WSR 02-12-051

EMERGENCY RULES

PERSONNEL RESOURCES BOARD


[ Filed May 29, 2002, 3:42 p.m. , effective July 11, 2002 ]

Date of Adoption: May 29, 2002.

Purpose: The intent of the proposed modifications is to make it easier to understand the administration of overtime and call-back penalty pay when Department of Natural Resources' employees are performing emergency duty under an incident command system for long hours and, in some cases, days or weeks at a time. This proposal would allow miscellaneous leave to be approved in consideration of employees' need to recuperate after extended periods of emergency work under an incident command system. The modification to WAC 356-15-090(6) is housekeeping in nature.

Citation of Existing Rules Affected by this Order: Amending WAC 356-15-090 and 356-15-100.

Statutory Authority for Adoption: RCW 41.06.150.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: These proposed rule amendments would relieve and otherwise avoid employee frustrations and disputes over pay issues thereby significantly contributing to their morale and safety, making adoption of proposed rule amendments in time for the 2002 fire season important to the public health, safety and general welfare. These amendments were previously adopted in an emergency basis effective March 14, 2002.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 4, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 4, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 4, Repealed 0.
Effective Date of Rule: July 11, 2002.

May 29, 2002

E. C. Matt

Secretary


AMENDATORY SECTION(Amending WSR 97-24-038, filed 11/26/97, effective 1/1/98)

WAC 356-15-090   Schedule change and compensation.   (1) The agency shall schedule the working days and hours of scheduled work period employees. This schedule shall remain in effect for at least seven calendar days, and may be changed only with seven or more calendar days notice. If seven calendar days notice is not given, a new schedule does not exist until the notice period expires. Agencies may notify employees of more than one future schedule change in a single notice.

The seven calendar days notice of changes in working days and/or hours must be given to the affected employees during their scheduled working hours. The day that notification is given shall constitute a day of notice.

(2) If the agency changes the assigned hours or days of scheduled work period employees without giving them at least seven days notice of the change, employees will be paid for all time worked outside the scheduled hours or days at the overtime rate for the duration of the notice period.

(a) When changes in employees' assigned hours or days are made without proper notice, employees may work their scheduled hours or days unless the agency deems that:

(i) The employees are unable to perform satisfactorily as the result of excessive overtime hours; or

(ii) The work which normally would have been performed within the scheduled hours or days cannot be performed.

(b) The state is not obligated to pay for those scheduled hours or days not worked, unless the employee is on an authorized leave of absence with pay.

(c) Overtime pay and shift or schedule change pay shall not be paid for the same incident.

(3) Regardless of whether advance notice is given, an agency is not obligated to pay overtime due to a change in work schedule, when such a change is in response to a request from an employee, provided the employee works no more than forty hours in a workweek.

When the majority of employees in a work unit ask, in writing, for such a change, and the work unit can function properly only if all employees in the unit work the proposed schedule or scheduling plan, the agency is authorized to approve the change for the entire unit as an employee-initiated change. A written request for a schedule change from the exclusive representative shall constitute a request of employees within a certified bargaining unit.

(4) When an agency initiates a scheduled change from one scheduled standard work schedule to another scheduled standard work schedule, there is created a seven-day transition period.

(a) The transition period starts at the beginning of the shift of the previous schedule which would have begun a new five-consecutive-day work cycle.

(Example: An eight-to-five Tuesday through Saturday employee changes to a Sunday-Thursday schedule beginning on Sunday. The transition period starts at eight a.m. on the last Tuesday of the old schedule, and runs until eight a.m. on the first Tuesday under the new schedule.)

(b) If, during the transition period, the employee must work more than five of the seven workdays, then the work in excess of forty non-overtime hours will be paid at overtime rates.

(c) If, during the transition period, the schedule change causes an employee to begin work on an earlier day of the workweek or at an earlier hour of the workday than was required under the old schedule, the employee will be paid at the overtime rate for the first hours worked in the new schedule which precede the next hours which the employee would have worked under the old schedule.

(5) Contingency scheduling is allowed for employees having the following responsibilities: Highway snow, ice, and avalanche control, grain inspection, horticulture inspection; and in the departments of natural resources or corrections, performing emergency response duty under an Incident Command System, defined in RCW 38.52.010, including controlling forest fires, or performing work in a fire camp in support of fire crews, "hoot owl," forest fuels management and aerial applications.

