Date of Adoption: May 8, 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).

Adopted under notice filed as WSR 01-05-118 on February 21, 2001.

Changes Other than Editing from Proposed to Adopted Version: Minor wording changes to WAC 192-150-065, 192-270-005, 192-270-015, and 192-270-050 to clarify the rules and ensure consistency with the statute. The changes are not substantive.

WAC 192-150-065 What constitutes an employer-initiated mandatory transfer under RCW 50.20.050 (2)(c)?

     At the end of subsection (b), changed "and" to "or." Changed the words at the end of subsection (c) from "doing the same job" to "in their customary occupation." Minor wording changes to clarify the meaning of the proposed rule. The changes are not substantive.

WAC 192-270-005 Definitions.

     Change the language in subsection (1) to clarify that an individual who relocates from a labor market where his or her skills are in demand to one in which those skills are declining will not be considered a dislocated worker.

WAC 192-270-015 Unlikely to return to employment.

     Changed opening statement to read, "Except as provided in RCW 50.22.150(3), the term 'unlikely to return to employment' means, but is not limited to, situations where:". This clarifies confusion over the intent of the rule expressed by agency staff. The change is not substantive.

WAC 192-270-050 Criteria for approving training plans.

     Added language to subsection (b) clarifying that an individual will not be eligible for training benefits if he or she has moved to an area where their skills are in demand, obviating the need for retraining. This is consistent with the statute prohibiting the payment of training benefits to individuals for whom suitable employment is available.

     Delete language in subsection (g) beginning with "Until June 30, 2001..." through the end of the subsection. Due to the length of time it has taken to finalize these rules, the permanent rules will become final shortly before June 30, 2001, when this language will become obsolete. Emergency rules are in effect to cover this brief period of time.

SUMMARY AND RESPONSE TO COMMENTS RECEIVED

Request: WAC 192-150-050 and 192-150-065 do not consider the challenges of agricultural work.

Reasons Why Not Incorporated in Final Rule: It is unclear what change to the proposed rules is being requested. However, we do not see a need for a distinction between agricultural and other work.

Request: In WAC 192-150-065 (b) and (c), sees no actual requirement imposed by the employer that the individual has to move.

Reasons Why Not Incorporated in Final Rule: We have reviewed the language of the proposed rule and both subsections cited contain language that the employer must require the move for the individual to be eligible under RCW 50.20.050 (2)(c). Subsection (b) addresses situations where an employer wishes to promote an individual, but requires a move to accept that promotion. We have made a minor change to subsection (c) clarifying that the restructuring of the employer's business will require the employee to move if they wish to continue working in their customary occupation.

Request: Amend definition of "labor market" to clarify that an individual will not be eligible for training benefits if he or she moves from a labor market where his/her skills are declining to one where those skills are in demand, thus mitigating the need for training.

Incorporated in Final Rule: The requested language was added to WAC 192-270-050 (1)(b).

Request: Reconsider NAICS codes listed in WAC 192-270-025; not sure all are related to the forest products industry.

Reasons Why Not Incorporated in Final Rule: We have reviewed the remaining NAICS codes again and believe those remaining are related to the forest products industry. The industrial codes are divided into categories, those that will be considered employment in the forest products industry, and those that may be considered employment in the forest products industry, depending on the specific nature of the employer's business.

Request: With reference to WAC 192-270-065, a 2.0 grade point average is an insufficient standard for measuring satisfactory progress because of problems with grade inflation. Asks department to consider a higher standard.

Reasons Why Not Incorporated in Final Rule: The 2.0 grade point average is the standard used by postsecondary schools for determining eligibility for financial aid. It is also the standard used in the worker retraining programs administered by the State Board for Community and Technical Colleges. We see no compelling reason to deviate from this standard.

Request: WAC 192-270-070 Modifying a training plan -- Benefits should not be paid under a modified training plan until the modification is approved, thus eliminating overpayments.

Reasons Why Not Incorporated in Final Rule: When a claimant is in continued claim status, the department may not legally stop issuing payments without advising the claimant of a potential issue and providing the claimant the opportunity to respond. The rule has already been amended to state that benefits will be paid conditionally pending a decision about whether the modification can be approved; if not approved, the conditional payments will be subject to recovery.

Request: Training benefits should not be available to claimants whose skills are in demand in any labor market in the state of Washington.

Reasons Why Not Incorporated in Final Rule: The department does not have the authority to condition the payment of benefits on an individual's relocation to another labor market area. There is nothing in the history of this legislation indicating that this was the intent of the legislature when adopting these additional benefits for training.

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 0, Amended 0, Repealed 0.

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.

May 11, 2001

Paul Trause

Acting Commissioner

     (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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     (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; or

     (c) A restructuring of business operations by the employer requiring employees to move to another labor market area if they want to continue in their customary occupation.

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     (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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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 considered a dislocated worker 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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     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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     (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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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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     (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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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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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     (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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     (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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     (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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     (a) Whether you have a current benefit year as required by RCW 50.22.010(9);

     (b) Whether suitable employment is available in the labor market in which you currently reside (if you were originally determined to be a dislocated worker, but moved from the area where your skills were declining to an area where your skills are in demand, you are not eligible for training benefits);

     (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.

     (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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     (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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     (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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     (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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     (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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     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

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