EMPLOYMENT SECURITY DEPARTMENT

[Filed November 6, 2019, 8:10 a.m.]

Preproposal statement of inquiry was filed as WSR 19-07-041.

Title of Rule and Other Identifying Information: WAC 192-170-010 Availability for work—RCW 50.20.010, setting requirements for when claimants are eligible for unemployment benefits while physically located outside of the United States.

Hearing Location(s): On December 12, 2019, at 9 a.m., at the Employment Security Department, 212 Maple Park Avenue, Commissioner's Conference Room, Olympia, WA 98501

Date of Intended Adoption: January 10, 2020.

Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, fax 844-652-7096, by December 11, 2019.

Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email teckstein@esd.wa.gov, by December 5, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The amended rule sets requirements for when claimants are eligible for unemployment benefits while physically located outside of the United States by amending WAC 192-170-010.

Reasons Supporting Proposal: The commissioner issued a precedential decision (In re McConnell, Empl. Sec. Comm'r Dec.2d 1005 (2016)) that holds that claimants can still be eligible for unemployment benefits even when they are physically located outside of the United States. Rule making is needed to set clear standards for when claimants are or are not eligible for unemployment benefits while physically located in another country.

Amending rules regarding eligibility for benefits when physically located outside of the United States will provide benefits for certain claimants and expand options for claimants to look for opportunities to return to work in industries with trans global footprints. This supports the department's mission to develop the nation's best and most future ready workforce with opportunities for all.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to the employment security department. RCW 50.12.042 and 50.20.010 provide specific rule-making authority regarding the requirement that unemployment claimants register for work, be able to work, be available for work, and actively seek work.

Statute Being Implemented: RCW 50.20.010.

Rule is necessary because of state court decision, In re McConnell, Empl. Sec. Comm'r Dec.2d 1005 (2016).

Name of Proponent: Employment security department, governmental.

Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, 360-890-9579.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, email Rules@esd.wa.gov, https://esd.wa.gov/newsroom/ui-rule-making/.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. The following analysis assumes that all previous unemployment claims that were denied because the claimant was out of the country would instead be allowed. In reality, the proposed rule does not state that all persons who file unemployment claims from outside of the country are automatically eligible for unemployment benefits, and it is likely that at least some of the previous claims that were denied before would still be denied under the proposed rule. Therefore, the following analysis presents a "worst-case scenario" and likely overstates the potential economic impacts of the proposed rule.

From January 2017 through August 2019, there were one hundred three claims denied for being out of the country. With the proposed rule, the potential benefits paid during this time period would include an average weekly benefit amount of $531 over twenty-six weeks. This average weekly benefit amount represents $13,806 in additional charged benefits per claim.

When considering the total claims spread across the statewide employer base, the proposed rule would have a negligible impact on total costs. The charged benefits from the one hundred three claims would increase each employers' average charged benefits by $2.99 per year. An increase of this size is not likely to increase the tax liability for any employer.

AMENDATORY SECTION(Amending WSR 10-11-046, filed 5/12/10, effective 6/12/10)

WAC 192-170-010Availability for work—RCW 50.20.010.

(1) In general, the department will consider you available for work if you:

(a) Are willing to work full-time, part-time, and accept temporary work during all of the usual hours and days of the week customary for your occupation.

(i) You are not required to be available for part-time or temporary work if it would substantially interfere with your return to your regular occupation.

(ii) The requirement to be available for full-time work does not apply under the circumstances described in WAC 192-170-050 (1)(b) or 192-170-070;

(b) Are capable of accepting and reporting for any suitable work within the labor market in which you are seeking work;

(c) Do not impose conditions that substantially reduce or limit your opportunity to return to work at the earliest possible time;

(d) Are available for work during the hours customary for your trade or occupation; and

(e) Are physically present in your normal labor market area, unless you are actively seeking and willing to accept work outside your normal labor market.

(2) You are not considered available for work if you fail or refuse to seek work as required in a directive issued by the department under WAC 192-180-010.

(3) If you are physically located outside of the United States, Puerto Rico, or the U.S. Virgin Islands, the department will consider you available for work if you meet the requirements of subsections (1) and (2) of this section, and:

(a) You are legally authorized to work in the country in which you are physically located;

(b) You are immediately available for work in the United States; or

(c) You are a spouse or domestic partner of a member of the United States Armed Forces and you are legally authorized to work within the foreign military base where your spouse or domestic partner is stationed.