covered under an employee benefit plan.
     (b) Liability under this subsection (3) is calculated for the period of the employer's violation, up to a maximum of ninety days, or one-half the number of days that the employee was employed by the employer, whichever period is smaller.
     (4) An employer who fails to give notice as required by subsection (1) of this section is also subject to a civil penalty of not more than one hundred dollars per employee entitled to notice for each day of the employer's violation. Civil penalties collected under this section shall be paid into the unemployment trust fund.
     (5) The department shall administer and investigate violations of this section. In an investigation or proceeding under this section, the director has, in addition to all other powers granted by law, the authority to examine the books and records of an employer. The department shall adopt rules necessary to carry out this section.
     (6) A person, including an employee representative, seeking to establish liability against an employer may bring a civil action on behalf of the person, other persons similarly situated, or both, in any court of competent jurisdiction. The court may award reasonable attorneys' fees as part of costs to a plaintiff who prevails in a civil action brought under this section.
     (7) For the purposes of this section:
     (a) "Employer" means an employer that has one hundred or more workers.
     (b) "Layoff" means a separation from employment of a person engaged in the employment of an employer or a termination of a person who is working under an independent contract, the essence of which is his or her personal labor.
     (c) "Worker" has the meaning provided in RCW 51.08.180.

Sec. 2   RCW 50.20.050 and 2003 2nd sp.s. c 4 s 4 are each amended to read as follows:
     (1) With respect to claims that have an effective date before January 4, 2004:
     (a) An individual shall be disqualified from benefits beginning with the first day of the calendar week in which he or she has left work voluntarily without good cause and thereafter for seven calendar weeks and until he or she has obtained bona fide work in employment covered by this title and earned wages in that employment equal to seven times his or her weekly benefit amount.
     The disqualification shall continue if the work obtained is a mere sham to qualify for benefits and is not bona fide work. In determining whether work is of a bona fide nature, the commissioner shall consider factors including but not limited to the following:
     (i) The duration of the work;
     (ii) The extent of direction and control by the employer over the work; and
     (iii) The level of skill required for the work in light of the individual's training and experience.
     (b) An individual shall not be considered to have left work voluntarily without good cause when:
     (i) He or she has left work to accept a bona fide offer of bona fide work as described in (a) of this subsection;
     (ii) The separation was because of the illness or disability of the claimant or the death, illness, or disability of a member of the claimant's immediate family if the claimant took all reasonable precautions, in accordance with any regulations that the commissioner may prescribe, to protect his or her employment status by having promptly notified the employer of the reason for the absence and by having promptly requested reemployment when again able to assume employment: PROVIDED, That these precautions need not have been taken when they would have been a futile act, including those instances when the futility of the act was a result of a recognized labor/management dispatch system;
     (iii) He or she has left work to relocate for the spouse's employment that is due to an employer-initiated mandatory transfer that is outside the existing labor market area if the claimant remained employed as long as was reasonable prior to the move; or
     (iv) The separation was necessary to protect the claimant or the claimant's immediate family members from domestic violence, as defined in RCW 26.50.010, or stalking, as defined in RCW 9A.46.110.
     (c) In determining under this subsection whether an individual has left work voluntarily without good cause, the commissioner shall only consider work-connected factors such as the degree of risk involved to the individual's health, safety, and morals, the individual's physical fitness for the work, the individual's ability to perform the work, and such other work connected factors as the commissioner may deem pertinent, including state and national emergencies. Good cause shall not be established for voluntarily leaving work because of its distance from an individual's residence where the distance was known to the individual at the time he or she accepted the employment and where, in the judgment of the department, the distance is customarily traveled by workers in the individual's job classification and labor market, nor because of any other significant work factor which was generally known and present at the time he or she accepted employment, unless the related circumstances have so changed as to amount to a substantial involuntary deterioration of the work factor or unless the commissioner determines that other related circumstances would work an unreasonable hardship on the individual were he or she required to continue in the employment.
