1279.5
. (a) As used in this section:
(1) "Affected unit" means a specified plant, department, shift, or
other definable unit that includes two or more workers and not less
than 10 percent of the employer's regular permanent work force
involved in the affected unit or units in each week, or in at least
one week of a two-consecutive-week period, to which an approved work
sharing plan applies.
(2) "Health and retirement benefits" means employer-provided
health benefits and retirement benefits under a defined benefit
pension plan, as defined in Section 414(j) of the Internal Revenue
Code, or contributions under a defined contribution plan, as defined
in Section 414(i) of the Internal Revenue Code, that are incidents of
employment in addition to the cash remuneration earned.
(3) "Work sharing compensation" means the unemployment
compensation benefits payable to employees in an affected unit under
an approved work sharing plan, as distinguished from the unemployment
compensation benefits otherwise payable under this part.
(4) "Work sharing plan" means a plan submitted by an employer, for
approval by the director, under which the employer requests the
payment of work sharing compensation to employees in an affected unit
of the employer in lieu of layoffs.
(5) "Work sharing program" means the program described by this
section.
(6) "Usual weekly hours of work" means the usual hours of work for
full- or part-time employees in the affected unit when that unit is
operating on its regular basis, not to exceed 40 hours and not
including hours of overtime work.
(7) "Unemployment compensation" means the unemployment
compensation benefits payable under this part other than work sharing
compensation and includes amounts payable pursuant to an agreement
under federal law providing for compensation, assistance, or
allowances with respect to unemployment.
(b) Notwithstanding Section 1252 or 1252.2 or any other provision
of this part, for the purposes of this section an employee is
"unemployed" in any week if the employee works less than his or her
usual weekly hours of work for the employee's regular employer, as
the result of the regular employer's participation in a work sharing
plan that meets the requirements of this section and has been
approved by the director, pursuant to which the employer, in lieu of
layoff, reduces employment and stabilizes the workforce.
(c) An employer wishing to participate in the work sharing
program, on and after July 1, 2014, shall submit a signed written
work sharing plan to the director for approval. The director shall
develop an application form to request approval of a work sharing
plan and an approval process that meets the requirements of this
section. The application shall include, but is not limited to, the
following:
(1) The affected unit covered by the plan, including the number of
full- or part-time employees in the unit, the percentage of
employees in the affected unit covered by the plan, identification of
each individual employee in the affected unit by name, social
security number, and the employer's unemployment tax account number
and any other information required by the director to identify plan
participants.
(2) A description of how employees in the affected unit will be
notified of the employer's participation in the work sharing plan if
the application is approved, including how the employer will notify
those employees in a collective bargaining unit as well as any
employees in the affected unit who are not in a collective bargaining
unit. If the employer does not intend to provide advance notice to
employees in the affected unit, the employer shall explain in a
statement in the application why it is not feasible to provide that
notice.
(3) A requirement that the employer identify, in the application,
the usual weekly hours of work for employees in the affected unit and
the specific percentage by which their hours will be reduced during
all weeks covered by the plan. The percentage of reduction of usual
weekly hours of work for which a work sharing plan may be approved
shall not be less than 10 percent or more than 60 percent. If the
plan includes any week for which the employer regularly does not
provide work, including, but not limited to, incidences due to a
holiday or plant closing, then that week shall be identified in the
application.
(4) (A) Except as provided in subparagraph (B), certification by
the employer, if the employer provides health and retirement benefits
to any employee whose usual weekly hours of work are to be reduced
under the plan, that the benefits will continue to be provided, to
the extent permitted by federal law, to employees participating in
the work sharing plan under the same terms and conditions as though
the usual weekly hours of work of these employees had not been
reduced or to the same extent as other employees not participating in
the work sharing plan. For defined benefit retirement plans, to the
extent permitted by federal law, the hours that are reduced under the
work sharing plan shall be credited for purposes of participation,
vesting, and accrual of benefits as though the usual weekly hours of
work had not been reduced. The dollar amount of employer
contributions to a defined contribution plan that are based on a
percentage of compensation may be less due to the reduction in the
employee's compensation.
(B) If a reduction in health and retirement benefits is scheduled
to occur during the duration of the plan and those reductions will be
applied equally to employees who are not participating in the work
sharing program, then the application shall so certify, and those
benefits may be reduced for those employees who are participating in
the work sharing plan.
