WSR 04-13-030

PROPOSED RULES

PERSONNEL RESOURCES BOARD


[ Filed June 9, 2004, 11:05 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-46-005 What is the impact of a layoff?, 357-46-010 What are the reasons for layoff?, 357-46-015 How does an employer implement a layoff action?, 357-46-020 What must be included in the employer's layoff procedure?, 357-46-025 How much layoff notice must employers give employees?, 357-46-030 What must be included in the layoff notice?, 357-46-035 Layoff option, 357-46-040 What makes one position comparable to another when determining layoff options?, 357-46-045 How do employers establish competency and other position requirements?, 357-46-050 How does an employer determine an employee's employment retention rating?, 357-46-060 Does a veteran receive any preference in layoff?, 357-46-070 Which employees are eligible to have their name placed on an employer's internal layoff list?, 357-46-075 Can an employee be on an internal layoff list for classes with a higher salary range than the class from which the employee is being laid off?, 357-46-080 Which employees are eligible to have their name placed on an employer's statewide layoff list?, 357-46-085 How are eligible candidates certified from the internal and statewide layoff list?, 357-46-090 What is the purpose of the general government transition pool program?, 357-46-095 Who is eligible for the general government transition pool program?, 357-46-100 Who administers and establishes operating procedures for the general government transition pool program?, 357-46-105 Do employees have the right to appeal actions taken within the transition pool program?, 357-46-110 Must employees who are appointed to a position through the layoff process serve any type of review period?, 357-46-115 When is a transition review period not allowed?, 357-46-120 What are the employer's obligations when the employer requires a transition review period?, 357-46-125 What happens if an employee does not complete the transition review period?, 357-46-130 How long is an individual eligible to have his/her name on an employer's internal and statewide layoff list?, 357-46-135 What causes an individual's name to be removed from a layoff list?, 357-46-140 What is the notice requirement when an individual has been removed from an internal or statewide layoff list?, 357-46-145 To whom and by when must an individual request a review of the removal from an internal or statewide layoff list?, 357-46-150 If an employee wants to resign from employment, how much notice should the employee give the employer?, 357-46-155 Can an employee withdraw a resignation?, 357-46-160 What is a disability separation?, 357-46-165 When may an employer separate an employee in accordance with WAC 357-46-160?, 357-46-170 What must a permanent employee be notified of before he/she is separated due to disability?, 357-46-175 Can an employee appeal a disability separation?, 357-46-180 Can an employee be separated during the probationary period?, 357-46-185 What are the notice requirements before separating a probationary employee?, 357-46-190 Can an individual appeal being separated during the probationary period?, 357-46-195 Can an employer separate an employee for nondisciplinary reasons?, 357-46-200 What is the notice requirement before separating an employee for nondisciplinary reasons under the provisions of WAC 357-46-195?, and 357-46-205 Can an employee appeal being separated for nondisciplinary reasons in accordance with WAC 357-46-195 and 357-46-200?

Hearing Location(s): Department of Personnel, 521 Capitol Way South, Olympia, WA, on July 29, 2004, at 10:00 a.m.

Date of Intended Adoption: July 29, 2004.

Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT," fax (360) 586-4694, by July 23, 2004.

Assistance for Persons with Disabilities: Contact Department of Personnel by July 23, 2004, TDD (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules pertain to layoff and separation of state employees.

Summary: Due to the passage of SHB 1268 the director of the Department of Personnel has rule-making authority regarding the topic of layoff and separation. The proposed rules implement this provision of the Personnel System Reform Act.

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.

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.

June 9, 2004

E. C. Matt, Director

Department of Personnel


NEW SECTION
WAC 357-46-005   What is the impact of a layoff?   Layoff is an employer-initiated action taken in accordance with WAC 357-46-010 that results in:

(1) Separation from service with an employer;

(2) Employment in a class with a lower salary range maximum;

(3) Reduction in the work year; or

(4) Reduction in the number of work hours.

