Summaries of consent agreements resulting from lawsuits against Employment Security
Duncan vs. Turner
In 1987, the legislature passed a law giving claimants the option of filing for an alternate base year. Before this law was passed, if a claimant didn't have 680 hours worked in their base period (first four of the last five completed quarters), they had to wait a quarter until the base period changed and a subsequent quarter became part of their base period. The new law allowed claimants to be paid benefits as soon as their employer's wage details were keyed. The law didn't require the department to make any efforts to speed keying of wage details to validate claims. Claimants had to wait until the wages were processed normally.
Mr. Duncan was a roofer who worked in Vancouver. He filed a claim for benefits and was first denied as his employer considered him an exempt corporate officer and didn't report any wages or hours for him. The Unemployment Law Project represented Mr. Duncan in an appeal regarding the denial of wage credits. After winning his appeal on the issue of wage credits, Mr. Duncan received enough wage credits to establish a valid claim using the "regular" base year. The Unemployment Law Project and Evergreen Legal Services then looked for another affected claimant to serve as their test claimant.
In the meantime, the department conducted a pilot project to determine the costs and benefits of tracking wage details and keying wages for claimants with alternate base year claims. The Priority Processing Project showed that the processes used to key tax reports and wage details were not conducive to setting up alternate base year claims. The methods in use were manual, processing wages of specific claimants was not cost effective, and had minimal impact on the timely processing of these claims.
Following depositions with Evergreen Legal Services, and unable to find another claimant who was harmed, the Unemployment Law Project and Evergreen Legal Services dropped their lawsuit.
In March of 1993, Evergreen Legal Services filed a class action lawsuit against the Employment Security Department and the Office of Administrative Hearings. The class was defined as "all limited English speaking individuals, presently or in the future, who apply for or receive unemployment compensation benefits, who file an appeal concerning their benefits and who receive notices concerning administrative hearings and appeals therefrom that are not in their primary language nor accompanied by a notice in their primary language that adequately describes the significance of the notice and how the recipient may receive assistance in understanding the notice."
A limited English proficient individual is defined as: "Any person whose primary language is not English and who cannot readily speak, read and understand the English language." The primary language is the language other than English which a limited English proficient individual is able to readily speak and understand.
The lawsuit was filed on behalf of claimant Manuela Nava and all limited English proficient claimants who may have had their benefits denied because notices concerning their appeal hearings were not provided to them in their native languages. A final settlement was reached in August of 1994.
In that settlement, the plaintiff agreed to dismiss her action if the department would agree to provide certain specific services to limited English proficient individuals. The department agreed to provide the services based on the dismissal of the lawsuit.
In October of 1993, the department began tracking the language preference in which limited English proficient claimants would like to receive written communications. The Office if Administrative Hearings began collecting similar data from hearings where interpreters were requested. Based on the data, languages were grouped into Tiers I, II, and III. The most common language, which was Spanish, was placed in Tier I. The next most common languages were placed in Tier II, while all other languages were placed in Tier III. This type of survey was to take place once each year, which it has.
The primary focus of the settlement was to provide Unemployment Insurance Division, Office of Administrative Hearings, and Commissioner's Review forms and notices relating to a claimant's appeal right (including petitions for review) in Tier I and II languages. Tier III claimants receive notices of the availability of translation services.
In November of 1994, an amendment to WAC 192-04-090 was approved. It allowed the Office of Administrative Hearings and Commissioner's Review Office to consider limited English proficiency as a good cause factor for the late filing of an appeal or petition for review.
For a period of one year, our department was required to notify all Tier I and II claimants about the expanded services available to them under the settlement agreement. The settlement agreement also required our department to mail the Spanish advisory notice to all claimants who had filed new claims since January 1, 1994, indicating Spanish as their language preference.
Since the settlement was agreed to, the Unemployment Insurance Division has taken the responsibility of expanding the distribution of forms and notices in Spanish as well as other languages, not only with respect to appeals, but also with the filing and claiming of unemployment benefits.
O'Brien, et al, vs. ESD
Prior to 1984, when a claimant submitted a claim form that did not clearly establish eligibility for benefits, payment was "pended" (or suspended) until the claimant established eligibility.
Claimant O'Brien submitted a claim form for the weeks ending May 7 and 14, 1983. Based on the information on the claim form alone, she was denied benefits for failing to conduct a "systematic and sustained effort to obtain work." Claimant was given no opportunity to provide information prior to the denial of benefits.
A class action suit was filed in Thurston County Superior Court by Evergreen Legal Services on behalf of O'Brien and others.
The court found that "continued claim recipients" (those who have been determined monetarily and nonmonetarily eligible and who have received waiting period credit or payment for at least one week) have a property interest in UI benefits and cannot be deprived of those benefits without adequate notice and the opportunity to be heard on the eligibility issue. The court also found that 80 percent of claimants who had their payments pended were later found eligible and that pending payments caused delays of seven to ten days in receiving payment, thus depriving claimants of needed income.
