SUBTITLE P. SHARED WORK COMPENSATION PROGRAM

(a) Section 2 (D.C. Official Code § 51-171) is amended as follows:

(1) Paragraph (4) is repealed.

(2) New paragraphs (4A) and (4B) are added to read as follows:

" (4A) "Health and retirement benefits" means employer-provided health benefits, and retirement benefits under a defined benefit plan, as defined in section 414(j) of the Internal Revenue Code of 1986, approved September 2, 1974 (88 Stat. 925; 26 U.S.C. § 414(j)), or contributions under a defined contribution plan, as defined in section 414(i) of the Internal Revenue Code of 1986, approved September 2, 1974 (88 Stat. 925; 26 U.S.C. § 414(i)), which are incidents of employment in addition to the cash remuneration earned.

" (4B) "Participating employee" means an employee who voluntarily agrees to participate in an employer's shared work plan.".

(3) Paragraph (5) is amended to read as follows:

" (5) "Usual weekly hours of work" means the usual hours of work per week for full-time 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.".

(4) Paragraph (7) is amended to read as follows:

" (7) "Shared work benefits" means the unemployment benefits payable to a participating employee in an affected unit under a shared work plan, as distinguished from the unemployment benefits otherwise payable under the employment security law.".

(5) Paragraph (8) is amended to read as follows:

" (8) "Shared work plan" means a written plan to participate in the shared work unemployment compensation program approved by the Director, under which the employer requests the payment of shared work benefits to participating employees in an affected unit of the employer to avert temporary or permanent layoffs, or both.".

(b) Section 4 (D.C. Official Code § 51-173) is amended to read as follows:

" Sec. 4. Employer participation in the shared work unemployment compensation program.

" (a) Employer participation in the shared work unemployment compensation program shall be voluntary.

" (b) An employer that wishes to participate in the shared work unemployment compensation program shall submit a signed application and proposed shared work plan to the Director for approval.

" (c) The Director shall develop an application form consistent with the requirements of this section. The application and shared work plan shall require the employer to:

" (1) Identify the affected unit (or units) to be covered by the shared work plan, including:

" (A) The number of full-time or part-time employees in such unit;

" (B) The percentage of employees in the affected unit covered by the plan;

" (C) Identification of each individual employee in the affected unit by name and social security number;

" (D) The employer's unemployment tax account number , and

" (E) Any other information required by the Director to identify participating employees;

" (2) Provide a description of how employees in the affected unit will be notified of the employer's participation in the shared work unemployment compensation program if such 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 will not provide advance notice of the shared work plan to employees in the affected unit, the employer shall explain in a statement in the application why it is not feasible to provide such notice;

" (3) Identify the usual weekly hours of work for employees in the affected unit and the specific percentage by which hours will be reduced during all weeks covered by the plan. A shared work plan may not reduce participating employees' usual weekly hours of work by less than 10% or more than 60%. 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) If the employer provides health and retirement benefits to any participating employee whose usual weekly hours of work are reduced under the plan, certify that such benefits will continue to be provided to participating employees under the same terms and conditions as though the usual weekly hours of work of such participating employee had not been reduced or to the same extent as employees not participating in the shared work plan. For defined benefit retirement plans, the hours that are reduced under the shared work plan shall be credited for purposes of participation, vesting, and accrual of benefits as though the participating employee's 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 reduced due to the reduction in the participating employee's compensation. A reduction in health and retirement benefits scheduled to occur during the duration of a shared work plan that is equally applicable to employees who are not participating in the plan and to participating employees does not violate a certification made pursuant to this paragraph;

" (5) Certify that the aggregate reduction in work hours under the shared work plan is in lieu of temporary or permanent layoffs, or both, and provide a good-faith estimate of the number of employees who would be laid off in the absence of the proposed shared work plan;

" (6) Agree to:

" (A) Furnish reports to the Director relating to the proper conduct of the shared work plan;

" (B) Allow the Director or the Director's authorized representatives access to all records necessary to approve or disapprove the application for a shared work plan;

" (C) Allow the Director to monitor and evaluate the shared work plan; and

" (D) Follow any other directives the Director considers necessary for the agency to implement the shared work plan consistent with the requirements for shared work plan applications;

" (7) Certify that participation in the shared work unemployment compensation program and implementation of the shared work plan will be consistent with the employer's obligations under applicable federal and District laws;

" (8) State the duration of the proposed shared work plan, which shall not exceed 365 days from the effective date established pursuant to section 6;

" (9) Provide any additional information or certifications that the Director determines to be appropriate for purposes of the shared work unemployment compensation program, consistent with requirements issued by the United States Secretary of Labor; and

" (10) Provide written approval of the proposed shared work plan by the collective bargaining representative for any employees covered by a collective bargaining agreement who will participate in the plan.".

(c) Section 5 (D.C. Official Code § 51-174) is amended to read as follows:

" Sec. 5. Approval and disapproval of a shared work plan.

