2013 -- S 0571 SUBSTITUTE A

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LC01446/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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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

(Labor & Training)

It is enacted by the General Assembly as follows:

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

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

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

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context clearly requires otherwise:

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

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

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

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

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

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to his or her account and benefits have been chargeable to this account, or who has elected to

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reimburse the fund in lieu of paying contributions, and who is not delinquent in the payment of

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

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

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

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employment.

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

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

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

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

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

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

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director.

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

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

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

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

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a gap in an employer’s workforce.

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

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

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(40) hours and not including overtime.

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

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under an approved work-sharing plan.

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

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in effect.

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

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

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temporary layoffs of some of the employees.

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

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

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

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met:

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

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plan;

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

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

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information that the director shall require;

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

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

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

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reduction in work hours;

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

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

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

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

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

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

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

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

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

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

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

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sharing program;

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

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

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

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

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available to each employee in the affected unit;

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

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nor as a subsidy for temporary or intermittent employment; and

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

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

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

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application of the plan.

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

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

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

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

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as the secretary of labor determines is appropriate;

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

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

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laws.

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

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

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

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

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

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the new data submitted by the interested employer.

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

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

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

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

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

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

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

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

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

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

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

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

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criteria on which approval of the plan was based.

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

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

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

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

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requirements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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work-sharing employer.

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

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

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

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approved work-sharing plan in effect for the week.

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

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

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

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work-sharing employer.

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

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

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training funded under the Workforce Investment Act of 1998) to enhance job skills if such

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program has been approved by the state agency.

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

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

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

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

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

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($1.00).

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

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

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

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

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

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plan.  

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

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amount established for that individual's benefit year.

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

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

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

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must be investigated.

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

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

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that week.

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

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unemployment compensation or as prescribed in regulations by the director.

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

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

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

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

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serve a waiting week.

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

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

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

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

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benefits shall be payable to that individual for that week.

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

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

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

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

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

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

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

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

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

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exhausted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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eligible to receive extended benefits.

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     (k) Severability. If any provision of this section, or its application to any person or

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circumstance, is held invalid under federal law, the remainder of the section and the application

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of that provision to other persons or circumstances shall not be affected by that invalidity.

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SECTION 2. This act shall take effect upon passage.

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LC01446/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - EMPLOYMENT SECURITY -

BENEFITS

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

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with the provisions of subtitle D of title II of the Federal Middle Class Tax Relief and Job

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Creation Act of 2012 (public law 112-96).

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     This act would take effect upon passage.

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LC01446/SUB A

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