(5) Certification by the employer that the aggregate reduction in
work hours is in lieu of temporary or permanent layoffs, or both. The
application shall include an estimate of the number of workers who
would have been laid off in the absence of the work sharing plan.
(6) Agreement by the employer to do all of the following:
(A) Furnish reports to the director relating to the proper conduct
of the plan.
(B) Allow the director or his or her authorized representatives
access to all records necessary to approve or disapprove the plan
application.
(C) After approval of a plan, monitor and evaluate the plan.
(D) Follow any other directives the director deems necessary for
the department to implement the plan and that are consistent with the
requirements for plan applications.
(7) Certification by the employer that participation in the work
sharing plan and its implementation is consistent with the employer's
obligations under applicable federal and state laws.
(8) The effective date and duration of the plan, which shall not
be later than the end of the 12th full calendar month after the
effective date.
(9) Any other provision added to the application by the director
that the United States Secretary of Labor determines to be
appropriate for purposes of a work sharing plan.
(d) The director shall approve or disapprove a work sharing plan
in writing by the close of business no later than 10 working days
from the date the completed plan is received and communicate the
decision to the employer. A decision disapproving the plan shall
clearly identify the reasons for the disapproval. Within 20 days, the
employer may submit a request for review of the disapproved work
sharing plan to the director's work sharing administrator, whom the
director shall designate for this purpose. After review, the work
sharing administrator's decision of approval or disapproval shall be
final. If disapproved, the employer may submit a different work
sharing plan for approval.
(e) The director shall work with the employer to determine the
effective date of a work sharing plan, which shall be specified in
the notice of approval to the employer. The plan shall expire on the
date specified in the notice of approval, which shall be either the
date at the end of the 12th full calendar month after its effective
date or an earlier date mutually agreed upon by the employer and the
director. However, if a work sharing plan is revoked by the director
under subdivision (f) of this section, the plan shall terminate on
the date specified in the director's written order of revocation. An
employer may terminate a work sharing plan at any time upon written
notice to the director. An employer may submit an application to
renew the work sharing plan not more than 10 days after a previously
approved work sharing plan expires.
(f) The director may revoke approval of a work sharing plan for
good cause at any time. The revocation order shall be in writing and
shall specify the reasons for the revocation and the date the
revocation is effective. The director may periodically review the
operation of an employer's work sharing plan to ensure that good
cause does not exist for revocation of the approval of the plan. For
purposes of these provisions, good cause includes, but is not limited
to, failure to comply with the assurances given in the plan,
unreasonable revision of productivity standards for the affected
unit, conduct or occurrences tending to defeat the intent and
effective operation of the work sharing plan, and violation of any
criteria on which approval of the plan was based.
(g) An employer may request a modification of an approved plan by
filing a written request to the director. The request shall identify
the specific provisions proposed to be modified and provide an
explanation of why the proposed modification is appropriate for the
work sharing plan. The director shall approve or disapprove the
proposed modification in writing by the close of business no later
than 10 working days from the date the proposed modification is
received and communicate the decision to the employer. The director,
in his or her discretion, may approve a request for modification of
the plan based on conditions that have changed since the plan was
approved, provided that the modification is consistent with and
supports the purposes for which the plan was initially approved. A
modification does not extend the expiration date of the original
plan, and the director shall promptly notify the employer whether the
plan modification has been approved and, if approved, the effective
date of the modification, which shall not be earlier than the
effective date of the original work sharing plan. An employer is not
required to request approval of a plan modification from the director
if the change is not substantial, but the employer shall promptly
report, in writing, every change to the plan to the director. The
director may terminate an employer's plan if the employer fails to
meet this reporting requirement. If the director determines that the
reported change is substantial, the director shall require the
employer to request a modification to the plan.
(h) (1) An employee is eligible to receive work sharing
compensation with respect to any week only if the employee is
monetarily eligible for unemployment compensation, not otherwise
disqualified for unemployment compensation, and both of the following
are true:
(A) During the week, the employee is employed as a member of an
affected unit under an approved work sharing plan, which was approved
prior to that week, and the plan is in effect with respect to the
week for which work sharing compensation is claimed.
(B) Notwithstanding any other provisions relating to availability
for work and actively seeking work, the employee is available for the
employee's usual hours of work with the work sharing employer, which
may include, for purposes of this section, participating in training
to enhance job skills that is approved by the director, such as
employer-sponsored training or training funded under the federal
Workforce Investment Act of 1998 (29 U.S.C. Sec. 2801 et seq.).
