WSR 04-11-046

PERMANENT RULES

PERSONNEL RESOURCES BOARD


[ Filed May 13, 2004, 3:18 p.m. , effective July 1, 2004 ]

Date of Adoption: May 13, 2004.

Purpose: These rules pertain to register designation, background check requirements and reduction in force for general government state employees. SB 5705 enables the department of services for the blind to conduct background checks on current employees in covered positions, applicants for covered positions, and for student interns and volunteers.

Citation of Existing Rules Affected by this Order: Amending WAC 356-26-030, 356-26-140, and 356-30-330.

Statutory Authority for Adoption: RCW 41.06.150.

Adopted under notice filed as WSR 04-08-119 on April 7, 2004.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 3, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 0.
Effective Date of Rule: July 1, 2004.

May 13, 2004

E.C. Matt

Secretary


AMENDATORY SECTION(Amending WSR 01-19-032, filed 9/13/01, effective 10/14/01)

WAC 356-26-030   Register designation.   (1) Agency reduction in force.

(a) Composition.

(i) The agency reduction in force register will consist of classes and the names of all employees who hold or have held permanent status in those classes and: (A) Have been notified they are scheduled for reduction in force; or (B) held permanent status prior to separation due to a reduction in force; or (C) who have accepted a voluntary demotion in a class in lieu of a reduction in force; or (D) were in a trial service period with another department and separated due to reduction in force; or (E) employees requesting to be placed on this register for classes held immediately prior to the position being reallocated downward; or (F) who were separated due to disability within the last year as provided in WAC 356-35-010 and who have submitted to the director of personnel a current statement from a physician or licensed mental health professional that they are physically and/or mentally able to perform the duties of the class for which the register is established.

(ii) The employee's name shall appear for all classifications for which he/she is not disabled in which he/she held permanent status since the employee's last separation other than a reduction in force, or in which he/she served more than six months on a position which would have meant permanent status had it been under the jurisdiction of the board at the time.

(b) Method of ranking.

(i) This register will be ranked according to seniority.

(c) Life of register.

(i) An eligible's name will normally remain on this register for three years.

(d) Special provisions.

(i) Employees appointed from this register will assume the same status they held prior to the reduction in force. Persons on this register will indicate the geographic areas in which they are available. Appointment of persons from this register to seasonal positions will be as provided in WAC 356-30-130.

(ii) An employee's name shall not appear for classes at or below the range level of a class in which the employee is serving on a permanent full-time basis, except:

(A) When the employee has accepted an option beyond a reasonable commuting distance in lieu of separation due to reduction in force. The employee's name may appear for classes at the same or lower range levels when the availability would return the employee back to his/her previous work location.

(B) When the employee has accepted a position in lieu of separation due to a reduction in force, in a different class series.

(C) Any other exceptions shall be approved by the director or designee.

(2) Service-wide reduction in force.

(a) Composition.

(i) This register will consist of the same names as the agency reduction in force register, except for those requesting to be on the agency reduction in force register following a reallocation downward.

(b) Method of ranking.

(i) This register will be ranked according to seniority.

(c) Life of register.

(i) An eligible's name will normally remain on this register for two years.

(d) Special provisions.

(i) Employees appointed from this register will assume the same status they held prior to the reduction in force. Persons on this register will indicate the geographic areas and departments for which they are available. Appointment of persons from this register to seasonal positions will be as provided in WAC 356-30-130.

(3) Dual-agency reversion.

(a) Composition.

(i) This register will contain the names of employees who while serving a trial service period in another agency or a higher education institution were either voluntarily or involuntarily reverted to their former class and status.

(b) Method of ranking.

(i) This register will be ranked according to total unbroken classified service.

(c) Life of register.

(i) An eligible's name will normally remain on this register for two years.

(d) Special provisions.

(i) This register refers to the agency from which promoted and the agency from which reverted. Employees appointed from this register will assume the status they held prior to promotion. Persons on this register will indicate the geographic area in which they are available.

(4) Agency promotional.

(a) Composition.

(i) This register will be established by appropriate classes for each agency and shall include the names of those current permanent employees of each agency who have served six months of a probationary period, or past permanent employees who have been separated due to reduction in force within the last year and who have received a passing final grade in the total promotional examination and are eligible to be certified. The names of past permanent employees who were separated due to disability within the last year as provided in WAC 356-35-010 shall also be included on this register provided that they submit to the director of personnel a statement from a physician or licensed mental health professional that they are physically and/or mentally able to perform the duties of the class for which the register is established and they have received a passing final grade as required for other promotional applicants. The names of employees in the department of social and health services or department of services for the blind who have been separated from their position, voluntarily or involuntarily due to a background check disqualification, except through disciplinary action, shall also be included on this register in accordance with subsection (4)(d)(ii) of this section.