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NEW SECTION
WAC 357-46-010   What are the reasons for layoff?   (1) Employees may be laid off without prejudice according to layoff procedures that are consistent with these rules. 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) Employee's ineligibility to continue in a position following its reallocation to a class with a higher salary range maximum; or

(d) Employee's ineligibility to continue, or choice not to continue, in a position following its reallocation to a class with a lower salary range maximum.

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NEW SECTION
WAC 357-46-015   How does an employer implement a layoff action?   The employer must have a layoff procedure. When the employer determines a layoff is necessary, the 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 357-46-020   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 357-46-025;

(4) Provide layoff options for permanent employees being laid off as provided in WAC 357-46-035;

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

(6) Identify the employer's legitimate business requirements if the employer is going to consider those requirements in determining layoff options under WAC 357-46-035;

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.
(7) Describe how employment retention ratings will be calculated, including options for factoring performance into ratings; and

(8) 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 357-46-025   How much layoff notice must employers give employees?   (1) Probationary employees being separated due to layoff must receive at least one (1) calendar day's notice. (See WAC 357-46-185)

(2) Permanent employees being laid off must receive at least fifteen (15) calendar days' notice.

(a) If the employee has a layoff option to a position within a reasonable commuting distance as defined by the employer's layoff procedure, the employer may implement the layoff action before the fifteen-day notice period expires. If this is done, the employee must receive payment of salary for the days that the employee would have worked in his/her position during the fifteen-day notice period.

(b) An employee may request the employer waive the fifteen-day notice period. If the employer agrees to an employee's request, the employer is not required to provide payment of salary in lieu of the notice period.

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NEW SECTION
WAC 357-46-030   What must be included in the layoff notice?   The layoff notice for permanent employees must be in writing and minimally include all the following items:

(1) The reason or basis for layoff.

(2) The employee's layoff options as determined by WAC 357-46-035, including any requirement for the employee to serve a transition review period.

(3) The specific layoff list(s) that the employee is entitled to request placement on according to WAC 357-46-070 and WAC 357-46-080 and information on how to request placement on the statewide layoff list.

(4) The date by when the employee must select a layoff option.

(5) The employee's right to appeal the layoff.

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NEW SECTION
WAC 357-46-035   Layoff option.   (1) What option does a permanent employee have to take a position when the employee is scheduled for layoff?

Within the layoff unit, a permanent employee scheduled for layoff must be offered the option to take a position, if available, that meets the following criteria:

(a) The position is allocated to the class in which the employee holds permanent status at the time of the layoff. If no option to a position in the current class is available, the employee's option is to a position in a class in which the employee has held permanent status that is at the same salary range. If the employee has no option to take a position at the same salary range, the employee must be given an opportunity to take a position in a lower class in the same occupational category/class series, in descending salary order. The employee does not have to have held permanent status in the lower class in order to be offered the option to take a position in the class.

(b) The position is comparable to the employee's current position as defined by the employer's layoff procedure.

(c) The employee satisfies the competencies and other position requirements.

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

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

(a) If a permanent employee has no option available under subsection (1) of this section, the employer must determine if there is an available position in the layoff unit to offer the employee in lieu of separation that meets the following criteria:

(i) The position is at the same or lower salary range maximum as the position the employee is being laid off from;

(ii) The position is vacant and less than comparable or held by a probationary employee or an employee in a nonpermanent appointment; and

(iii) The position is one for which the employee meets the competencies and other position requirements.

(b) If more than one qualifying position is available, the position with the highest salary range maximum is the one that must be offered.

(3) What happens when a class in which the employee previously held permanent status has been revised or abolished?

If a class in which an employee has previously held permanent status has been revised or abolished, the employer shall determine the closest matching class to offer as a layoff option. The closest matching class must be at the same or lower salary range maximum as the class from which the employee is being laid off.

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NEW SECTION
WAC 357-46-040   What makes one position comparable to another when determining layoff options?   Comparability of positions is defined by the employer's layoff procedure, and may include such factors as geographic location, number of hours per week, the shift time of the position, and any other factors as defined by the employer in its layoff procedure.