(a) Therefore: For ((non-forest-fire)) personnel in scheduled work period positions whose work is not performed under an Incident Command System, the agency shall not be bound by the above scheduled shift change notice requirement if the agency notifies affected employees of the contingency schedule in writing when they enter the position or not less than 30 days prior to implementation.

When conditions mandate the activating of the contingency schedule, the agency shall pay affected employees the overtime rate for all hours worked outside the original schedule at least for the employee's first shift of the contingency schedule and for other overtime hours covered by subsection (7) of this section.

(b) For ((forest-fire control and fire-camp support)) personnel in scheduled work period positions whose work is performed under an Incident Command System, the above schedule change notice requirement shall not apply if the agency notifies affected employees in writing that they are subject to contingency scheduling when they enter the position or not less than 30 days prior to implementation.

((When an employee's forest fire contingency schedule requires him or her to change working hours from the previous schedule, the agency shall pay the affected employee the overtime rate for all hours worked outside the previous schedule for the employee's first shift of the new contingency schedule.

When such employees have completed the first eight hours of their assigned contingency shift (10 hours in the case of 10-40 work schedule employees), they shall receive overtime rates for all subsequent work performed until released from duty for a period of five consecutive hours.))

Such employees, in the department of natural resources, performing emergency work who are receiving overtime compensation for work which meets subsection (1)(a) through (d) of WAC 356-15-030 and who continue working at the end of one workday into the next workday shall continue to receive overtime compensation thereafter until relieved from duty for a period of at least five consecutive hours or until released from further emergency work, whichever occurs first.

(6) In the department of corrections, ((division of prisons)) office of correctional operations, the agency and the employees may agree that employees sent to forest fire camps in charge of inmate fire fighters for a period of twenty four hours or more will be on "extended duty assignment." Employees on extended duty assignment will be considered to be on continuous duty from the time they commence such duty including travel time to the fire, until they are released from duty including travel time for return to their nonfire duty station.

(a) During the extended duty assignment, all time will be paid as work time, except that the employer may deduct up to eight hours of nonwork time each day for sleep, plus up to three hours for meals, provided that:

(i) The employee has no responsibility during time deducted for meal periods.

(ii) The time deducted for sleep includes a period of five continuous hours which are not interrupted by a call to work.

(iii) No sleep time shall be deducted if the employer does not furnish adequate sleeping facilities. Adequate sleeping facilities are those which are usual and customary for forest fire camps.

(b) Scheduled work period employees shall be entitled to call back pay to the extent described in WAC 356-15-100 and 356-15-110 for a maximum of one payment, equal to three straight-time hours, at the commencement of an extended duty assignment. No call-back payment shall be made for any work during the hours of an extended duty assignment, or the transition back to the regular work schedule.

(c) The beginning of each work week on extended duty assignment shall be unchanged from the last previous work week on the employee's regular work schedule. All compensable hours of work on extended duty assignment shall be at overtime rates except eight in any work day. All compensable hours on a holiday shall be at overtime rates.

(d) There are no scheduled days off during an extended duty assignment. However, compensable hours on a holiday, and all compensable hours in excess of forty straight time hours in any workweek (including hours worked within the same workweek either before or after the extended duty assignment), shall be paid at overtime rates.

(e) During an extended duty assignment, all hours are duty hours; there is no eligibility for standby pay.

(f) Employees whose regular scheduled work shift entitles them to shift premium for their full shift, or a portion thereof, shall be paid shift premium as follows:

(i) Employees whose regular schedules are all night shifts will continue to receive night shift premium for all paid hours of the extended duty assignment.

(ii) Employees whose regular schedules call for some, but less than four hours of, night shift work each day will continue to receive the same number of hours at shift premium during each workday of the extended duty assignment.

(iii) Employees whose regular schedules call for some, but not all, full night shifts each week will receive shift premium for all paid hours on those same days during the extended duty assignment.

