2013 -- S 0571

=======

LC01446

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - EMPLOYMENT SECURITY -

BENEFITS

     Introduced By: Senators Lynch, Gallo, McCaffrey, and Lombardo

     Date Introduced: February 28, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Section 28-44-69 of the General Laws in Chapter 28-44 entitled

1-2

"Employment Security – Benefits" is hereby amended to read as follows:

1-3

      28-44-69. Work-sharing benefits. -- (a) Definitions. As used in this section, unless the

1-4

context clearly requires otherwise:

1-5

        (1) "Affected unit" means a specified plant, department, shift, or other definable unit

1-6

consisting of two (2) or more employees to which an approved work-sharing plan applies.

1-7

        (2) "Eligible employee" means an individual who usually works thirty (30) hours or

1-8

more per week for the employer submitting a work-sharing plan.

1-9

        (3) "Eligible employer" means any private employer who has had contributions credited

1-10

to his or her account and benefits have been chargeable to this account, and who is not delinquent

1-11

in the payment of contributions or reimbursements, as required by chapters 42 – 44 of this title.

1-12

        (4) "Fringe benefits" include, but are not limited to, health insurance, retirement

1-13

benefits, paid vacation and holidays, sick leave, and similar advantages that are incidents of

1-14

employment.

1-15

        (5) "Intermittent employment" means employment which is not continuous but may

1-16

consist of periodic intervals of weekly work and intervals of no weekly work.

1-17

        (6) "Seasonal employment" means employment with an employer who displays a

1-18

twenty percent (20%) difference between its highest level of employment and its lowest level of

1-19

employment each year for the three (3) previous calendar years as reported to the department of

2-1

labor and training, or as shown in the information which is available and satisfactory to the

2-2

director.

2-3

        (7) "Temporary layoffs" for this purpose means the separation of workers in the

2-4

affected unit for an indefinite period expected to last for at least two (2) months but less than six

2-5

(6) months. "Temporary employment" means employment where an employee is expected to

2-6

remain in a position for only a limited period of time and/or is hired by a temporary agency to fill

2-7

a gap in an employer’s workforce.

2-8

        (8) "Usual weekly hours of work" means the normal hours of work each week for an

2-9

employee in an affected unit when that unit is operating on a full-time basis, not to exceed forty

2-10

(40) hours and not including overtime.

2-11

        (9) "Work-sharing benefits" means benefits payable to employees in an affected unit

2-12

under an approved work-sharing plan.

2-13

        (10) "Work-sharing employer" means an employer with an approved work-sharing plan

2-14

in effect.

2-15

        (11) "Work-sharing plan" means a plan submitted by an employer under which there is

2-16

a reduction in the number of hours worked by the employees in the affected unit in lieu of

2-17

temporary layoffs of some of the employees.

2-18

        (b) Criteria for approval of a work-sharing plan. An employer wishing to participate in

2-19

the work-sharing program shall submit a signed written work-sharing plan to the director for

2-20

approval. The director shall approve a work-sharing plan only if the following requirements are

2-21

met:

2-22

        (i) The plan identifies the affected unit or units and specifies the effective date of the

2-23

plan;

2-24

        (ii) The employees in the affected unit or units are identified by name, social security

2-25

number, the usual weekly hours of work, proposed wage and hour reduction, and any other

2-26

information that the director shall require;

2-27

        (iii) The plan certifies that the reduction in the usual weekly hours of work is in lieu of

2-28

temporary layoffs which would have affected at least 10 percent (10%) of the employees in the

2-29

affected unit or units to which the plan applies and which would have resulted in an equivalent

2-30

reduction in work hours;

2-31

        (iv) The usual weekly hours of work for employees in the affected unit or units are

2-32

reduced by not less than 10 percent (10%) and not more than 50 percent (50%), and the reduction

2-33

in hours in each affected unit are spread equally among employees in the affected unit;

3-34

        (v) The plan specifies the manner in which the fringe benefits of the participating

3-35

employees will be affected If the employer provides health benefits and/or retirement benefits

3-36

under a defined benefit plan (as defined in section 414(j) of the internal revenue code) or

3-37

contributions under a defined contribution plan (as defined in section 414(i) of the internal

3-38

revenue code) to any employee whose workweek is reduced under the program, the employer

3-39

certifies that such benefits will continue to be provided to employees participating in the work-

3-40

sharing program under the same terms and conditions as though the workweek of such employee

3-41

had not been reduced or to the same extent as other employees not participating in the work-

3-42

sharing program;

3-43

        (vi) In the case of employees represented by a collective bargaining agent or union, the

3-44

plan is approved in writing by the collective bargaining agents or unions that cover the affected

3-45

employees. In the absence of any collective bargaining agent or union, the plan must contain a

3-46

certification by the employer that the proposed plan, or a summary of the plan, has been made

3-47

available to each employee in the affected unit;

3-48

        (vii) The plan will not serve as a subsidy of seasonal employment during the off season,

3-49

nor as a subsidy for temporary or intermittent employment; and

3-50

        (viii) The employer agrees to furnish reports relating to the proper conduct of the plan

3-51

and agrees to allow the director or his or her authorized representatives access to all records

3-52

necessary to verify the plan prior to approval and, after approval, to monitor and evaluate

3-53

application of the plan.