(b) Method of ranking.

(i) This register shall be ranked according to final score from the highest to the lowest.

(c) Life of register.

(i) An eligible's name will normally remain on this register for an indefinite period unless replaced by a register established by the use of a substantially new examination.

(d) Special provisions.

(i) An employee may convert any current open competitive rating to this register after six months.

(ii) An employee in the department of social and health services or department of services for the blind who has been separated from their position, voluntarily or involuntarily due to a background check disqualification, except through disciplinary action, may request placement on this register. The employee must meet the desirable qualifications and pass a qualifying exam for classes that are at the same salary level or lower than the position from which he/she was separated. Employees appointed from this register shall be required to serve a trial service period for classes in which they have not held permanent status. For three years from the date of separation from the position requiring the background check, an employee:

(A) May apply and have his/her name remain on this register for the appropriate classes.

(B) Shall continue to accrue seniority.

(C) Will maintain promotional rights from the position requiring the background check.

Upon appointment from this register the employee's name shall be removed from registers authorized by this subsection.

(5) Higher education reduction in force.

(a) Composition.

(i) This register shall contain the names of permanent employees ranked in order of seniority from higher education institutions or related boards laid off or scheduled for layoff and who have requested placement on this register. The employee's name shall appear for all classifications or equivalent classifications for which the employee held permanent status.

(b) Method of ranking.

(i) This register will be ranked according to seniority.

(c) Life of the register.

(i) An eligible's name will normally remain on this register for two years from the date of placement on the register.

(d) Special provisions.

(i) The employee must request placement on this register within thirty calendar days of the effective date of layoff or previously have requested placement on the inter-system employment register due to layoff. The employee may request placement on lower classes in the same class series or equivalent classes and must demonstrate the ability to meet the minimum qualifications and pass the qualifying examination for classes in which the employee has held permanent status, or lower classes in the same class series, or equivalent classes. Employees appointed from this register shall be required to complete a trial service period of six months.

(6) Service-wide reversion.

(a) Composition.

(i) This register will contain the names of employees who while serving a trial service period in another agency or higher education institution were either voluntarily or involuntarily reverted to their former class and status.

(b) Method of ranking.

(i) This register will be ranked according to total unbroken classified service.

(c) Life of register.

(i) An eligible's name will normally remain on this register for two years.

(d) Special provisions.

(i) This register refers to all agencies, except the two which are involved with the dual-agency transaction. Persons on this register will indicate the geographic areas and agencies for which they are available.

(7) Transfer.

(a) Composition.

(i) This register shall contain the names of all permanent employees who have submitted a request to be considered for transfer.

(b) Method of ranking.

(i) This register will be unranked.

(c) Life of register.

(i) An eligible's name shall normally remain on this register for one year.

(d) Special provisions.

(i) To use this register, the employee must transfer either within the same class or the same pay range having the same salary range number.

(8) Voluntary demotion.

(a) Composition.

(i) This register shall contain the names of all permanent employees who have submitted a request for and are eligible under the rules to be considered for a voluntary demotion.

(b) Method of ranking.

(i) This register shall be unranked. However, employees subject to reduction in force shall have priority.

(c) Life of register.

(i) An eligible's name shall normally remain on this register for one year.

(d) Special provisions.

(i) Employees appointed from this register to a class not previously held will serve a trial service period. All examination ratings for the class from which demoted shall be nullified; however, the employee may be elevated to the class from which demoted with permanent status without benefit of certification provided permanent status was achieved at the higher level.

(9) Service-wide promotional.

(a) Composition.

(i) This register shall contain the names of those permanent employees who have served six months of a probationary period or past permanent employees who have been separated due to reduction in force within the last year who have obtained a passing final grade in the total promotional examination. The names of past permanent employees who were separated due to disability within the last year as provided in WAC 356-35-010 shall also be included on this register provided that they submit to the director of personnel a statement from a physician or licensed mental health professional that they are physically and/or mentally able to perform the duties of the class for which the register is established and they have received a passing final score as required for other promotional applicants.

