Date of Adoption: September 25, 2001.

Purpose: Amend the regulations regarding eligibility for unemployment benefits of employees of educational institutions to make them consistent with the law as modified by the 2001 legislature. The rules define terms, clarify how the department will determine if an individual has reasonable assurance of continued employment, and further clarify how reasonable assurance will be determined for instructional, research, or principal administrative staff at community and technical colleges.

Citation of Existing Rules Affected by this Order: Amending WAC 192-210-005 and 192-210-015.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040.

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: RCW 50.44.053 was amended by the 2001 legislature. These amendments apply to weeks of unemployment that began after March 31, 2001. Rules were adopted on an emergency basis that were consistent with the new law to guide the department in making eligibility decisions during the 2001 summer term or break. Stakeholders have requested additional time to evaluate the impact of these rules on educational employees before the department adopts permanent rules. The emergency rules are extended to continue to provide the department with guidance during school breaks that occur while the permanent rules are reviewed.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 2, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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

September 25, 2001

Dr. Sylvia P. Mundy

Commissioner

(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.

[Statutory Authority: RCW 50.12.010, 50.12.040 and 50.20.010. 99-18-066, 192-210-005, filed 8/31/99, effective 10/1/99.]

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.
AMENDATORY SECTION(Amending WSR 99-18-066, filed 8/31/99, effective 10/1/99)

WAC 192-210-015   How will the department decide if reasonable assurance exists? -- RCW 50.44.053.   (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. For instructional, research, or principal administrative staff at a community or technical college, the additional provisions of WAC 192-210-020 will be considered in determining whether the individual has reasonable assurance.

(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).

[Statutory Authority: RCW 50.12.010, 50.12.040 and 50.20.010. 99-18-066, 192-210-015, filed 8/31/99, effective 10/1/99.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 192-210-020   Reasonable assurance for instructional, research, or principal administrative staff at a community or technical college -- RCW 50.44.053(3).   (1) A person who performs services in an instructional, research, or principal administrative capacity at a community or technical college is presumed not to have reasonable assurance when an offer is conditioned on enrollment, funding, or program changes.

(2) A conditional or contingent offer of employment is any offer other than an agreement that is binding on the college to provide work and on the individual to perform services.

(3) The assertion by the college that an individual has reasonable assurance of continued employment is insufficient to overcome the presumption that a conditional or contingent offer of employment does not constitute reasonable assurance unless supported by documentation explaining why reasonable assurance exists. The college bears the burden of providing the department with this documentation. Primary weight will be given to the contingent nature of the offer of employment.

(4) Whether an individual has reasonable assurance from the college will be determined on a case by case basis by the total weight of evidence, rather than the existence of any single factor.

(5) Examples of the types of evidence the department will consider in deciding whether the college has overcome the presumption that a conditional or contingent offer is not reasonable assurance include, but are not limited to, the following:

(a) The terms of the offer of employment between the individual and the college, with consideration given to any provisions related to length, contingencies, or reasons for cancellation;

(b) The number of comparable positions at the college;

(c) Any hiring priorities used by the college;

(d) The college's past practices, including the individual's previous experience with similar offers of employment from that college, and whether any classes have been canceled due to lack of enrollment, lack of funding, or program changes.

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Washington State Code Reviser's Office