3-54

     (ix) The employer describes the manner in which the requirements of this section will be

3-55

implemented (including a plan for giving notice, where feasible, to an employee whose

3-56

workweek is to be reduced) together with an estimate of the number of layoffs that would have

3-57

occurred absent the ability to participate in the work-sharing program and such other information

3-58

as the secretary of labor determines is appropriate;

3-59

     (x) The employer attests that the terms of the employer’s written plan and

3-60

implementation are consistent with the employer’s obligations under applicable federal and state

3-61

laws.

3-62

      (2) In addition to the matters previously specified in this section, the director shall take

3-63

into account any other factors that may be pertinent to proper implementation of the plan.

3-64

      (c) Approval or rejection of the plan. The director shall approve or reject a plan in

3-65

writing. The reasons for rejection shall be final and not subject to appeal. The employer shall be

3-66

allowed to submit another plan for consideration and that determination will be made based upon

3-67

the new data submitted by the interested employer.

4-68

      (d) Effective date and duration of the plan. A plan shall be effective on the date specified

4-69

in the plan or on the first Sunday following the date on which the plan is approved by the director,

4-70

whichever is later. It shall expire at the end of the twelfth (12th) full calendar month after its

4-71

effective date or on the date specified in the plan if that date is earlier; provided, that the plan is

4-72

not previously revoked by the director. If a plan is revoked by the director, it shall terminate on

4-73

the date specified in the director's written order of revocation.

4-74

      (e) Revocation of approval. The director may revoke approval of a work-sharing plan for

4-75

good cause. The revocation order shall be in writing and shall specify the date the revocation is

4-76

effective and the reasons for it. The revocation order shall be final and not subject to appeal.

4-77

      (2) Good cause shall include, but not be limited to, failure to comply with assurances

4-78

given in the plan, unreasonable revision of productivity standards for the affected unit, conduct or

4-79

occurrences tending to defeat the intent and effective operation of the plan, and violation of any

4-80

criteria on which approval of the plan was based.

4-81

      (3) The action may be taken at any time by the director on his or her own motion, on the

4-82

motion of any of the affected unit's employees or on the motion of the collective bargaining agent

4-83

or agents. The director shall review the operation of each qualified employer plan at least once

4-84

during the period the plan is in effect to assure its compliance with the work-sharing

4-85

requirements.

4-86

      (f) Modification of the plan. An operational approved work-sharing plan may be

4-87

modified by the employer with the consent of the collective bargaining agent or agents, if any, if

4-88

the modification is not substantial and is in conformity with the plan approved by the director,

4-89

provided the modifications are reported promptly to the director by the employer. If the hours of

4-90

work are increased or decreased substantially beyond the level in the original plan, or any other

4-91

conditions are changed substantially, the director shall approve or disapprove the modifications

4-92

without changing the expiration date of the original plan. If the substantial modifications do not

4-93

meet the requirements for approval, the director shall disallow that portion of the plan in writing.

4-94

The decision of the director shall be final and not subject to appeal.

4-95

      (g) Eligibility for work-sharing benefits. An individual is eligible to receive work-

4-96

sharing benefits, subsequent to serving a waiting period as prescribed by the director, with respect

4-97

to any week only if, in addition to meeting other conditions of eligibility for regular benefits

4-98

under this title that are not inconsistent with this section, the director finds that:

4-99

      (i) During the week, the individual is employed as a member of an affected unit under an

4-100

approved work-sharing plan that was approved prior to that week, and the plan is in effect with

4-101

respect to the week for which work-sharing benefits are claimed;

5-102

      (ii) The individual is able to work and is available for the normal work week with the

5-103

work-sharing employer.

5-104

      (2) Notwithstanding any other provisions of this chapter to the contrary, an individual is

5-105

deemed unemployed in any week for which remuneration is payable to him or her as an employee

5-106

in an affected unit for less than his or her normal weekly hours of work as specified under the

5-107

approved work-sharing plan in effect for the week.

5-108

      (3) Notwithstanding any other provisions of this title to the contrary, an individual shall

5-109

not be denied work-sharing benefits for any week by reason of the application of provisions

5-110

relating to the availability for work and active search for work with an employer other than the

5-111

work-sharing employer.

5-112

     (4) Notwithstanding any other provisions of this title to the contrary, eligible employees

5-113

may participate, as appropriate, in training (including employer-sponsored training or worker

5-114

training funded under the workforce investment act of 1998) to enhance job skills if such program

5-115

has been approved by the state agency.