(b) Method of ranking.

(i) This register shall be ranked according to final score, from the highest to the lowest.

(c) Life of register.

(i) An eligible's name will normally remain on this register for an indefinite period unless replaced by a register established by the use of a substantially new examination.

(d) Special provisions.

(i) An employee may convert any current open competitive rating to this register after six months. Persons on this register will indicate the geographic areas and agencies for which they are available.

(10) Reemployment.

(a) Composition.

(i) This register shall contain the names of all past permanent employees who have submitted a request and an application for reemployment within five years from the date of separation, provided that the names of employees separated for cause while performing similar duties shall not be placed on this register except with the approval of the agency from which they were separated for cause. This register shall also contain the names of those employees who have been in reversion or reduction in force status and have been offered and declined employment. The director of personnel may extend the time during which an employee may apply for reemployment if the director of personnel has determined that a need for eligibles exists in a certain class and/or geographical area.

(b) Method of ranking.

(i) This register shall be unranked.

(c) Life of register.

(i) An eligible's name will normally remain on this register for two years.

(d) Special provisions.

(i) Persons reemployed from this register will serve a probationary period. The former employee may limit or enlarge upon his/her area of availability either by department or geographic area.

(11) Inter-system employment.

(a) Composition. This register shall contain the names of permanent classified employees at higher education institutions who have submitted an application and who have passed the required examination.

(b) Method of ranking. This register shall be ranked according to final passing score from the highest to the lowest.

(c) Life of register. An eligible's name will normally remain on this register for one year.

(d) Special provisions. Employees appointed from this register will serve a six month trial service period.

(12) Open competitive.

(a) Composition.

(i) This register will contain the names of all persons who have passed the entrance examination.

(b) Method of ranking.

(i) This register shall be ranked by the final score.

(c) Life of register.

(i) An eligible's name will normally remain on this register for one year unless changed by the director of personnel.

(d) Special provisions.

(i) Persons on this register will indicate the geographic areas for which they are available.

[Statutory Authority: RCW 41.06.150. 01-19-032, 356-26-030, filed 9/13/01, effective 10/14/01; 98-19-034, 356-26-030, filed 9/10/98, effective 10/12/98. Statutory Authority: Chapter 41.06 RCW and RCW 41.06.150. 94-10-008, 356-26-030, filed 4/21/94, effective 5/31/94. Statutory Authority: RCW 41.06.040 and 41.06.150. 93-12-088 (Order 421), 356-26-030, filed 5/28/93, effective 7/1/93. Statutory Authority: RCW 41.06.150. 85-14-008 (Order 224), 356-26-030, filed 6/24/85; 85-05-030 (Order 217), 356-26-030, filed 2/15/85; 84-14-006 (Order 207), 356-26-030, filed 6/22/84; 84-11-091 (Order 204), 356-26-030, filed 5/23/84, effective 9/1/84; 83-01-115 (Order 179), 356-26-030, filed 12/22/82. Statutory Authority: RCW 41.06.150(17). 82-19-092 (Order 175), 356-26-030, filed 9/22/82; 81-20-060 (Order 161), 356-26-030, filed 10/5/81; 80-13-047 (Order 147), 356-26-030, filed 9/16/80; Order 58, 356-26-030, filed 9/10/73; Permanent and Emergency Order 50, 356-26-030, filed 10/19/72; Order 40, 356-26-030, filed 12/10/71; Order 36, 356-26-030, filed 7/1/71, effective 8/1/71. Formerly WAC 356-16-330, 356-16-340, 356-16-350, 356-16-360, 356-16-370, 356-16-380, 356-16-390, 356-16-400.]


AMENDATORY SECTION(Amending WSR 02-07-050, filed 3/14/02, effective 5/1/02)

WAC 356-26-140   Background check requirements -- Department of social and health services and department of services for the blind.   (1) The department of social and health services and department of services for the blind shall conduct background checks on employees in covered positions and persons under final consideration for a covered position in accordance with WAC 356-30-012 or WAC 67-16-040.

[Statutory Authority: RCW 41.06.150. 02-07-050, 356-26-140, filed 3/14/02, effective 5/1/02; 01-19-032, 356-26-140, filed 9/13/01, effective 10/14/01. Statutory Authority: RCW 41.06.150 and chapters 43.43 and 72.23 RCW. 89-19-062 (Order 329), 356-26-140, filed 9/20/89, effective 10/21/89. Statutory Authority: RCW 41.06.150. 87-06-024 (Order 271), 356-26-140, filed 2/24/87.]