In May of 1984, Superior Court Judge Gerry Alexander issued an order that the department be "restrained and enjoined from":
- Pending benefit payments of "continued claim recipients."
- Failing to provide "adequate notice and opportunity to be heard" to continued claim recipients when the department questions their eligibility for benefits.
As a result of the court order, the department adopted emergency regulations (made permanent in 1987) that:
- Defined adequate notice and opportunity to be heard.
- Defined a continued claim recipient.
- Provided for the "conditional payment" of continued claims recipients.
- Provided that claimants who were paid conditionally and then subsequently denied were at fault and liable for repayment of benefits.
Conditional payment means that when a potential eligibility issue is detected, continued claim recipients receive payment "conditioned" on the eligibility issue being resolved in their favor. Claimants are notified of the issue and are given the opportunity to be heard (reasonable mailing time plus five days).
Claimants failing to respond to the notice timely are presumed to be ineligible and are issued "presumptive" denials. Those denials can be redetermined if the claimant later establishes eligibility.
Othello Community Hospital
Employment Security is now required to review all base year and last employer separations rather than only the last separation to determine eligibility for unemployment benefits.
Leona Lawrence was discharged from Othello Community Hospital in July of 1983 for alleged theft of hospital property. She did not file a claim for benefits after this discharge. She began working for Willapa Harbor Hospital in September of 1983 and quit to follow her spouse in May of 1984. She filed for unemployment and was appropriately denied on the grounds that she left work for domestic responsibilities.
She returned to work and was discharged after three months. She reopened her claim, allowed benefits for a non-disqualifying reason, and had sufficient earnings to purge her denial from Willapa Harbor Hospital.
When she began receiving benefits, Othello Community Hospital, as a reimbursable base year employer, was notified of a charge to their account. They filed an appeal requesting a ruling on separation from their employment. On March 10, 1985, they were denied based on the "last employer rule." The separation from Othello Community Hospital could not be considered in determining her benefit eligibility because the Hospital was not the last employer at the time she initially applied for benefits. On March 13, 1985, the claimant pled guilty and was convicted of third-degree theft (13 months after her separation). The case was taken to the Court of Appeals and in October of 1988 they invalidated the department's "last employer rule." The department's motion for reconsideration was denied.
As a result, claimant eligibility is determined by adjudicating all potentially disqualifying separations from base year employers and the last employer unless the separation is purged. Claimants are required to provide accurate addresses for base and lag period employers. Notification that a claim has been filed is sent to all base year employers who report wages to the department.
Claimants Terri Gachen and Debbie Booser were ticket agents for Alaska Airlines and worked with cathode ray tube computers (CRTs). The union/management collective bargaining agreement stated that CRTs posed a risk to unborn children and allowed for a voluntary leave of absence to pregnant workers. Both claimants exercised their rights under this agreement and requested leaves of absence. They applied for unemployment benefits, but were ultimately denied on the grounds that they had not taken all reasonable steps to preserve their employment by asking their employer for alternative work. Subsequently, the Unemployment Law Project filed a class action suit alleging the department unlawfully discriminated against pregnant workers who file unemployment claims.
The Pierce County Superior Court judge awarded benefits to both claimants, ruling that the evidence was clear that the job of the claimants involved working with CRTs, which posed a danger to pregnant workers. The court also noted that the reasons for leaving were known to the employer, and that the employer is in the unique position of knowing what other positions would be available for the employee to perform. The court then concluded that the burden of offering alternative work is on the employer and not on the claimant in cases where claimants have a disability. The Unemployment Law Project and department signed a settlement agreement, approved by the court, in which the department agreed it would, in good faith, propose the following rules:
- Claimants who leave work due to pregnancy will be given a directive outlining the work search and availability requirements they must meet;
- Pregnancy-related disabilities will be treated the same as other medical disabilities;
- A claimant will not be found unavailable for work for failing to request alternative work with the employer if he or she told the employer of the disabling condition and the employer did not offer alternative work prior to the leave of absence; and
- A claimant on leave of absence due to a pregnancy-related disability will not be found unavailable solely because the leave of absence is voluntary.
Under current practice, claimants are required to take reasonable steps to preserve their employment, including requesting alternative work from the employer, unless those efforts would be futile. Claimants on a voluntary leave of absence are considered to be unavailable for work and ineligible for benefits. In normal circumstances, directives are only issued when the department determines a claimant needs to increase his or her job search activities, or those activities need clarification. While pregnancy-related disabilities should be treated the same as other medical disabilities, existing policy does not directly address this.
The department adopted the following rules to resolve the settlement:
Leaving work because of illness or disability - WAC 192-150-055
Leaving work because of disability - WAC 192-150-060
Suitable work factors - WAC 192-170-050
Requirements of individuals who leave work due to illness or disability - WAC 192-180-012