5-116

     (h) Work-sharing benefits. The work-sharing weekly benefit amount shall be the product

5-117

of the regular weekly benefit rate, including any dependents' allowances, multiplied by the

5-118

percentage reduction in the individual's usual weekly hours of work as specified in the approved

5-119

plan. If the work-sharing weekly benefit amount is not an exact multiple of one dollar ($1.00)

5-120

then the weekly benefit amount shall be rounded down to the next lower multiple of one dollar

5-121

($1.00).

5-122

     (2) An individual may be eligible for work-sharing benefits or regular unemployment

5-123

compensation, as appropriate, except that no individual shall be eligible for combined benefits in

5-124

any benefit year in an amount more than the maximum entitlement established for unemployment

5-125

compensation, nor shall an individual be paid work-sharing benefits for more than fifty-two (52)

5-126

weeks, whether or not consecutive, in any benefit year pursuant to an approved work-sharing

5-127

plan.  

5-128

     (3) The work-sharing benefits paid shall be deducted from the maximum entitlement

5-129

amount established for that individual's benefit year.

5-130

     (4) If an employer approves time off and the worker has performed some work during the

5-131

week, the individual is eligible for work-sharing benefits based on the combined work and paid

5-132

leave hours for that week. If the employer does not grant time off, the question of availability

5-133

must be investigated.

5-134

     (5) If an employee was sick and consequently did not work all the hours offered by the

5-135

work-sharing employer in a given week, the employee will be denied work-sharing benefits for

5-136

that week.

6-1

     (6) Claims for work-sharing benefits shall be filed in the same manner as claims for

6-2

unemployment compensation or as prescribed in regulations by the director.

6-3

     (7) Provisions applicable to unemployment compensation claimants shall apply to work-

6-4

sharing claimants to the extent that they are not inconsistent with the established work-sharing

6-5

provisions. An individual who files an initial claim for work-sharing benefits shall be provided, if

6-6

eligible for benefits, a monetary determination of entitlement to work-sharing benefits and shall

6-7

serve a waiting week.

6-8

     (8) If an individual works in the same week for an employer other than the work-sharing

6-9

employer, the individual's work-sharing benefits shall be computed in the same manner as if the

6-10

individual worked solely with the work-sharing employer. If the individual is not able to work or

6-11

is not available for the normal work week with the work-sharing employer, then no work-sharing

6-12

benefits shall be payable to that individual for that week.

6-13

     (9) An individual who performs no services during a week for the work-sharing employer

6-14

and is otherwise eligible shall be paid the full weekly unemployment compensation amount. That

6-15

week shall not be counted as a week with respect to which work-sharing benefits were received.

6-16

     (10) An individual who does not work for the work-sharing employer during a week but

6-17

works for another employer and is otherwise eligible shall be paid benefits for that week under

6-18

the partial unemployment compensation provisions of this chapter. That week shall not be

6-19

counted as a week with respect to which work-sharing benefits were received.

6-20

     (11) Nothing in the section shall preclude an otherwise eligible individual from receiving

6-21

total or partial unemployment benefits when the individual's work-sharing benefits have been

6-22

exhausted.

6-23

     (i) Benefit charges. Notwithstanding any provisions of this title to the contrary, work-

6-24

sharing Work-sharing benefits shall be charged to the account of the work-sharing employer.

6-25

Employers liable for payments in lieu of contributions shall be responsible for reimbursing the

6-26

employment security fund for the full amount of work-sharing benefits paid to their employees

6-27

under an approved work-sharing plan. Notwithstanding the above, any work-sharing benefits paid

6-28

on or after July 1, 2013 which are eligible for federal reimbursement shall not be chargeable to

6-29

employer accounts and employers liable for payments in lieu of contributions shall not be

6-30

responsible for reimbursing the employment security fund for any benefits paid to their

6-31

employees on or after July 1, 2013 that are reimbursed by the federal government.

6-32

     (j) Extended benefits. An individual who has received all of the unemployment

6-33

compensation or combined unemployment compensation and work-sharing benefits available in a

6-34

benefit year shall be considered an exhaustee for purposes of extended benefits, as provided

7-1

under the provisions of § 28-44-62, and, if otherwise eligible under those provisions, shall be

7-2

eligible to receive extended benefits.

7-3

SECTION 2. This act shall take effect upon passage.

=======

LC01446

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - EMPLOYMENT SECURITY -

BENEFITS

***

8-1

     This act would update the language in Rhode Island's work-sharing statute to comply

8-2

with the provisions of subtitle D of title II of the federal middle class tax relief and job creation

8-3

act of 2012 (public law 112-96).

8-4

     This act would take effect upon passage.

=======

LC01446

=======