     (d) Subsection (1)(a) and (c) of this section shall not apply to an individual whose marital status or domestic responsibilities cause him or her to leave employment. Such an individual shall not be eligible for unemployment insurance benefits beginning with the first day of the calendar week in which he or she left work and thereafter for seven calendar weeks and until he or she has requalified, either by obtaining bona fide work in employment covered by this title and earning wages in that employment equal to seven times his or her weekly benefit amount or by reporting in person to the department during ten different calendar weeks and certifying on each occasion that he or she is ready, able, and willing to immediately accept any suitable work which may be offered, is actively seeking work pursuant to customary trade practices, and is utilizing such employment counseling and placement services as are available through the department. This subsection does not apply to individuals covered by (b)(ii) or (iii) of this subsection.
     (2) With respect to claims that have an effective date on or after January 4, 2004:
     (a) An individual shall be disqualified from benefits beginning with the first day of the calendar week in which he or she has left work voluntarily without good cause and thereafter for seven calendar weeks and until he or she has obtained bona fide work in employment covered by this title and earned wages in that employment equal to seven times his or her weekly benefit amount.
     The disqualification shall continue if the work obtained is a mere sham to qualify for benefits and is not bona fide work. In determining whether work is of a bona fide nature, the commissioner shall consider factors including but not limited to the following:
     (i) The duration of the work;
     (ii) The extent of direction and control by the employer over the work; and
     (iii) The level of skill required for the work in light of the individual's training and experience.
     (b) An individual is not disqualified from benefits under (a) of this subsection when:
     (i) He or she has left work to accept a bona fide offer of bona fide work as described in (a) of this subsection;
     (ii) The separation was necessary because of the illness or disability of the claimant or the death, illness, or disability of a member of the claimant's immediate family if:
     (A) The claimant pursued all reasonable alternatives to preserve his or her employment status by requesting a leave of absence, by having promptly notified the employer of the reason for the absence, and by having promptly requested reemployment when again able to assume employment. These alternatives need not be pursued, however, when they would have been a futile act, including those instances when the futility of the act was a result of a recognized labor/management dispatch system; and
     (B) The claimant terminated his or her employment status, and is not entitled to be reinstated to the same position or a comparable or similar position;
     (iii) He or she: (A) Left work to relocate for the spouse's employment that, due to a mandatory military transfer: (I) Is outside the existing labor market area; and (II) is in Washington or another state that, pursuant to statute, does not consider such an individual to have left work voluntarily without good cause; and (B) remained employed as long as was reasonable prior to the move;
     (iv) The separation was necessary to protect the claimant or the claimant's immediate family members from domestic violence, as defined in RCW 26.50.010, or stalking, as defined in RCW 9A.46.110;
     (v) The individual's usual compensation was reduced by twenty-five percent or more;
     (vi) The individual's usual hours were reduced by twenty-five percent or more;
     (vii) The individual's worksite changed, such change caused a material increase in distance or difficulty of travel, and, after the change, the commute was greater than is customary for workers in the individual's job classification and labor market;
     (viii) The individual's worksite safety deteriorated, the individual reported such safety deterioration to the employer, and the employer failed to correct the hazards within a reasonable period of time;
     (ix) The individual left work because of illegal activities in the individual's worksite, the individual reported such activities to the employer, and the employer failed to end such activities within a reasonable period of time; ((or))
     (x) The individual's usual work was changed to work that violates the individual's religious convictions or sincere moral beliefs; or
     (xi) The individual left work because:
     (A) He or she received written notice of a layoff as described in section 1 of this act; or
     (B) He or she was required to train other persons to perform his or her job duties, he or she reasonably expected to be laid off within ninety days of the date on which he or she began training the other persons, and his or her position was relocated or outsourced to a different location one hundred miles or more away.

NEW SECTION.  Sec. 3   A new section is added to chapter 50.04 RCW to read as follows:
     Payments to a person under section 1 of this act may not be construed as wages or used to deny or reduce benefits under this title.

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.

NEW SECTION.  Sec. 5   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, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.