WSR 04-13-190

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed June 23, 2004, 11:39 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: New sections WAC 357-40-010 Can an appointing authority take disciplinary action?, 357-40-015 Can an appointing authority take action other than dismissal, suspension, demotion or reduction in base salary to address unsatisfactory performance?, 357-40-020 When must an employee be notified of a dismissal, demotion, or reduction in base salary?, 357-40-025 What must be in the written notice of dismissal, demotion, or reduction in base salary?, 357-40-030 Under what circumstances may an employer dismiss an employee without fifteen (15) calendar days' notice?, 357-40-035 When must an employee be notified of a suspension?, 357-40-040 What must be in the written notice of suspension?, 357-40-045 Is there a limitation to how long an employee can be suspended?, 357-40-050 When can an employer separate a permanent employee for unauthorized absence?, 357-40-055 How is an employee who is being separated for unauthorized absence notified?, 357-40-060 How can an employee separated for unauthorized absence petition for reinstatement?, and 357-40-065 Can a permanent employee appeal if the employer does not reinstate the employee under WAC 357-40-060?

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, 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 disciplinary actions for state 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 disciplinary actions for state employees. 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.

June 23, 2004

E. C. Matt

Director


NEW SECTION
WAC 357-40-010   Can an appointing authority take disciplinary action?   An appointing authority may dismiss, suspend without pay, demote, or reduce the base salary of a permanent employee under his/her jurisdiction for just cause.

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NEW SECTION
WAC 357-40-015   Can an appointing authority take action other than dismissal, suspension, demotion or reduction in base salary to address unsatisfactory performance?   Employers may develop a corrective discipline policy that identifies actions that an appointing authority may take other than dismissal, suspension, demotion, or reduction in base salary, that represent alternative formal measures that do not deprive an employee of pay, yet still help an employee address unsatisfactory performance. Actions taken by an appointing authority in accordance with the employer's corrective discipline policy carry the same weight as disciplinary actions which impact pay.

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NEW SECTION
WAC 357-40-020   When must an employee be notified of a dismissal, demotion, or reduction in base salary?   The appointing authority must notify an employee in writing at least fifteen (15) calendar days before the effective date of the dismissal, demotion, or reduction in base salary. At the employer's discretion, an employee being dismissed may be paid in lieu of the notice period or may be immediately dismissed without fifteen (15) calendar days' notice in accordance with WAC 357-40-030.

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NEW SECTION
WAC 357-40-025   What must be in the written notice of dismissal, demotion, or reduction in base salary?   The notice must include the specific charge(s) and the employee's right to appeal to the board as provided in chapter 357-52 WAC.

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NEW SECTION
WAC 357-40-030   Under what circumstances may an employer dismiss an employee without fifteen (15) calendar days' notice?   An employer may dismiss an employee without fifteen (15) calendar days' notice as follows:

(1) An appointing authority may dismiss an employee effective immediately with pay in lieu of the fifteen (15) calendar days' notice period. As required by WAC 357-40-025 the appointing authority must still provide written notice of the specific charge(s) and the employee's rights to appeal to the board as provided in chapter 357-52 WAC.

(2) An appointing authority may dismiss an employee effective immediately without pay in lieu of the fifteen (15) calendar days' notice period if the appointing authority determines that continued employment of the employee jeopardizes the good of the service. The appointing authority must provide written notice of the immediate dismissal stating the reason(s) for dismissal, the reasons immediate action is necessary, and the employee's right to appeal to the board as provided in chapter 357-52 WAC.

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NEW SECTION
WAC 357-40-035   When must an employee be notified of a suspension?   An employee being suspended must be notified in writing no later than one day after the suspension takes effect.

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NEW SECTION
WAC 357-40-040   What must be in the written notice of suspension?   The suspension notice must include the specific charge(s) and the duration of the suspension. It must also include the employee's right to appeal to the board as provided in chapter 357-52 WAC.

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NEW SECTION
WAC 357-40-045   Is there a limitation to how long an employee can be suspended?   An appointing authority may not suspend without pay a permanent employee for more than fifteen calendar days as a single penalty or more than thirty calendar days in any one calendar year as an accumulation of several penalties.

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NEW SECTION
WAC 357-40-050   When can an employer separate a permanent employee for unauthorized absence?   An employer may separate a permanent employee who has been absent without authorized leave for a period of three consecutive working days.

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NEW SECTION
WAC 357-40-055   How is an employee who is being separated for unauthorized absence notified?   Following an unauthorized absence of at least three (3) consecutive working days, the employer may separate an employee by sending a separation notice to the employee by personal service or by United States mail to the last known address of the employee.

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NEW SECTION
WAC 357-40-060   How can an employee separated for unauthorized absence petition for reinstatement?   A permanent employee separated for unauthorized absence may petition the appointing authority in writing to consider reinstatement. The employee must provide proof that the absence was involuntary or unavoidable. The employer must receive the employee's petition within seven calendar days of personal service or deposit in the United States mail of the separation notice.

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NEW SECTION
WAC 357-40-065   Can a permanent employee appeal if the employer does not reinstate the employee under WAC 357-40-060?   If a permanent employee is not reinstated under WAC 357-40-060, the employee must be notified in writing of the right to appeal to the board as provided in chapter 357-52 WAC. Appeals may not be based on information other than that shared with the employer at the time of the request for reinstatement.

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