Amendment #450 to H4000

Workshare Program Amendment

Representatives Keefe of Worcester and McMurtry of Dedham move to amend the bill by adding the following section:

Section XX

Chapter 151A is hereby further amended by striking out section 29D, as so appearing, and inserting in place thereof the following section:-

Section 29D. (a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Affected unit”, a specified plant, department, shift or other definable unit that includes 2 or more workers to which an approved worksharing plan applies.

“Director”, the director of the department or the director's authorized representative.

“Health and retirement benefits”, health benefits, and retirement benefits provided by an employer under a defined benefit pension plan as defined in section 414(j) of the Internal Revenue Code, or contributions under a defined contribution plan defined in section 414(i) of said Code, which are incidents of employment in addition to the cash remuneration earned.

“Worksharing benefits”, the unemployment benefits payable to employees in an affected unit under an approved worksharing plan, as distinguished from the unemployment benefits otherwise payable under the unemployment compensation provisions of this chapter.

“Worksharing plan”, a plan submitted by an employer, for approval by the director, under which the employer requests the payment of worksharing benefits to workers in an affected unit of the employer to avert layoffs.

“Usual weekly hours of work”, the usual hours of work for full-time or regular 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.

“Unemployment compensation”, the unemployment benefits payable under this chapter other than worksharing benefits, including any amounts payable pursuant to an agreement under any Federal law providing for compensation, assistance or allowances with respect to unemployment.

(b) An employer wishing to participate in a worksharing program shall submit a signed written worksharing plan and application form to the director for approval. The director shall develop an application form to request approval of a worksharing plan and an approval process. Any application, whether for initial approval, approval following one or more disapprovals, for modification, or for participation in another worksharing plan after the expiration or termination of an approved plan, shall include: (1) The affected unit or units covered by the plan, including the number of full-time or part-time workers in such unit, the percentage of workers 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 workers in the affected unit will be notified of the employer’s participation in the worksharing program if such application is approved, including how the employer will notify those workers in a collective bargaining unit, as well as any workers in the affected unit who are not in a collective bargaining unit. If the employer will not provide advance notice to workers in the affected unit, the employer shall explain in a statement in the application why it is not feasible to provide such notice.

(3) A requirement that the employer identify 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. An application shall specify the percentage of reduction for which a worksharing application may be approved which shall be not less than 10 percent and not more than 60 percent. If the plan includes any week for which the employer regularly provides no work due to a holiday or other plant closing, then such week shall be identified in the application.

(4) Certification by the employer that, if the employer provides health and retirement benefits to any employee whose usual weekly hours of work are reduced under the program, such benefits will continue to be provided to employees participating in the worksharing program under the same terms and conditions as though the usual weekly hours of work of such employee had not been reduced or to the same extent as other employees not participating in the worksharing program.

For defined benefit retirement plans, the hours that are reduced under the worksharing 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.

Notwithstanding the above, an application may contain the required certification when a reduction in health and retirement benefits scheduled to occur during the duration of the plan will be applicable equally to employees who are not participating in the worksharing program and to those employees who are participating.

(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 worksharing plan. The plan shall not serve as a subsidy of seasonal employment during the off season, nor as a subsidy of temporary part-time or intermittent employment.

(6) Agreement by the employer to: furnish reports to the director relating to the proper conduct of the plan; allow the director or the director’s authorized representatives access to all records necessary to approve or disapprove the plan application, and after approval of a plan, to monitor and evaluate the plan; and follow any other directives the director deems necessary for the agency to implement the plan and that are consistent with the requirements for plan applications.

(7) Certification by the employer that participation in the worksharing plan and its implementation are consistent with the employer’s obligations under applicable federal and state laws.

(8) The effective date and duration of the plan that shall expire not later than the end of the twelfth full calendar month after the effective date.

(9) The written approval by the collective bargaining agent for each collective bargaining agreement for each affected unit is included in the plan.

(10) 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 worksharing program.

(c) The director shall approve or disapprove a worksharing plan in writing within 15 days of its receipt and promptly communicate the decision to the employer. The disapproval shall be final, but the employer shall be allowed to submit another worksharing plan for approval not earlier than 7 days from the date of the disapproval.

(d) A worksharing plan shall be effective on the date that is mutually agreed upon by the employer and the director, 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 twelfth full calendar month after its effective date or an earlier date mutually agreed upon by the employer and the director; provided, however, that if a worksharing plan is revoked by the director pursuant to subsection (e), the plan shall terminate on the date specified in the director's written order of revocation. An employer may terminate a worksharing plan at any time upon written notice to the director. Upon receipt of such notice from the employer, the director shall promptly notify each employee of the affected unit of the termination date. An employer may submit a new application to participate in another worksharing plan at any time after the expiration or termination date.