AMENDATORY SECTION(Amending WSR 01-19-032, filed 9/13/01, effective 10/14/01)

WAC 356-30-330   Reduction in force -- Reasons, regulations -- Procedure.   (1) Employees may be separated in accordance with the statutes and the agencies' approved reduction in force procedures after at least fifteen calendar days' notice in writing, without prejudice, because of lack of funds or curtailment of work, or good faith reorganization for efficiency purposes, ineligibility to continue in a position which has been reallocated, or when there are fewer positions than there are employees entitled to such positions either by statute or within other provisions of merit system rules.

(2) When employees have statutory and merit system rule rights to return to the classified service, such employees first shall be returned to the classification selected. If such return causes the total number of employees to exceed the number of positions to be filled in the classification, the least senior person in the position shall have the reduction in force rights prescribed in this section.

(3) The agencies shall develop a reduction in force procedure that is consistent with the following:

(a) For purposes of reduction in force (WAC 356-30-330), seniority shall be determined by the definition in WAC 356-05-390. Ties in seniority will be broken by first measuring the employees' last continuous time within their current classification; if the tie still exists, by measuring the employees' last continuous time in their current agency; and if the tie still exists, by lot.

(b) Clearly defined layoff units, either geographically or by administrative units or both, so as to limit the disruption of an agency's total operation; but not to unduly restrict the options available to employees with greater seniority. The definition of layoff units may be a series of progressively larger units within an agency when a valid option in lieu of separation cannot be offered to respective employees within a lesser-sized unit. Employment projects, established under the provisions of WAC 356-30-145, Project employment, are distinct layoff units, separate and exclusive of any other defined layoff unit or employment project. Seasonal career layoff units, established under the provisions of WAC 356-30-130, Seasonal career employment, are distinct layoff units, separate and exclusive of any other defined layoff unit.

(c) Options in lieu of separation by reduction in force shall be offered by an agency only when such options are in accordance with the agency's reduction in force procedure which has been approved by the director of personnel.

(d) Agency reduction in force procedures shall specify the rights and obligations for employees to accept or reject options offered in lieu of separation due to reduction in force.

(e) "Bumping" by employees with greater seniority will be limited to:

(i) The same layoff unit; and

(ii) Classification in which the "bumping" employee previously held permanent status; and

(iii) Position at the current salary range of the employee doing the bumping, or lower; and

(iv) Employee with the least seniority within the same category of full-time or part-time employment; and

(v) Competition at one progressively lower classification at a time.

(f) An employee may not exercise a bumping option in lieu of separation due to a reduction in force if there is within the agency a vacant position which satisfies all of the criteria set forth below.

The position is one which:

(i) The agency intends to fill;

(ii) Is in the current classification of the employee being offered the option, or in a classification within which the employee being offered the option previously held permanent status;

(iii) Is at a salary range no lower than the range that would have otherwise been a bumping option;

(iv) Is located within a reasonable commuting distance of the employee's permanent work location; and

(v) Is on the same or similar workshift as the one which the employee currently holds.

(g) When an employee has previously held permanent status in more than one classification at the same salary range and is eligible to bump, then the employee shall be offered the option to bump into the position occupied by the employee with the least seniority.

(h) The right to actually "bump" shall be exercised only after the employee to be "bumped" has received at least fifteen calendar days' notice of the scheduled action.

(i) Options of full-time positions will be offered first to full-time employees before part-time positions are offered. For the purpose of these offers, employees who previously accepted part-time positions due to a reduction in force action or to lessen the impact of a reduction in force shall be considered full-time employees.

(j) Seniority for part-time employees will be computed on a basic payroll hour basis within the same provision and restrictions of the general definition of seniority. When part-time employees become full-time employees, their payroll hours will be integrated on a comparable time basis as full-time employees.

(k) Permanent employees who have been scheduled for reduction in force shall have the right to take a transfer or a voluntary demotion to a vacancy that is to be filled in their own layoff unit for which they qualify, as determined by the director of personnel. This right is to be exercised according to the seniority of those desiring the same vacancy.

(l) Options of other than permanent positions as named in (m) of this subsection are to be made if no permanent position to be filled is available within a reasonable commuting distance.

