PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 01-10-117.
Title of Rule: WAC 192-210-005 Definitions -- Educational employees, 192-210-015 How will the department decide if reasonable assurance exists?, and 192-210-020 Reasonable assurance for instructional, research, or principal administrative staff at a community or technical college.
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.
Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040.
Statute Being Implemented: RCW 50.44.050 and 50.44.053.
Summary: 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.
Reasons Supporting Proposal: The existing rules need to be amended to make them consistent with the law as amended in 2001.
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 not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: In 2002 [2001], the legislature amended the law relating to eligibility for unemployment benefits of educational employees. The statute provides additional clarification regarding the circumstances under which instructional, research, and principal administrative staff at community or technical colleges are considered to have reasonable assurance of continuing employment. This proposal amends existing rules to be consistent with the amended law, and describes the criteria the department will use to determine whether community and technical college faculty have reasonable assurance of returning to work in the next term. These regulations will provide for consistency of interpretation by the department, the employers, and by those employees who file claims for unemployment benefits.
Proposal Changes the Following Existing Rules: WAC 192-210-005(1) is amended to delete references to tenure or tenure track status employees. This provision is now contained in the law and inclusion here would be redundant.
WAC 192-210-015 is amended to eliminate the list of factors that will be considered when determining if educational employees have reasonable assurance of continuing employment. A separate listing of factors to be used in determining whether community and technical college faculty have reasonable assurance is now incorporated in new WAC 192-210-020.
No small business economic impact statement has been prepared under chapter 19.85 RCW. All regulations contained within this filing pertain only to educational institutions. No private businesses are impacted by the proposed regulations.
RCW 34.05.328 does not apply to this rule adoption. The proposed revisions simply modify existing regulations for consistency with the amended law. The changes do not substantially change policy from that which existed prior to the change in law.
Hearing Location: Employment Security Department, 4th Floor Conference Room A, 212 Maple Park, Olympia, WA, on July 10, 2002, at 1:30 p.m.
Assistance for Persons with Disabilities: Contact Karen LaFreniere by July 9, 2002, TDD (360) 902-9589, or (360) 902-9582.
Submit Written Comments to: Barney Hilliard, Rules Coordinator, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, fax (360) 438-3226, by July 9, 2002.
Date of Intended Adoption: July 19, 2002.
June 3, 2002
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 the 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 assurnance 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: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
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.
Reviser's note: The spelling 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 192-210-020
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 cancelled due to lack of enrollment, lack of funding, or program changes.
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