(e) The director may revoke approval of a worksharing plan for good cause at any time, including upon the request of any of the affected unit's employees. 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 each employer’s worksharing plan to assure that no good cause exists for revocation of the approval of the plan. Good cause shall include, but not be 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 worksharing plan and violation of any criteria on which approval of the plan was based.

(f) An employer may request a modification of an approved plan by filing a written request with 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 worksharing plan. The director shall approve or disapprove the proposed modification in writing within 15 days of receipt and promptly communicate the decision to the employer.

The director 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.

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 report every change to the plan to the director promptly and in writing. 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.

(g) An individual is eligible to receive worksharing benefits with respect to any week only if the individual is monetarily eligible for unemployment compensation, not otherwise disqualified for unemployment compensation and:

(1) During the week, the individual is employed as a member of an affected unit under an approved worksharing plan, which was approved prior to that week, and the plan is in effect with respect to the week for which worksharing benefits are claimed.

(2) Notwithstanding any other provisions of this chapter relating to availability for work and actively seeking work, the individual is available for the individual's usual hours of work with the worksharing 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 Workforce Investment Act of 1998.

(3) Notwithstanding any other provision of law, an individual covered by a worksharing plan is deemed unemployed in any week during the duration of such plan if the individual’s remuneration as an employee in an affected unit is reduced based on a reduction of the individual's usual weekly hours of work under an approved worksharing plan.

(h)(1)The worksharing weekly benefit 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.

(2) An individual may be eligible for worksharing benefits or unemployment compensation, as appropriate, except that no individual shall 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 individual be paid worksharing benefits for more than 52 weeks under a worksharing plan.

(3) The worksharing benefits paid to an individual shall be deducted from the maximum entitlement amount of regular unemployment compensation established for that individual’s benefit year.

(4) Provisions applicable to unemployment compensation claimants shall apply to worksharing claimants to the extent that they are not inconsistent with worksharing provisions. An individual who files an initial claim for worksharing benefits shall receive a monetary determination.

(5) The following provisions apply to individuals who work for both a worksharing employer and another employer during weeks covered by the approved worksharing plan:

(i) If combined hours of work in a week for both employers does not result in a reduction of at least 10 per cent or, if higher, the minimum percentage of reduction required to be eligible for a worksharing benefit as provided in this section, of the usual weekly hours of work with the worksharing employer, the individual shall not be entitled to benefits under these worksharing provisions.

(ii) If the combined hours of work for both employers results in a reduction equal to or greater than 10 per cent; or, if higher, the minimum percentage reduction required to be eligible for a worksharing benefit as provided in state law, of the usual weekly hours of work for the worksharing employer, the worksharing benefit amount payable to the individual is reduced for that week and is determined by multiplying the weekly unemployment benefit amount for a week of total unemployment by the percentage by which the combined hours of work have been reduced by 10 per cent or, if higher, the minimum percentage reduction required to be eligible for a worksharing benefit as provided in this section, or more of the individual's usual weekly hours of work. A week for which benefits are paid under this provision shall be reported as a week of worksharing.

(iii) If an individual worked the reduced percentage of the usual weekly hours of work for the worksharing employer and is available for all of the individual’s usual hours of work with the worksharing employer, and the individual did not work any hours for the other employer, either because of the lack of work with that employer or because the individual is excused from work with the other employer, the individual shall be eligible for worksharing benefits for that week. The benefit amount for such week shall be calculated as provided in subsection (i).

(6) An individual who is not provided any work during a week by the worksharing 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 the individual would otherwise be eligible.

(7) An individual who is not provided any work by the worksharing 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 compensation.

(i) Worksharing benefits shall be charged to employers’ experience rating accounts in the same manner as unemployment compensation is charged under this chapter. Employers liable for payments in lieu of contributions shall have worksharing benefits attributed to service in their employ in the same manner as unemployment compensation is attributed.

(j) An individual who has received all of the worksharing benefits or combined unemployment compensation and worksharing benefits available in a benefit year shall be considered an exhaustee for purposes of extended benefits, as provided under the provisions of section 30A, and if otherwise eligible under those provisions, shall be eligible to receive extended benefits.

(k) Notwithstanding any other provision of this chapter relating to charges, all worksharing benefits shall be charged to the account of the worksharing employer. Benefits paid under this section shall be charged to the employer’s account in the same manner as regular benefits are charged, except that, if the employer’s account reserve percentage is negative as of the most recent computation date, the employer shall be charged and billed in accordance with the provisions of section 14A as if the employer had elected to make payments in lieu of contributions. Benefits paid under this section to employees of employers who have elected to make payments in lieu of contributions shall be charged in accordance with said section 14A.

(l) The director may utilize any remedies provided by this chapter to recover worksharing benefits that were improperly paid as a result of information that was substantially misleading or that contained a material misrepresentation of fact and was submitted to the director in connection with the approval, modification or implementation of a worksharing plan.