WSR 01-05-071

EMERGENCY RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed February 15, 2001, 12:57 p.m. ]

Date of Adoption: February 14, 2001.

Purpose: To adopt new regulations clarifying provisions of SHB 3077, which provides for the payment of additional unemployment benefits for qualified dislocated workers enrolled in approved training. The regulations define terms, clarify eligibility requirements, and establish policies and procedures related to the approval and funding of training plans. The rules also clarify requalification requirements for individuals who have been disqualified from benefits.

Citation of Existing Rules Affected by this Order: Repealing WAC 192-16-011 and 192-16-017.

Statutory Authority for Adoption: RCW 50.12.010, 50.20.010, and 50.22.150(10).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: Rules are necessary to clarify several provisions of SHB 3077, and to ensure that it is implemented consistently state wide. The department has held several meetings with stakeholders regarding the content of the final rules. A hearing on the proposed rules developed as a result of these meetings has been scheduled. Emergency rules are needed until permanent rules are adopted.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 17, Amended 0, Repealed 2.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: Immediately.

February 14, 2001

Annette M. Copeland

Assistant Commissioner


NEW SECTION
WAC 192-150-050   Leaving work to accept bona fide job offer--RCW 50.20.050 (2)(a).   If you leave work to accept a bona fide offer of employment, you will have good cause within the meaning of RCW 50.20.050(1) if you satisfactorily demonstrate that:

(1) Prior to leaving work, you received a definite offer of employment; and

(2) You had a reasonable basis for believing that the person making the offer had the authority to do so; and

(3) A specific starting date and the terms and conditions of the employment were mutually agreed upon; and

(4) You continued in your previous employment for as long as was reasonably consistent with whatever arrangements were necessary to start working at the new job; and

(5) The new job is in employment covered by Title 50 RCW or the comparable laws of another state.

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NEW SECTION
WAC 192-150-065   What constitutes an employer-initiated mandatory transfer under RCW 50.20.050 (2)(c)?   If your spouse's employer requires your spouse to relocate to another labor market area to retain a current job or to accept another job with that employer, the relocation will be considered an employer-initiated mandatory transfer. Examples of employer-initiated mandatory transfers include, but are not limited to:

(a) A plant closure where employees must move to another labor market area to continue employment with that employer;

(b) A change in job responsibilities, such as a promotion, with that same employer where the employer requires a move to another labor market area; and

(c) A restructuring of business operations by the employer requiring employees to move to another labor market area if they want to continue doing the same job.

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NEW SECTION
WAC 192-150-085   How to qualify after benefits have been denied.   Benefits may be denied under RCW 50.20.050(1) for voluntarily leaving work, RCW 50.20.060 for being discharged for misconduct, and RCW 50.20.080 for refusing an offer of suitable work or job referral. The denial of benefits will continue indefinitely until you show that:

(1) At least seven calendar weeks have elapsed following the week the act occurred that resulted in the denial of benefits;

(2) You have obtained bona fide work and earned wages of at least seven times your suspended weekly benefit amount. The wages earned must be in employment that is covered by Title 50 RCW or the comparable laws of another state.

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Chapter 192-270

Training Benefits for Dislocated Workers
NEW SECTION
WAC 192-270-005   Definitions.   The definitions below apply to this chapter and RCW 50.22.150:

(1) "Labor market" means the geographic area in which workers in your particular occupation or with your particular set of skills have customarily found work. For the purpose of determining whether you are a dislocated worker, "labor market" is based on your place of residence at the time you separated from employment. You will not be eligible for training benefits if, following your separation from work, you move from a labor market area where your skills are in demand to an area where they are declining.

(2) "NAICS" means the North American industry classification system code.

(3) "Plurality of wages" means the largest proportion of wages earned within a particular occupation or skill set. These wages must be earned in:

(a) Your base year, and

(b) At least two of the four twelve-month periods preceding your base year.

(4) "SIC" means the standard industrial classification code. (5) "Skill set" means the work-related knowledge and abilities needed to produce a particular product or provide a particular service.

(6) "Training benefits" means the additional benefits paid under RCW 50.22.150 to eligible dislocated workers enrolled in and making satisfactory progress in a training program approved by the commissioner.

