WSR 05-04-091

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed February 2, 2005, 8:10 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: WAC 357-58-405 In addition to the requirements of chapter 357-37 WAC, what must the performance management process focus on for WMS employees?, 357-58-410 When and how often must performance feedback be provided to a WMS employee through the formal evaluation process?, 357-58-415 What is the role of the director of the department of personnel in the performance evaluation system?, 357-58-420 May employers supplement the standardized performance evaluation procedures and forms?, 357-58-425 Can an employer factor performance into compensation and layoff decisions for WMS employees?, 357-58-430 How does an employer receive performance management confirmation which enables them to factor performance into compensation and layoff decisions for WMS employees?, 357-58-435 What elements will the director of the department of personnel evaluate to determine if an employer should be granted performance management confirmation?, 357-58-440 How may an employer layoff WMS employees and what notice is required?, 357-58-445 What are the reasons for layoff?, 357-58-450 How are employees returned from exempt positions to WMS positions?, 357-58-455 How does an employer implement a layoff action?, 357-58-460 What must be included in the employer's layoff procedure?, 357-58-465 What option does a permanent WMS employee have to take a position when the employee is scheduled for layoff?, 357-58-470 How does an employer determine an employee's employment retention rating?, 357-58-475 Does a veteran receive any preference in layoff?, 357-58-480 What provisions governs separation due to disability for WMS employees?, 357-58-485 What provisions governs nondisciplinary separation for WMS employees?, 357-58-490 What provisions governs separation for unauthorized absence for WMS employees?, and 357-58-495 What process is used by employees who wish to resign?

Hearing Location(s): Department of Personnel, 600 South Franklin, Olympia, WA, on March 10, 2005, at 10:00 a.m.

Date of Intended Adoption: March 10, 2005.

Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, fax (360) 586-4694, by March 4, 2005. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

Assistance for Persons with Disabilities: Contact Department of Personnel by March 4, 2005, TTY (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules address the performance management process for Washington Management Service (WMS) employees, layoff for WMS employees, and separation of WMS employees.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Statute Being Implemented: RCW 41.06.150.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Due to the passage of SHB 1268 the director of the Department of Personnel has rule-making authority regarding the Washington Management Service. The proposed rules implement this provision of the Personnel System Reform Act.

Name of Proponent: Department of Personnel, governmental.

Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.

A cost-benefit analysis is not required under RCW 34.05.328.

February 1, 2005

E. C. Matt

Director


NEW SECTION
WAC 357-58-405   In addition to the requirements of chapter 357-37 WAC, what must the performance management process focus on for WMS employees?   For WMS employees, the performance management process must satisfy the requirements of chapter 357-37 WAC and focus on:

(1) Fostering employee competence, leadership and productivity,

(2) Supporting achievement of organizational goals and objectives, and

(3) Holding managers accountable for achieving programmatic results and helping to build a performance based culture that will enable workforce success.

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NEW SECTION
WAC 357-58-410   When and how often must performance feedback be provided to a WMS employee through the formal evaluation process?   Employers must provide feedback and formally evaluate the performance of WMS employees during the review period and annually thereafter.

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NEW SECTION
WAC 357-58-415   What is the role of the director of the department of personnel in the performance evaluation system?   The director of the department of personnel will provide a standardized performance evaluation system which will be used by each state agency for evaluation of its managers.

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NEW SECTION
WAC 357-58-420   May employers supplement the standardized performance evaluation procedures and forms?   Agencies may tailor or supplement the managerial evaluation system to fulfill agency-unique needs, provided the emphasis is placed on:

(1) Assessment of those leadership competencies that are critical to an effective managerial performance-based environment;

(2) Planning for development and training in leadership competencies;

(3) Collaboration and communication between the supervisor and managerial employee during the performance planning and evaluation process;

(4) Planning for and assessment of results; and

(5) Preparation of a performance management and development plan.

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NEW SECTION
WAC 357-58-425   Can an employer factor performance into compensation and layoff decisions for WMS employees?   A general government employer may factor an employee's performance into compensation and layoff decisions if the employer has received performance management confirmation.