(m) The reduction in force procedure shall contain the statement that, "No permanent employee shall be separated from state service through reduction in force without being offered within fifteen calendar days prior to what would be the permanent employee's effective separation those positions at the same or lesser salary range within the layoff unit for which he/she qualifies, currently being held by emergency, temporary, probationary, or intermittent employees."

(n) The salary of an employee who has accepted a lower position will be reduced to the top of the range of the lower class unless the previous salary is within the range of the new class, in which case it will remain unchanged.

(4) The agency shall submit the procedure to the director of personnel for approval.

(5) Vacancies will not be filled either by local list procedures or on a temporary, intermittent, or seasonal basis without contacting the department of personnel in an effort to fill the positions by qualified employees who have been or are scheduled for separation due to reduction in force.

(6) When a majority of the positions in a layoff unit other than in project employment is to be eliminated because of a lack of funds and/or work, permanent employees in such positions shall be offered, according to their seniority, those positions in classes in which they have held permanent status which are currently being held by emergency, temporary, or probationary employees; provided they have not rejected offers of vacant positions made by certifications from the registers. Such options shall be offered in accordance with the following requirements:

(a) Positions in the employee's own agency and within a reasonable commuting distance shall be offered first; second, in the classified service within a reasonable commuting distance; third, anywhere within the employee's own agency; and fourth, throughout the classified service.

(b) A permanent employee's right to fill a position may be exercised only within fifteen calendar days prior to the effective date of separation.

(c) Offers will be made in accordance with a procedure established by the director of personnel.

(7) In order to exercise an option to a position which may require selective criteria, the following applies. The option may be exercised only by an employee who possesses the required specialized qualifications when:

(a) The criteria were approved when the position was established, reallocated or last filled; or

(b) The specialized qualifications were previously required for a classification that was later merged with other classifications that did not require them; or

(c) When, at a subsequent time, it was determined that the position requires the performance of specialized duties that would warrant future selective certification.

(d) In the case of (c) of this subsection, the selective criteria shall not be applied for the purposes of determining reduction in force options until six months after the notification of the new duties has been made to the department of personnel.

(e) In the case of (a), (b) and (c) of this subsection, the director of personnel or designee must have determined that the specialized qualifications are still essential for the successful job performance and the qualifications could not be learned within a reasonable length of time.

(8) Options to positions which are covered by WAC 356-30-012 or WAC 67-16-040 may be exercised only by employees who, at the time they are notified they are scheduled for reduction in force, have authorized a background check as provided for in WAC 356-30-012 or WAC 67-16-040 and are not disqualified for the available option as a result of the background check.

[Statutory Authority: RCW 41.06.150. 01-19-032, 356-30-330, filed 9/13/01, effective 10/14/01; 96-02-073, 356-30-330, filed 1/3/96, effective 2/3/96. Statutory Authority: RCW 41.06.040 and 41.06.150. 92-20-026 and 92-22-042 (Orders 411 and 411A), 356-30-330, filed 9/28/92 and 10/27/92, effective 11/1/92 and 11/27/92; 91-23-106 (Order 394), 356-30-330, filed 11/20/91, effective 12/21/91. Statutory Authority: RCW 41.06.150. 88-18-096 (Order 308), 356-30-330, filed 9/7/88, effective 11/1/88; 87-06-024 (Order 271), 356-30-330, filed 2/24/87; 85-19-080 (Order 232), 356-30-330, filed 9/18/85; 85-09-030 (Order 221), 356-30-330, filed 4/12/85. Statutory Authority: RCW 41.06.150, 41.06.175, 41.06.185, 41.06.195 and 41.06.205. 84-17-042 (Order 209), 356-30-330, filed 8/10/84. Statutory Authority: RCW 41.06.150. 83-24-002 (Order 193), 356-30-330, filed 11/28/83; 83-13-091 (Order 186), 356-30-330, filed 6/17/83; 83-08-010 (Order 181), 356-30-330, filed 3/25/83; 83-01-115 (Order 179), 356-30-330, filed 12/22/82. Statutory Authority: RCW 41.06.150(17). 82-19-092 (Order 175), 356-30-330, filed 9/22/82; 81-20-060 (Order 161), 356-30-330, filed 10/5/81; Order 112, 356-30-330, filed 11/7/77; Order 63, 356-30-330, filed 2/26/74; Order 58, 356-30-330, filed 9/10/73; Order 36, 356-30-330, filed 7/1/71, effective 8/1/71. Formerly WAC 356-24-400.]

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