(7) "Wages" means remuneration earned in employment as defined in Title 50 RCW or the comparable laws of another state. This means that only wages in covered employment can be considered in determining whether you have sufficient tenure in an occupation or in work with a particular skill set.

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NEW SECTION
WAC 192-270-010   Employment separations.   You must have been terminated or received a notice of termination from your employer to be eligible for training benefits. Training benefits are not available if you left work voluntarily as provided in RCW 50.20.050, regardless of whether you had good cause for leaving, or if you are disqualified from benefits for work-related misconduct under RCW 50.20.060, and have not requalified for benefits.

When determining whether your separation from employment makes you eligible for training benefits, the department will look at the last job you held for a period of at least seven weeks that was in employment covered by Title 50 RCW or the comparable laws of another state.

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NEW SECTION
WAC 192-270-015   Unlikely to return to employment.   Except as provided in RCW 50.22.150(3), you are unlikely to return to employment if:

(1) You have:

(a) Become unemployed due to a permanent plant closure;

(b) Received a federal WARN act notice; or

(c) Received a notice of indefinite layoff as a result of a permanent reduction of operations at your place of employment; and

(2) Suitable work for individuals with your skills is in diminishing demand within your labor market.

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NEW SECTION
WAC 192-270-020   Employment in the aerospace industry.   (1) Employment in the following SIC codes is considered employment in the aerospace industry:


3721 Aircraft
3724 Aircraft engines and engine parts
3728 Aircraft parts and auxiliary equipment

(2) Employment in the following NAICS code is considered employment in the aerospace industry:


336411 Aircraft manufacturing

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NEW SECTION
WAC 192-270-025   Employment in the forest products industry.   (1) As provided in RCW 50.22.150(2)(b), the department has determined that employment in industries assigned the following SIC or NAICS codes is considered employment in the forest products industry:

(a) SIC codes:


24 Lumber and wood products, except furniture
26 Paper and allied products
08 Forestry
2861 Gum and wood chemicals
3553 Woodworking machinery
3554 Paper industry machinery manufacturing
5031 Lumber, plywood, millwork and wood panels

(b) NAICS codes:
321 Wood product manufacturing
322 Paper manufacturing
113110 Timber tract operations
113210 Forest nurseries and gathering of forest products
113310 Logging
115310 Support activities for forestry
325191 Gum and wood chemical manufacturing
333210 Sawmill and woodworking machinery manufacturing
333291 Paper industry machinery manufacturing
337110 Wood kitchen cabinet and countertop manufacturing
421310 Lumber, plywood, millwork and wood panel wholesalers

(2) The department further determines that employment reported in industries assigned the following SIC or NAICS codes may be employment in the forest products industry. The department may review the specific nature of the employer's business to determine whether it represents employment in the forest products industry:


(a) SIC codes:

2823 Cellulosic manmade fibers
3425 Saw blades and handsaws
4212 Local trucking without storage (log trucking; trucking timber)
4449 Water transportation of freight, NEC (log rafting and towing)
5113 Industrial and personal service paper

(b) NAICS codes:
325221 Cellulosic organic fiber manufacturing
332213 Saw blade and handsaw manufacturing
337215 Showcase, partition, shelving and locker manufacturing
422130 Industrial and personal service paper wholesalers

(3) Other employment may be considered to be employment in the forest products industry if it involves:

(a) The planting and/or cultivation of trees for eventual harvest for lumber or paper manufacturing;

(b) The harvest of logs for lumber or pulp production;

(c) Hauling or shipping logs;

(d) Hauling or shipping lumber or paper products from point of manufacture;

(e) Scaling logs;

(f) Repair of logging trucks or equipment;

(g) Manufacture of wood processing, logging or forestry equipment, including but not limited to logging trucks, log splitters, draglines, or chippers;

(i) Sale, rental or leasing of wood processing or logging equipment; or

(j) Other activities clearly involved in the forest products industry, even if performed for an employer whose primary business is not in the forest products industry.

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NEW SECTION
WAC 192-270-030   Employment in the fishing industry.   Employment reported in industries assigned SIC code 0912, Finfish (commercial fishing), or NAICS code 114111, Fishing (finfish), is considered to be employment in the fishing industry.