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NEW SECTION
WAC 357-58-430   How does an employer receive performance management confirmation which enables them to factor performance into compensation and layoff decisions for WMS employees?   Employers may request performance management confirmation from the director of the department of personnel for WMS employees. The director of the department of personnel will use the elements listed in WAC 357-58-435 to assess and evaluate an employer's readiness to fairly and objectively factor performance into compensation, recognition leave and layoff decisions. If the director of the department of personnel determines that the employer has developed a performance management program that encompasses the necessary elements, the employer will be granted performance management confirmation.

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NEW SECTION
WAC 357-58-435   What elements will the director of the department of personnel evaluate to determine if an employer should be granted performance management confirmation?   The director of the department of personnel will evaluate the following elements to determine if an employer should receive performance management confirmation:

(1) Executive commitment to a performance-based culture;

(2) Present status of performance management in the organization;

(3) Defined roles and responsibilities for implementing and sustaining a performance management system;

(4) Policy and process for holding managers accountable for properly carrying out their roles and responsibilities in performance management;

(5) Internal policies and procedures for a performance management system;

(6) Strategy for communicating to employees regarding policies, procedures, and timelines for performance management;

(7) Performance management orientation and training for managers and supervisors;

(8) Internal mechanisms for managing funding for performance-based compensation;

(9) Implementation of a performance and development plan for all employees subject to performance factor decisions; and

(10) Process for monitoring and measuring success.

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NEW SECTION
WAC 357-58-440   How may an employer layoff WMS employees and what notice is required?   WMS employees may be separated without prejudice due to layoff in accordance with the statutes and the agency's layoff procedure.

Permanent WMS employees must receive at least fifteen (15) calendar days' written notice of layoff, except when the employer and employee agree to waive the fifteen-day notice. Notice of layoff must include the reason or basis for layoff and the employee's right to appeal the layoff.

WMS employees without permanent status must receive with at least one (1) calendar day's written notice of layoff.

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NEW SECTION
WAC 357-58-445   What are the reasons for layoff?   Employees may be laid off without prejudice according to layoff procedures that are consistent with these rules.

(1) The reasons for layoff include, but are not limited to, the following:

(a) Lack of funds

(b) Lack of work; or

(c) Organizational change.

(2) Examples of layoff actions due to lack of work may include, but are not limited to:

(a) Termination of a project or special employment;

(b) Availability of fewer positions than there are employees entitled to such positions;

(c) Elimination of a position when the work of the position has been competitively contracted; or

(d) Employee's ineligibility to continue in a position which has been reallocated to the Washington general service.

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NEW SECTION
WAC 357-58-450   How are employees returned from exempt positions to WMS positions?   When exempt employees have statutory rights to return to the Washington management service, such employees first must be returned to the classified service in accordance WAC 357-04-030. If such return causes the total number of employees to exceed the total number of positions to be filled, the agency may implement a layoff in accordance with the layoff provisions of this chapter.

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NEW SECTION
WAC 357-58-455   How does an employer implement a layoff action?   The employer is required to have a layoff procedure. When an employer determines a layoff is necessary, the layoff procedure must be followed. The layoff procedure must be available either electronically or in writing to employees subject to layoff.

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NEW SECTION
WAC 357-58-460   What must be included in the employer's layoff procedure?   The employer's layoff procedure must:

(1) Identify clearly defined layoff unit(s) that minimize disruption of the employer's total operation and provide options to employees scheduled for layoff;

Employers may establish separate and exclusive layoff units for project employment or special employment programs.
(2) Provide opportunities to avoid or minimize layoff, such as transfers, voluntary demotion, voluntary reduced work schedule, or voluntary leave without pay;

(3) Require the appointing authority to provide written notice of layoff to employees in accordance with WAC 357-58-440.

