WSR 99-13-183

PROPOSED RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed June 23, 1999, 9:24 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-08-072.

Title of Rule: Unemployment benefits for educational employees. Defining terms, establishing objective criteria used to define "academic year" and to establish how the department will determine if an employee has reasonable assurance of returning to work.

Purpose: To provide for consistency in the interpretation and application of the statutes to educational employees who apply for unemployment benefits.

Statutory Authority for Adoption: RCW 50.12.010, 50.20.010.

Statute Being Implemented: RCW 50.44.050 and 50.44.053.

Summary: New rules are adopted to comply with statutory changes contained in HB 2947. These include specifying the criteria that will be used to determine when summer term is part of a particular institution's academic year, and the factors the department will consider when determining whether an educational employee has reasonable assurance of returning to work in the next school term.

Reasons Supporting Proposal: Current rules are inconsistent with state law as amended by HB 2947. Amendments are needed for purposes of clarity and consistency.

Name of Agency Personnel Responsible for Drafting: Juanita Myers, 212 Maple Park, Olympia, (360) 902-9665; Implementation and Enforcement: Dale Ziegler, 212 Maple Park, Olympia, (360) 902-9303.

Name of Proponent: Employment Security Department, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: In response to concerns raised by the United States Department of Labor regarding conformity between Washington state law and federal law, the legislature amended the law (HB 2947) relating to eligibility for unemployment benefits of educational employees. The proposed new rules are intended to define terms, specify the objective criteria that will be used to determine if summer quarter is part of the academic year for a particular institution, and describe the criteria the department will use to determine whether an educational employee has reasonable assurance of returning to work in the next term. These regulations will provide for consistency of interpretation by the department, the employers, and by those employees who file claims for unemployment benefits.

Proposal Changes the Following Existing Rules: Three existing rules are repealed.

No small business economic impact statement has been prepared under chapter 19.85 RCW. All regulations contained within this filing pertain only to educational institutions. No private businesses are impacted by the proposed regulations.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. The proposed regulations constitute "significant legislative" rules because (a) they establish or alter the qualifications or standards for determining an individual's eligibility for unemployment benefits, and (b) they make significant amendments to a policy or regulatory program.

Hearing Location: Employment Security Department, 2nd Floor Conference Room, 212 Maple Park, Olympia, WA, on July 28, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Karen LaFreniere by July 26, 1999, TDD (360) 902-9589, or (360) 902-9582.

Submit Written Comments to: Barney Hilliard, Rules Coordinator, Employment Security Department, P.O. Box 9046, Olympia, WA 98504-9046, fax (360) 438-3226, by July 28, 1999.

Date of Intended Adoption: July 30, 1999.

June 22, 1999

Kathy Baros Friedt

Deputy Commissioner


Chapter 192-210 WAC

SPECIAL CATEGORY OCCUPATIONS



NEW SECTION
WAC 192-210-005
Definitions--Educational employees.

(1) Contract. An agreement that is binding on an educational institution to provide work and on an individual to perform services. Tenure or tenure track status is considered a contract.

(2) Faculty. A teacher, counselor, librarian, or other position with similar training, experience and level of responsibility.

(3) Full time employment. Employment designated as full time for or at the educational institution under a collective bargaining agreement, individual hiring contract, or other agreement (including institutional policies), as provided in RCW 50.04.310(2). For faculty at public institutions, the hiring contract, agreement or institutional policy must be consistent with the provisions of RCW 28A.150.220 (kindergarten through twelfth grade), RCW 28B.50.851 (community and technical colleges), RCW 28B.35.120 (regional universities), or RCW 28B.20.130 (other colleges and universities).

(4) Under the same terms and conditions of employment. This includes economic conditions of employment such as wages, duration of contract, hours of work, and general nature of the work. It does not include other conditions and details such as the specific work location, duties, or assignment. The position need not be identical to the previous position to meet this test. A position would be considered to be under the same terms and conditions of employment if it is of similar type or classification, with similar pay, fringe benefits, hours of work, general type of work, and duration of employment.

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NEW SECTION
WAC 192-210-010
What are the objective criteria used to define "academic year"?--RCW 50.44.050(5).

Summer term will be considered part of the academic year for an educational institution unless:

(1) Total enrollment of full-time equivalent students during the previous summer term is less than one third of the average academic year enrollment of full-time equivalent students for the fall, winter, and spring terms of the preceding two years; or

(2) Total full-time equivalent staff during the previous summer term is less than fifty percent of the academic year average of the full-time equivalent staff during the fall, winter, and spring terms during the preceding two years.

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NEW SECTION
WAC 192-210-015
How will the department decide if reasonable assurance exists?

(1) Reasonable assurance is a bona fide offer from an educational institution to assign an individual future work at that institution under the same terms and conditions as the individual's previous employment. It is less than a contract or written agreement, but more than a mere possibility of future employment. The department must find that continued employment for that individual is likely or probable.

(2) Decisions regarding the existence of reasonable assurance will be made on an individual basis, with consideration given to contingencies that may exist in the individual case.

(3) If there is a disagreement regarding whether an individual has reasonable assurance, the institution must provide the department with documentation in support of its statement that reasonable assurance exists for that individual.

(4) Following are some, but not all, examples of the types of documentary evidence that may be provided by an institution:

(a) The terms of any contract or agreement between the individual and the educational institution, including length, contingencies, or provisions for cancellation,

(b) Whether the employer pays fringe benefits to the individual, such as health care, during periods between academic years or terms,

(c) The number of comparable positions at the institution,

(d) Projections of student enrollment, school funding, or program funding contained in the institution's budget,

(e) Any hiring priorities used by the school, such as precedence given to full-time or tenured staff or the use of seniority lists,

(f) The individual's employment history,

(g) Whether the class(es) have been consistently offered by the institution, including whether the class has been canceled due to lack of enrollment.

(5) The existence of reasonable assurance will be determined by the total weight of the evidence, rather than the existence of any one factor included in subsection (4).

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 192-16-051 Special coverage provisions for educational employees--Definitions--RCW 50.44.050(1)
WAC 192-16-052 Objective criteria used to define "academic year"--RCW 50.44.050(5)
WAC 192-16-057 Interpretive regulation--"Under the same terms and conditions of employment" defined

Washington State Code Reviser's Office