" (a) (1) The Director shall approve or disapprove an application for a shared work plan in writing within 15 calendar days of its receipt and promptly issue a notice of approval or disapproval to the employer.

" (2) A decision disapproving the shared work plan shall clearly identify the reasons for the disapproval.

" (3) A decision to disapprove a shared work plan shall be final, but the employer may submit another application for a shared work plan not earlier than 10 calendar days from the date of the disapproval.

" (b) Except as provided in subsections (c) and (d) of this section, the Director shall approve a shared work plan if the employer:

" (1) Complies with the requirements of section 4 ; and

" (2) Has filed all reports required to be filed under the employment security law for all past and current periods, and:

" (A) Has paid all contributions and benefit cost payments; or

" (B) If the employer is a reimbursing employer, has made all payments in lieu of contributions due for all past and current periods.

" (c) Except as provided in subsection (d) of this section, the Director may not approve a shared work plan:

" (1) To provide payments to an employee if the employee is employed by the participating employer on a seasonal, temporary, or intermittent basis;

" (2) If the employer's unemployment insurance account has a negative unemployment experience rating;

" (3) If the employer's unemployment insurance account is taxed at the maximum tax rate in effect for the calendar year;

" (4) For employers who have not qualified to have a tax rate assigned based on actual experience; or

" (5) For employees who are receiving or who will receive supplemental unemployment benefits, as that term is defined in section 501(c)(17)(D) of the Internal Revenue Code of 1986, approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(17)(D)), during any period a shared work plan is in effect.

" (d) During the effective period of a shared work plan entered into during a public health emergency, subsection (c) of this section shall not apply. During a public health emergency, the Director may not approve a shared work plan:

" (1) To provide payments to an employee if the employee is employed by the participating employer on a seasonal, temporary, or intermittent basis;

" (2) For employees who are receiving or who will receive supplemental unemployment benefits, as that term is defined in section 501(c)(17)(D) of the Internal Revenue Code of 1986, approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(17)(D)), during any period a shared work plan is in effect; or

" (3) For employers that have reported quarterly earnings to the Director for fewer than 3 quarters at the time of the application for the shared work unemployment compensation program.

" (e) For the purposes of this section, the term "public health emergency" means the public health emergency declared in the Declaration of Public Health Emergency (Mayor's Order 2020-046), declared on March 11, 2020, and any extensions thereof.".

(d) Section 6 (D.C. Official Code § 51-175) is amended to read as follows:

" Sec. 6. Effective date and expiration, termination, or revocation of a shared work plan.

" (a) A shared work 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.

" (b) The duration of the plan shall be 365 days from the effective date, unless a shorter duration is requested by employer or the plan is terminated or revoked in accordance with this section.

" (c) An employer may terminate a shared work plan at any time upon written notice to the Director, participating employees, and a collective bargaining representative for the participating employees. After receipt of such notice from the employer, the Director shall issue to the employer, the appropriate collective bargaining representative, and participating employees an Acknowledgment of Voluntary Termination, which shall state the date the shared work plan terminated.

" (d) The Director may revoke a shared work plan at any time for good cause, including:

" (1) Failure to comply with the certifications and terms of the shared work plan;

" (2) Failure to comply with federal or District law;

" (3) Failure to report or request proposed modifications to the shared work plan in accordance with section 7 ;

" (4) Unreasonable revision of productivity standards for the affected unit;

" (5) Conduct or occurrences tending to defeat the purpose and effective operation of the shared work plan;

" (6) Change in conditions on which approval of the plan was based;

" (7) Violation of any criteria on which approval of the plan was based; or

" (8) Upon the request of an employee in the affected unit.

" (e) Upon a decision to revoke a shared work plan, the Director shall issue a written revocation order to the employer that specifies the reasons for the revocation and the date the revocation is effective. The Director shall provide a copy of the revocation order to all participating employees and their collective bargaining representative.

" (f) The Director may periodically review the operation of an employer's shared work plan to ensure compliance with its terms and applicable federal and District laws.

" (g) An employer may submit a new application for a shared work plan at any time after the expiration or termination of a shared work plan.".

(e) Section 7 (D.C. Official Code § 51-176) is amended to read as follows:

" Sec. 7. Modification of a shared work plan.

" (a) An employer may not implement a substantial modification to a shared work plan without first obtaining the written approval of the Director.

" (b) (1) An employer must report, in writing, every proposed modification of the shared work plan to the Director a least 5 calendar days before implementing the proposed modification. The Director shall review the proposed modification to determine whether the modification is substantial. If the Director determines that the proposed modification is substantial, the Director shall notify the employer of the need to request a substantial modification.

" (2) An employer may request a substantial modification to a shared work plan by filing a written request with the Director. The request shall identify the specific provisions of the shared work plan to be modified and provide an explanation of why the proposed modification is consistent with and supports the purposes of the shared work plan. A modification may not extend the expiration date of the shared work plan.