(4) Provide layoff options for permanent employees being laid off in accordance with WAC 357-58-465. Only employers who have performance confirmation can consider performance in determining layoff options;

(5) Address the timeframe in which employees must select a layoff option;

(6) Define what the employer considers when determining the comparability of a position;

(7) Identify the employer's legitimate business requirements if the employer is going to consider those requirements in determining layoff options under WAC 357-58-465;

Legitimate business requirements may include requirements such as circumstances or characteristics that render a position uniquely sensitive to disruption in continuity such as meeting critical deadlines, continuity in patient care, or research progress.
(8) Describe how employment retention ratings will be calculated, including options for factoring performance into ratings; and

(9) Specify how the employer will break ties when more than one employee has the same employment retention rating.

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NEW SECTION
WAC 357-58-465   What option does a permanent WMS employee have to take a position when the employee is scheduled for layoff?   (1) Within the layoff unit, a permanent WMS employee scheduled for layoff must be offered the option to take a position, if available, that meets the following criteria:

(a) The employee has the required competencies for the position.

(b) The WMS position is at the same salary standard and/or evaluation points. If no option to a position with the same salary standard and/or evaluation points is available, the employer must consider other WMS positions with a lower salary standard and/or evaluation points, or general service positions in classes in which the employee has held permanent status, in descending salary order. At the agency's discretion, the employee may be offered a vacant position at higher evaluation points.

(c) The position is funded and vacant, or if no vacant position is available, the position is occupied by the employee with the lowest retention rating.

(2) What if the employee has no option under subsection (1) of this section?

(a) If a permanent employee has no option available under subsection (1) of this section, the employer must determine if there is an acting position in the layoff unit for which the employee is qualified.

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NEW SECTION
WAC 357-58-470   How does an employer determine an employee's employment retention rating?   The employer determines an employee's employment retention rating using seniority as calculated in WAC 357-46-055. Employers with performance management confirmation may consider properly documented performance in addition to seniority. If performance is not considered, an employee's employment retention rating is equal to the employee's seniority.

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NEW SECTION
WAC 357-58-475   Does a veteran receive any preference in layoff?   (1) An eligible veteran receives a preference by having his/her seniority increased. This is done by adding the eligible veteran's total active military service, not to exceed five (5) years, to his/her unbroken service date.

(2) An eligible veteran is defined as any permanent employee who:

(a) Has one or more years in active military service in any branch of the armed forces of the United States or who has less than one year's service and is discharged with a disability incurred in the line of duty or is discharged at the convenience of the government; and

(b) Has received, upon termination of such service:

(i) An honorable discharge;

(ii) A discharge for physical reasons with an honorable record; or

(iii) A release from active military service with evidence of service other than that for which an undesirable, bad conduct, or dishonorable discharge is given.

(3) "An eligible veteran" does not include any person who as a veteran voluntarily retired with twenty (20) or more years' active military service and has military retirement pay in excess of five hundred dollars per month.

(4) The unmarried widow/widower of an eligible veteran is entitled to veteran's seniority preference for up to five (5) years as outlined in subsection (1) and (2) of this section regardless of whether the veteran had at least one (1) year of active military service.

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NEW SECTION
WAC 357-58-480   What provisions governs separation due to disability for WMS employees?   WMS employees may be separated due to disability in accordance with WAC 357-46-160, 357-46-165, 357-46-170, and 357-46-175.

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NEW SECTION
WAC 357-58-485   What provisions governs nondisciplinary separation for WMS employees?   Employers may separate WMS employees for nondisciplinary reasons in accordance with WAC 357-46-195, 357-46-200, and 357-46-205.

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NEW SECTION
WAC 357-58-490   What provisions governs separation for unauthorized absence for WMS employees?   Employers may separate WMS employees for unauthorized absence in accordance with WAC 357-46-210, 357-46-215, 357-46-220 and 357-46-225.

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NEW SECTION
WAC 357-58-495   What process is used by employees who wish to resign?   An employee who intends to resign from state service should provide his/her resignation to the appointing authority or employing official at least fifteen (15) calendar days before the effective date of the resignation.

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Washington State Code Reviser's Office