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NEW SECTION
WAC 192-270-035   Timeframes.   Information about training benefits will be included in the claimant information booklet mailed to you at the time you file your application for unemployment benefits (see WAC 192-120-010).

(1) Submitting a training plan. You have 60 calendar days to submit a training plan to the department for approval, beginning on the date you are notified by the department about the eligibility requirements for training benefits. For new claims, the deadline will be 65 calendar days from the date your application for benefits is filed, which represents 60 days plus five days for the booklet to reach you by mail.

(2) Enrollment in training. You must be enrolled in training within 90 calendar days, beginning on the date you are notified by the department about the eligibility requirements for training benefits. For new claims, the deadline will be 95 calendar days from the date your application for benefits is filed, which represents 90 days plus five days for the booklet to reach you by mail.

(3) If you return to work, and subsequently become unemployed, the timeframes described in subsections (1) and (2) begin with the date you file your additional claim for benefits.

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NEW SECTION
WAC 192-270-040   Enrollment in training.   To receive training benefits, you must be enrolled in an approved training program on a full-time basis as determined by the educational institution. You are enrolled in training if:

(1) You have preregistered for classes or are on a waiting list; and

(2) You have a starting date of training; and

(3) The starting date is not more than one quarter or term away.

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NEW SECTION
WAC 192-270-045   Requirements for applying for training benefits.   The following information must be included in your application for training benefits:

(1) Your name and Social Security account number;

(2) The name of the educational institution;

(3) The address of the educational institution;

(4) The department of the educational institution, if applicable;

(5) The name of the training program;

(6) A description of the training program, including remedial requirements if necessary;

(7) Your enrollment date or your place on the waiting list and expected enrollment date;

(8) The duration of the training program, including the dates you plan to begin and complete training;

(9) The occupation(s) trained for;

(10) A verification of your enrollment provided by the educational institution;

(11) A release of information form authorizing the educational institution to release grades, attendance, and other measures of program progress to the department; and

(12) Your signature.

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NEW SECTION
WAC 192-270-050   Criteria for approving training plans.   (1) The department will consider the following factors when reviewing your application for training benefits:

(a) Whether you have a current benefit year as required by RCW 50.22.010(9);

(b) Whether suitable employment is available in your labor market;

(c) Your plan for completion of the training including, but not limited to, what financial resources you intend to use to fund the complete training plan when training benefits run out;

(d) Whether you have the qualifications and aptitudes to successfully complete the training;

(e) Whether the training relates to a high demand occupation, meaning that the number of job openings in the labor market for the occupation or with that skill set exceeds the supply of qualified workers;

(f) Whether the training is likely to enhance your marketable skills and earning power, based on an assessment of what your employment prospects would be if training were not approved; and

(g) Effective July 1, 2001, whether the educational institution meets the performance criteria established by the workforce training and education coordinating board. Until June 30, 2001, a vocational training program at an educational institution is presumed to meet the performance criteria if it is a:

(i) Public community or technical college;

(ii) Public university;

(iii) Registered apprenticeship program;

(iv) Private vocational school licensed by the workforce training and education board, the higher education coordinating board, the department of licensing, or a comparable agency in another state;

(v) Private college or university that is eligible to received federal funds under Title IV of the Higher Education Act of 1965; or

(vi) Private provider of vocational training services currently authorized by a private industry council in accordance with P.L. 97-300, Section 107, Selection of Service Providers.

(2) Academic training may be approved if it meets the criteria of subsection (1) and it meets specific requirements for certification, licensing, or specific skills necessary for the occupation.

(3) The department may approve educational training that has been identified as necessary by the training facility as a prerequisite to a vocational training program that meets the criteria of subsection (1).

(4) In the case of individuals with physical or sensory disabilities, or in other unusual circumstances, a written decision of the commissioner may waive any of the requirements of this section on an individual basis.

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NEW SECTION
WAC 192-270-055   Funding -- Waiting lists.   Payment of training benefits is contingent upon the availability of funding. Training will not be approved under RCW 50.22.150 unless the department has determined that funds are available to support your training plan.