(7) When a scheduled or nonscheduled work period employee experiences a schedule change (within or between agencies) which causes an overlap in workweeks and requires work in excess of forty hours in either the old or the new workweek, the employee must receive overtime compensation at least equal to the amount resulting from the following calculations:

(a)(i) Starting at the beginning of the "old" workweek, count all hours actually worked before the end of that workweek, and calculate the straight-time pay and the overtime pay (based on "regular rate" as defined in WAC 356-05-353).

(ii) Starting at the conclusion of the "new" workweek, count back to include all hours actually worked since the beginning of that workweek, and calculate the straight-time and overtime (based on "regular rate" as defined in WAC 356-05-353).

(iii) Pay the larger amount calculated under (a)(i) and (ii) of this subsection.

(b) If any other combination of straight-time and time-and-one-half-rate pay required by these rules results in an amount of pay, for either workweek, which is greater than the amount calculated in (a)(iii) of this subsection, then only the larger amount should be paid.

(8) If overtime is incurred as a result of employee movement between state agencies, the overtime will be borne by the receiving agency.

[Statutory Authority: RCW 41.06.150. 97-24-038, 356-15-090, filed 11/26/97, effective 1/1/98; 96-02-073, 356-15-090, filed 1/3/96, effective 2/3/96; 89-16-031 (Order 328), 356-15-090, filed 7/25/89, effective 8/25/89; 89-10-040 (Order 317), 356-15-090, filed 4/28/89, effective 6/1/89; 87-24-026 (Order 285), 356-15-090, filed 11/24/87, effective 1/1/88; 87-10-037 (Order 274), 356-15-090, filed 5/1/87, effective 6/1/87; 86-12-025 (Order 248), 356-15-090, filed 5/28/86, effective 7/1/86; 83-18-031 (Order 191), 356-15-090, filed 8/31/83; Order 114, 356-15-090, filed 12/21/77; Order 98, 356-15-090, filed 1/13/77, effective 2/13/77; Order 86, 356-15-090, filed 5/4/76, effective 10/1/76.*]


AMENDATORY SECTION(Amending WSR 99-19-113, filed 9/21/99, effective 11/1/99)

WAC 356-15-100   Call-back for work preceding or following a scheduled workshift.   (1) Scheduled work period employees shall be notified prior to their scheduled quitting time either to return to work after departing the worksite or to change the starting time of their next scheduled workshift.

(a) Lack of such notice for such work shall be considered call-back and shall result in a penalty of three hours of pay at the basic salary in addition to all other compensation due. This penalty shall apply to each call.

(b) The appointing authority may cancel a call-back notification to work extra hours at any time but cancellation shall not waive the penalty cited in this subsection.

(c) These provisions shall not apply to the mid-shift interval in a split shift and an employee called back while in standby status.

(2) Nonscheduled, exceptions, and law enforcement work period employees are not normally paid for call-back. However, if the appointing authority deems it appropriate, those employees may receive compensation, not to exceed the penalty cited above, for call-back.

(3) In the department of corrections institutions bargaining unit, lack of such notice as provided in subsection (1) of this section shall not result in penalty of three hours of pay at the basic salary when such change in an employee's start time of their next scheduled workshift is a result of the employee signing up on a volunteer overtime sheet.

(4) In the Department of Natural Resources and in lieu of (1) above, employees dispatched to emergency response duty under an Incident Command System, defined in RCW 38.52.010, will be paid a single callback penalty payment equivalent to three (3) hours of straight time pay if they begin to perform emergency work after their scheduled quitting time on a scheduled work day. This provision applies separately to each emergency incident unless responding to more than one emergency incident from the same camp.

[Statutory Authority: RCW 41.06.150. 99-19-113, 356-15-100, filed 9/21/99, effective 11/1/99. Statutory Authority: RCW 41.06.040 and 41.06.150. 90-15-037 (Order 359), 356-15-100, filed 7/13/90, effective 8/13/90. Statutory Authority: RCW 41.06.150. 86-12-025 (Order 248), 356-15-100, filed 5/28/86, effective 7/1/86; 86-06-017 (Order 242), 356-15-100, filed 2/24/86; 84-12-079 (Order 206), 356-15-100, filed 6/6/84; Order 98, 356-15-100, filed 1/13/77, effective 2/13/77; Order 86, 356-15-100, filed 5/4/76, effective 10/1/76.*]

Washington State Code Reviser's Office