" (c) (1) At the Director's discretion, an employer's request for a substantial modification of a shared work plan may be approved if:

" (A) Conditions have changed since the plan was approved; and

" (B) The Director determines that the proposed modification is consistent with and supports the purposes of the approved plan.

" (2) The Director shall approve or disapprove a request for substantial modification, in writing, within 15 calendar days of receiving the request and promptly shall communicate the decision to the employer. If the request is approved, the notice of approval shall contain the effective date of the modification.".

(f) Section 8 (D.C. Official Code § 51-177) is amended to read as follows:

" Sec. 8. Employee eligibility for shared work benefits.

" (a) A participating employee is eligible to receive shared work benefits with respect to any week only if the individual is monetarily eligible for unemployment compensation, not otherwise disqualified from unemployment compensation, and:

" (1) With respect to the week for which shared work benefits are claimed, the participating employee was covered by a shared work plan that was approved prior to that week;

" (2) Notwithstanding any other provision of the employment security law relating to availability for work and actively seeking work, the participating employee was available for the individual's usual hours of work with the shared work employer, which may include availability to participate in training to enhance job skills approved by the Director, such as employer-sponsored training or training funded under the Workforce Innovation and Opportunity Act, approved July 22, 2014 (128 Stat. 1425; 29 U.S.C. § 3101 et seq. ); and

" (3) Notwithstanding any other provision of law, a participating employee is deemed unemployed for the purposes of determining eligibility to receive unemployment compensation benefits in any week during the duration of such plan if the individual's remuneration as an employee in an affected unit is reduced under the terms of the plan.

" (b) A participating employee may be eligible for shared work benefits or unemployment compensation, as appropriate, except that no participating employee may be eligible for combined benefits in any benefit year in an amount more than the maximum entitlement established for regular unemployment compensation; nor shall a participating employee be paid shared work benefits for more than 52 weeks under a shared work plan or in an amount more than the equivalent of the maximum of 26 weeks of regular unemployment compensation.

" (c) The shared work benefit paid to a participating employee shall be deducted from the maximum entitlement amount of regular unemployment compensation established for that individual's benefit year.

" (d) Provisions applicable to unemployment compensation claimants under the employment security law shall apply to participating employees to the extent that they are not inconsistent with this act . A participating employee who files an initial claim for shared work benefits shall receive a monetary determination of whether the individual is eligible to receive benefits.

" (e) A participating employee who has received all of the shared work benefits or combined unemployment compensation and shared work benefits available in a benefit year shall be considered an exhaustee, as defined in section 7(g)(1)(H) of the District of Columbia Unemployment Compensation Act, approved August 28, 1935 (49 Stat. 949; D.C. Official Code § 51-107(g)(1)(H)) ("Act") , for purposes of eligibility to receive extended benefits pursuant to section 7(g) of the Act (D.C. Official Code § 51-107(g)) , and, if otherwise eligible under that section, shall be eligible to receive extended benefits.

" (f) Shared work benefits shall be charged to employers' experience rating accounts in the same manner as unemployment compensation is charged under the employment security law, unless waived by federal or District law. Employers liable for payments in lieu of contributions shall have shared work benefits attributed to service in their employ in the same manner as unemployment compensation is attributed, unless waived by federal or District law.".

(g) Section 9 (D.C. Official Code § 51-178) is amended as follows:

(1) Subsection (a) is amended to read as follows:

" (a) (1) Except as provided in paragraph (2) of this subsection, the weekly benefit for a participating employee 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 participating employee's usual weekly hours of work.

" (2) The shared work benefit for a participating employee who performs work for another employer during weeks covered by a shared work plan shall be calculated as follows:

" (A) If the combined hours of work in a week for both employers results in a reduction of less than 10% of the usual weekly hours of work the participating employee works for the shared work employer, the participating employee is not eligible for shared work benefits;

" (B) If the combined hours of work for both employers results in a reduction equal to or greater than 10% of the usual weekly hours worked for the shared work employer, the shared work benefit payable to the participating employee 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. A week for which benefits are paid under this subparagraph shall be reported as a week of shared work benefits.

" (C) If an individual worked the reduced percentage of the usual weekly hours of work for the shared work employer and is available for all the participating employee's usual hours of work with the shared work employer, and the participating employee did not work any hours for the other employer, either because of the lack of work with that employer or because the participating employee is excused from work with the other employer, the participating employee shall be eligible for the full value of the shared work benefit for that week.".

(2) Subsection (b) is repealed

(3) New subsections (c) and (d) are added to read as follows:

" (c) A participating employee who is not provided any work during a week by the shared work 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.

" (d) A participating employee who is not provided any work by the shared work employer during a week, but who works for another employer and is otherwise eligible for unemployment compensation may be paid unemployment compensation for that week subject to the disqualifying income provision and other provisions applicable to claims for regular unemployment compensation.".