(2) Notwithstanding any other provision of law, an employee
covered by a work sharing plan is deemed unemployed in any week
during the duration of that plan if the employee's remuneration as an
employee in an affected unit is reduced based on a reduction of the
employee's usual weekly hours of work under an approved work sharing
plan.
(i) For the purposes of this section, an employee shall not be
disqualified under subdivision (c) of Section 1253 for any week if
both of the following conditions exist:
(1) The employee has not been absent from work without the
approval of the regular employer.
(2) The employee accepted all work the regular employer made
available to the individual during hours scheduled off due to the
work sharing plan.
(j) The work sharing weekly compensation amount shall be the
product of the regular weekly unemployment compensation amount for a
week of total unemployment multiplied by the percentage of reduction
in the individual's usual weekly hours of work.
(k) (1) Provisions applicable to unemployment compensation shall
apply to employees in a work sharing plan to the extent that they are
not inconsistent with work sharing program provisions. An employee
who files an initial claim for work sharing compensation shall
receive a monetary determination. An employee may be eligible for
work sharing compensation or unemployment compensation, as
appropriate, except that an employee shall not be eligible for
combined benefits in any benefit year in an amount more than the
maximum entitlement established for regular unemployment
compensation, nor shall an employee be paid work sharing benefits for
more than 52 weeks under a work sharing plan.
(2) An employee who is not provided any work during a week by the
work sharing employer, or any other employer, and who is otherwise
eligible for unemployment compensation, shall be eligible for the
amount of regular unemployment compensation to which he or she would
otherwise be eligible.
(3) An employee who is not provided any work by the work sharing
employer during a week, but who works for another employer and is
otherwise eligible, may be paid unemployment compensation for that
week subject to the disqualifying income and other provisions
applicable to claims for regular unemployment compensation.
(4) The work sharing compensation paid to an employee shall be
deducted from the maximum entitlement amount of regular unemployment
compensation established for that employee's benefit year.
(5) An employee who has received all of the work sharing
compensation or combined unemployment compensation and work sharing
compensation available in a benefit year shall be considered an
exhaustee for purposes of extended benefits and, if otherwise
eligible under those provisions, shall be eligible to receive
extended benefits.
(6) No employee who receives any benefits under this section
during any benefit year shall receive any benefits pursuant to
Section 1252 or 1252.2 as a partially unemployed individual with
respect to any week during a benefit year while in employment status
with the regular employer who initiated the work sharing plan under
this section.
(7) Sections 1253.5 and 1279 shall not apply to any individual
eligible for any payment under this section.
(l) Any amount payable under this section shall be reduced by the
amount of any and all compensation payable for personal services,
whether performed as an employee or an independent contractor or as a
juror or as a witness, except compensation payable by the regular
employer under a work sharing plan. For the purposes of this
subdivision, "regular employer" may include, pursuant to an approved
plan, a labor organization that periodically employs individuals in
accordance with a collective bargaining agreement.
(m) Work sharing compensation shall be charged to employers'
experience rating accounts in the same manner as unemployment
compensation is charged under this part. Employers liable for
payments in lieu of contributions shall have work sharing
compensation attributed to service in their employ in the same manner
as unemployment compensation is attributed.
(n) The benefit payment under this section, if not a multiple of
one dollar ($1), shall be increased to the next higher multiple of
one dollar ($1).
(o) Except as otherwise provided by or inconsistent with this
section, all provisions of this division and authorized regulations
apply to benefits under this section. Authorized regulations may, to
the extent permitted by federal law, make those distinctions and
requirements as may be necessary in the procedures and provisions
applicable to unemployed individuals to carry out the purposes of
this section, including, but not limited to, regulations defining
normal hours, days, workweeks, and wages.
(p) Employees shall not be eligible to receive any benefits under
this section unless their employer agrees, in writing, and their
bargaining agent pursuant to any applicable collective bargaining
agreement agrees, in writing, to voluntarily participate in the work
sharing program created by this section.
(q) Notwithstanding Section 1327, the department shall not be
required to notify an employer of additional claims that result from
an approved plan submitted by the employer under which benefits are
not paid in each week.
(r) This section shall become operative on July 1, 2014. This
section shall apply to work sharing plans that become effective on or
after July 1, 2014.