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NEW SECTION
WAC 357-46-045   How do employers establish competency and other position requirements?   In establishing competency and other position requirements, employers may use any of the following documented criteria:

(1) Licensing/certification requirements;

(2) Position description;

(3) Class specification;

(4) Skills/competencies listed on the position's most recent recruitment announcement or the last announcement used to fill the position;

(5) Bona fide occupational requirement(s) approved by the Washington human rights commission; or

(6) Additional documented competencies or requirements not reflected in the position description.

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NEW SECTION
WAC 357-46-050   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 357-46-060   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 year of active military service.

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NEW SECTION
WAC 357-46-070   Which employees are eligible to have their name placed on an employer's internal layoff list?   (1) Permanent employees of the employer who satisfy the following criteria must have their name placed on the employer's internal layoff list if the employee exercises this option within the two-year eligibility period:

(a) Employees who are laid off or have been notified by the employer that they are scheduled to be laid off are eligible to be on the internal layoff list for classes in which they held permanent status during the current period of unbroken service at the same or lower salary range and lower classes in the same occupational category/class series. Permanent status is not required for the lower classes in the occupational category/class series.

(b) Employees who accept a voluntary demotion in lieu of layoff are eligible to be on the internal layoff list for the class from which they demoted and classes at that salary range and lower salary ranges in which the employee held permanent status during the current period of unbroken service and lower classes in the same occupational category. Permanent status is not required for the lower classes in the occupational category.

(c) Employees who accepted less than comparable positions as defined by the employer's layoff procedure are eligible to be on the internal layoff list for classes in which they held permanent status at the same or lower salary range and lower classes in the same occupational category. Permanent status is not required for the lower classes in the occupational category.

(d) Employees who have not successfully completed a trial service period and are placed in a non-permanent position following reversion are eligible to be on the internal layoff list for classes in which the employee previously held permanent status during the current period of unbroken service.

(e) Employees who remain in a position reallocated to a lower salary range are eligible to be on the internal layoff list for the class the employee held permanent status in prior to the reallocation.

(2) Employees who have been demoted for cause from a class are not eligible to be on the internal layoff list for that class.

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NEW SECTION
WAC 357-46-075   Can an employee be on an internal layoff list for classes with a higher salary range than the class from which the employee is being laid off?   An employee may be on the internal layoff list for classes with a higher salary range than the class from which the employee is being laid off as long as the employee has held permanent status in the higher class and the employer's layoff procedure allows access to higher level classes.

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NEW SECTION
WAC 357-46-080   Which employees are eligible to have their name placed on an employer's statewide layoff list?   (1) Permanent employees who satisfy the following criteria must have their name placed on the statewide layoff for other employers if the employee exercises this option within the two-year eligibility period:

(a) Employees who are laid off or notified by the employer that they are scheduled to be laid off are eligible to be on the statewide layoff list for classes in which they held permanent status during the current period of unbroken service at the same or lower salary range and lower classes in the same occupational category/class series. Permanent status is not required in the lower classes in the occupational category/class series.

(b) Employees who accept a voluntary demotion in-lieu of layoff are eligible to be on the statewide list for the class from which they demoted and classes at that salary range and lower salary ranges in which the employees held permanent status and lower classes in the same occupational category/class series. Permanent status is not required for the lower classes in the occupational category/class series.

(c) Employees who accepted less-than-comparable positions at the time of layoff are eligible to be on the statewide layoff list for classes in which they held permanent status at the current or lower salary range and lower classes in the same occupational category/class series. Permanent status is not required for the lower classes in the occupational category/class series.

(2) Employees who have been demoted for cause from a class are not eligible to be on the statewide layoff list for that class.

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NEW SECTION
WAC 357-46-085   How are eligible candidates certified from the internal and statewide layoff list?   Certification from the employer's internal layoff list and the statewide layoff list must be made in accordance with WAC 357-16-130.

