WSR 99-18-066

PERMANENT RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed August 31, 1999, 9:19 a.m. ]

Date of Adoption: August 12, 1999.

Purpose: To adopt rules implementing ESHB 2947. The bill amended RCW 50.44.050 to modify the definition of "academic year" for all educational institutions. It also amended RCW 50.44.053 to delete the provision that "reasonable assurance" for part-time community and technical college faculty does not include agreements that are contingent on funding, enrollment, or program changes. New rules define terms, establish objective criteria for determining if a school has a twelve month academic year, and clarify provision related to reasonable assurance of continuing employment.

Citation of Existing Rules Affected by this Order: Repealing WAC 192-16-051, 192-16-052, and 192-16-057.

Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, 50.20.010.

Adopted under notice filed as WSR 99-13-183 on June 23, 1999.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 3, Amended 0, Repealed 3.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

August 30, 1999

Carver Gayton

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