(1) The amount of funds obligated will be the amount necessary to complete your training plan or the maximum amount authorized by RCW 50.22.150 (5)(a), whichever is less.

(2) If you have been denied training benefits due to lack of funds, the department will consider whether you are eligible for commissioner approved training under WAC 192-200-020.

(3) Funds will be obligated in the following order:

(a) First, otherwise eligible dislocated workers who are enrolled in training approved by the department as of February 13, 2000;

(b) Second, other eligible dislocated workers on a first-come, first-served basis, determined by the date the completed training application is received by the department.

(4) Once all available funds have been obligated, individuals who have been denied training benefits due solely to the lack of funds will be placed on a waiting list. Priority on the waiting list will be determined by the date the claimant's completed training application was received by the department. As additional funds become available, this date will be used when obligating funds to claimants on the waiting list. In the event two or more claimants on the waiting list have the same date, priority will be given to that person who is closest to exhausting regular unemployment benefits.

(5) An individual's name may be removed from the waiting list, upon written notice, when the department determines it is appropriate. Examples include, but are not limited to:

(a) Written correspondence to the claimant from the department is returned by the U.S. postal service for lack of a current address, and the claimant has not filed a change of address with the department;

(b) The claimant fails to respond to written correspondence from the department by the date indicated in the correspondence;

(c) The claimant is not enrolled in or making satisfactory progress in full-time training; or

(d) Implementation of the approved training program would result in benefits being paid more than two years beyond the end of the claimant's benefit year.

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NEW SECTION
WAC 192-270-060   Occupation in high demand outside labor market.   A training plan may be approved in an occupation not in demand in your local labor market if:

(1) The occupation is in high demand in another labor market; and

(2) You are willing and able to relocate to that labor market when the training is completed; and

(3) There is not a current demand for workers with your present skills in that labor market. The demand for workers in that labor market must be at wages comparable to those paid in your current labor market, based on any differences in the cost of living between the two areas.

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NEW SECTION
WAC 192-270-065   Certification of satisfactory progress.   (1) In order to continue your eligibility for training benefits, the certification that you are making satisfactory progress in full-time training must be signed by the registrar or an equivalent person designated by your educational institution.

(2) Except as provided in subsection (3), for training benefits purposes the term "satisfactory progress" means:

(a) Your grade point average does not fall below 2.0 for more than one quarter;

(b) You maintain a grade point average sufficient to graduate from, or receive certification in, your approved area of study; and

(c) You are completing sufficient credit hours to finish your approved course of study within the time frame established under your approved training plan.

(3) In the case of self-paced or ungraded learning programs, "satisfactory progress" means participating in classes and passing certification examinations within the time frame established under your approved training plan.

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NEW SECTION
WAC 192-270-070   Modifying a training plan.   (1) You must notify the department prior to making a significant modification to your approved training plan. A significant modification is one that impacts any of the approval criteria listed in WAC 192-270-050 and includes, but is not limited to, changes in:

(a) Your course of study or major;

(b) The educational institution;

(c) The projected start or end dates for the training; or

(d) Your enrolled credit hours.

(2) The department must determine your continued eligibility for training benefits any time you make a significant modification to your training plan, using the criteria listed in WAC 192-270-050 (1)(b)-(g). Approval of a modification that increases the projected cost of the training is subject to the availability of funding. The department will conditionally pay benefits on a modified training plan until the modification is approved or denied.

(3) In general, you may make a significant modification to your plan one time. Subsequent modifications will not be approved except in unusual individual circumstances. However, this restriction does not apply while you are enrolled in educational courses that are a prerequisite to vocational training.

(4) If you modified your training plan without approval by the department, and that modification is subsequently disapproved, you are ineligible for training benefits for at least five years.

(5) Any benefits paid for a modified training plan that is not approved by the department constitute an overpayment and shall be subject to recovery under RCW 50.20.190.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 192-16-011 Interpretative regulations--Leaving work to accept bona fide job offer--RCW 50.20.050 (2)(a)
WAC 192-16-017 Interpretative regulations--Satisfying disqualifications under RCW 50.20.050 (1) and (4), 50.20.060 and 50.20.080

Washington State Code Reviser's Office