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NEW SECTION
WAC 357-46-090   What is the purpose of the general government transition pool program?   The purpose of the transition pool program is to minimize the effects of staff reductions on general government employees while meeting needs of general government employers to fill vacant positions. The program does not apply to higher education employees.

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NEW SECTION
WAC 357-46-095   Who is eligible for the general government transition pool program?   The following individuals are eligible to participate in the general government transition pool program:

(1) All general government permanent employees separated by layoff or notified by their employer that they are at risk of layoff;

(2) Employees who are eligible to participate in the return-to-work initiative program in accordance with chapter 357-19 WAC;

(3) Permanent Washington management service employees who accept a position in Washington general service and are being voluntarily or involuntarily reverted during the trial service period;

(4) Former permanent classified general government employees who have submitted a written request for reemployment within two (2) years of disability separation and who have met the reemployment requirements of WAC 357-19-475; and

(5) General government employee business unit members whose contract has expired or been terminated.

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NEW SECTION
WAC 357-46-100   Who administers and establishes operating procedures for the general government transition pool program?   The department administers the general government transition pool program. The director develops and implements appropriate operating procedures to facilitate the program. The operating procedures include the following requirements:

(1) General government employers must certify transition pool candidates when a certified pool contains eligible candidates other than layoff or internal promotional candidates.

(2) Transition pool candidates must satisfy the competency and other position requirements to be considered for a position.

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NEW SECTION
WAC 357-46-105   Do employees have the right to appeal actions taken within the transition pool program?   Employees participating in the transition pool program do not have the right of appeal within this program.

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NEW SECTION
WAC 357-46-110   Must employees who are appointed to a position through the layoff process serve any type of review period?   An employer may require a transition review period when an employee is appointed to a position as a layoff option or is appointed from the internal or statewide layoff list or the general government transition pool. (See WAC 357-46-115 for exceptions to this rule.)

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NEW SECTION
WAC 357-46-115   When is a transition review period not allowed?   Employers are not allowed to require a transition review period when an employee is being appointed to a comparable position with the same job duties as the position the employee held permanent status in prior to layoff. The employer determines the comparability of the position.

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NEW SECTION
WAC 357-46-120   What are the employer's obligations when the employer requires a transition review period?   (1) When an employer requires a transition review period is required for a position, the employer must provide the employee with written notice of the transition review period.

(2) During the transition review period, the employer must provide the employee with instruction and/or training in the duties of the new position.

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NEW SECTION
WAC 357-46-125   What happens if an employee does not complete the transition review period?   (1) The employer may involuntarily separate an employee from a position during the transition review period or the employee may choose to voluntarily separate from a position. An employee may voluntarily separate a maximum of three (3) times as a result of a single layoff action.

(2) If an employee is separated during a transition review period, the employee's name is reinstated on any layoff list from which it was removed at the time of placement in the position. The employee remains on the list until the employee's initial eligibility expires or he/she is rehired. The time served during the transition review period does not extend the period of eligibility for a layoff list or the transition pool.

(3) Separation during the transition review period is not subject to appeal.

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NEW SECTION
WAC 357-46-130   How long is an individual eligible to have his/her name on an employer's internal and statewide layoff list?   An individual is eligible to have his/her name on an employer's internal and statewide layoff lists for two (2) years from the effective date of the qualifying action.

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NEW SECTION
WAC 357-46-135   What causes an individual's name to be removed from a layoff list?   (1) An individual's name must be removed from an internal layoff list or statewide layoff list at the request of the individual or upon an employee's retirement, resignation, or dismissal from the employer.

(2) An individual's name may be removed from the internal and/or statewide layoff list for a class when:

(a) The individual is appointed to a position in the class. The individual may also be removed from the internal and/or layoff list for any classes with a lower salary range maximum.

(b) The individual has been certified from the layoff list and waives consideration for a position in the class three (3) times.

(c) The employer determines good and sufficient reason exists.

