PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-01-160.
Title of Rule: Employer-initiated layoffs or reductions in force.
Purpose: To add a new section to chapter 192-150 WAC clarifying that an individual who volunteers for layoff will not be considered to have separated from work for a disqualifying reason when the layoff is initiated and announced by the employer and the employer takes the final action to terminate the employer-employee relationship.
Other Identifying Information: The proposed rule replaces WAC 192-16-070 Interpretive regulations -- Voluntary quit -- RCW 50.20.050. As part of the department's ongoing regulatory improvement efforts, rules are being organized under appropriate chapter titles to make them easier for the public to access.
Statutory Authority for Adoption: RCW 50.12.010, 51.12.040.
Statute Being Implemented: RCW 50.20.050 and 50.20.060.
Summary: The rule provides that, under certain conditions, an individual who volunteers for layoff will not be considered to have left work for a disqualifying reason. The conditions require that the employer take the first action by announcing plans to reduce its workforce, and the final action by terminating the individual's employment. The rule excludes those situations in which an employer modifies benefits to encourage early retirements, but does not announce an intention to reduce the workforce.
Reasons Supporting Proposal: Recent conflicting opinions by Divisions I and III of the Court of Appeals have resulted in confusion regarding how the current rule is to be interpreted. The department proposes this rule to clarify the conditions under which benefits will be paid to individuals participating in an employer-instituted layoff or reduction in force.
Name of Agency Personnel Responsible for Drafting: Juanita Myers, Olympia, Washington, (360) 902-9665; Implementation and Enforcement: Annette Copeland, Olympia, Washington, (360) 902-9303.
Name of Proponent: Employment Security Department, governmental.
Rule is necessary because of state court decision, Ortega v. ESD, 90 Wn. App. 617, 953 P.2d 827 (1998) and Nielson v. ESD, 99 Wn. App. 21, 966 P.2d 399 (1998).
Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule replaces WAC 192-16-070, which was adopted in 1993 in response to changes in the Washington state economy and workforce needs. The purpose of the rule was to benefit employers by allowing them to broaden their choices in determining which workers to lay off as a result of a reduction in their workforce, while minimizing the negative impacts to those workers by clarifying that participation in such a layoff will not in itself make them ineligible for unemployment benefits. Conflicting published opinions from the state Court of Appeals have resulted in confusion over how the current rule is to be interpreted. The proposed rule clarifies the department's position that, when the first and last actions in the termination are taken by the employer, the worker will not be considered to have been separated from work for a disqualifying reason.
Proposal Changes the Following Existing Rules: An existing rule, WAC 192-16-070, is repealed and replaced by WAC 192-150-100. The new rule is similar to the existing rule, but adds language clarifying that the first and final steps in the layoff must be taken by the employer. Language is also added clarifying that the rule does not apply in situations when an employer modifies benefits in an effort to encourage early retirement or staff turnover, but does not announce plans to reduce the workforce.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule clarifies, but does not change, existing policy. The clarifications will not impose additional costs on business.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The proposed rule clarifies, but does not change, existing policy and procedure.
Hearing Location: Commissioner's Conference Room, 2nd Floor, Employment Security Department, 212 Maple Park, Olympia, WA, on March 14, 2001, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Karen LaFreniere by March 13, 2001, TDD (360) 902-9589, or (360) 902-9582.
Submit Written Comments to: Barney Hilliard, Rules Coordinator, P.O. Box 9046, Olympia, WA 98507-9046, fax (360) 438-3225, by March 13, 2001.
Date of Intended Adoption: March 21, 2001.
February 5, 2001
Paul Trause
Acting Commissioner
(a) Your employer takes the first action in the separation process by announcing to its employees that the employer plans to reduce its work force and that employees can offer to be one of the employees included in the layoff or reduction-in-force;
(b) Your offer to be one of the employees included in the layoff or reduction-in-force; and
(c) Your employer takes the final action in the separation process by accepting your offer to be one of the employees included in the layoff or reduction-in-force, thereby ending the employment relationship.
(2) This section does not apply to situations where an employer modifies benefits in a manner to encourage early retirement or early separation, but the employer and employee do not follow the steps in subsection (1)(a) through (c).
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The following section of the Washington Administrative Code is repealed:
| WAC 192-16-070 | Interpretive regulations -- Voluntary quit -- RCW 50.20.050 |