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NEW SECTION
WAC 357-46-140   What is the notice requirement when an individual has been removed from an internal or statewide layoff list?   An individual who has been removed from an internal or statewide layoff list must be notified in writing at the time of removal. The notification must provide the specific reason for the removal and inform the individual of the right to request a review of the removal under the provisions of WAC 357-46-145.

For purposes of this rule, written notice may be provided using alternative methods such as e-mail, campus mail, or the state mail service in accordance with WAC 357-04-105.

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NEW SECTION
WAC 357-46-145   To whom and by when must an individual request a review of the removal from an internal or statewide layoff list?   If the employer is responsible for maintaining the layoff list, requests for review of removal from a layoff list must be made to the employer. If the director is responsible for maintaining the layoff list, requests for review of removal from a layoff list must be made to the department.

The request for a review must be received at the employer's office or the department's office within twenty (20) calendar days following notice of the action for which a review is requested.

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NEW SECTION
WAC 357-46-150   If an employee wants to resign from employment, how much notice should the employee give the employer?   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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NEW SECTION
WAC 357-46-155   Can an employee withdraw a resignation?   An appointing authority or employing official may permit withdrawal of a resignation at any time prior to the effective date.

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NEW SECTION
WAC 357-46-160   What is a disability separation?   A disability separation is an action taken to separate an employee from service when the employer determines that the employee is unable to perform the essential functions of the employee's position or class with or without reasonable accommodation due to mental, sensory, or physical incapacity. Disability separation is not a disciplinary action.

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NEW SECTION
WAC 357-46-165   When may an employer separate an employee in accordance with WAC 357-46-160?   An employer may separate an employee due to disability when any of the following circumstances exist:

(1) The employer is unable to reasonably accommodate the employee.

(2) The employer has medical documentation of the employee's inability to work in any capacity.

(3) The employee requests separation due to disability and the employer has medical information which documents that the employee cannot perform the essential functions of the employee's position or class.

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NEW SECTION
WAC 357-46-170   What must a permanent employee be notified of before he/she is separated due to disability?   A permanent employee being separated due to disability must be informed in writing of the option to apply for reemployment as provided in WAC 357-19-475.

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NEW SECTION
WAC 357-46-175   Can an employee appeal a disability separation?   A permanent employee who has been separated due to disability may appeal the separation as provided in chapter 357-52 WAC unless separation is at the employee's request.

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NEW SECTION
WAC 357-46-180   Can an employee be separated during the probationary period?   An appointing authority may separate a probationary employee who has not completed his/her probationary period.

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NEW SECTION
WAC 357-46-185   What are the notice requirements before separating a probationary employee?   A probationary employee must receive a minimum of one (1) calendar day's written notice before being separated.

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NEW SECTION
WAC 357-46-190   Can an individual appeal being separated during the probationary period?   An individual separated during a probationary period does not have the right to appeal the separation.

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NEW SECTION
WAC 357-46-195   Can an employer separate an employee for non-disciplinary reasons?   An employer may separate a permanent employee from a position or from employment for non-disciplinary reasons such as failure to comply with the conditions of employment which may or may not have existed at the time of initial appointment or failure to authorize or to pass a background check required by the position.

The employer may consider other employment options such as transfer or voluntary demotion in lieu of separation.

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NEW SECTION
WAC 357-46-200   What is the notice requirement before separating an employee for non-disciplinary reasons under the provisions of WAC 357-46-195?   (1) Before separating an employee from employment under the provisions of WAC 357-46-195, the employer must provide at least fifteen (15) calendar days' written notice to the employee and state the reason for separation. If, within the notice period, the employee satisfactorily demonstrates why the separation should not occur, the appointing authority may rescind the separation notice.

(2) The employer should consider reassignment during the notice period if continued employment in the position represents a liability.

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NEW SECTION
WAC 357-46-205   Can an employee appeal being separated for non-disciplinary reasons in accordance with WAC 357-46-195 and WAC 357-46-200?   A permanent employee separated under WAC 357-46-195 may appeal as provided in chapter 357-52 WAC.

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