Purpose: These rules pertain to layoff and separation of state employees.

     Statutory Authority for Adoption: Chapter 41.06 RCW.

      Adopted under notice filed as WSR 04-13-030 on June 9, 2004, and WSR 04-13-190 on June 23, 2004.

     Changes Other than Editing from Proposed to Adopted Version: WAC 357-46-020, a subsection was added that requires employers to address in their layoff procedure the timeframe in which employees must select a layoff option. As a result of discussion with stakeholders it was determined that this addition was necessary.

     WAC 357-46-025, language was added to subsection (2) stating that the employer and employee can agree to waive the fifteen-day notice period of layoff. Subsection (2)(a) and (b) were deleted from the proposed rule. As a result of discussion with stakeholders it was determined that these changes were necessary.

     WAC 357-46-035, language which reads "in which the employee has held permanent status" was added to the third sentence of subsection (1)(a). In subsection (2)(a)(ii) "as defined in WAC 357-01-210" was added. The changes were made to clarify the intent of the proposed language.

     WAC 357-46-120, subsection (3) was added which states that written notice may be provided using alternative methods for purposes of this rule. The change was made [to] allow employers to use alternative methods such as e-mail to notify employees of transition review period requirements.

     WAC 357-46-135, language was added to subsection (1) which states that an individual's name must be removed from the layoff list when their eligibility expires. The change was made to clarify that an individual's name must be removed when his/her eligibility expires.

     WAC 357-46-140, a continuance has been filed on this section.

     WAC 357-46-210, this new section was originally proposed under WSR 04-13-190 as WAC 357-40-050. It was determined through discussion of the proposed rules with stakeholders that this new section should be in chapter 357-46 WAC.

     WAC 357-46-215, this new section was originally proposed under WSR 04-13-190 as WAC 357-40-055. It was determined through discussion of the proposed rules with stakeholders that this new section should be in chapter 357-46 WAC.

     WAC 357-46-220, this new section was originally proposed under WSR 04-13-190 as WAC 357-40-060. It was determined through discussion of the proposed rules with stakeholders that this new section should be in chapter 357-46 WAC.

     WAC 357-46-225, this new section was originally proposed under WSR 04-13-190 as WAC 357-40-065. The WAC number referenced in the title of the rule and the body of the rule was changed to reflect the new WAC number. It was determined through discussion of the proposed rules with stakeholders that this new section should be in chapter 357-46 WAC.

     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 42, 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 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 42, Amended 0, Repealed 0.

     Date Adopted: July 29, 2004.

E. C. Matt

Director

     (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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     (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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     (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) 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 357-46-035;

•	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.

     (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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     (2) Permanent employees being laid off must receive at least fifteen (15) calendar days' notice unless the employer and employee agree to waive the fifteen (15) day notice period.

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     (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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     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 an occupational category/class series in which the employee has held permanent status, 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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     (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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     (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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     (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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     (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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     (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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     (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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     (2) During the transition review period, the employer must provide the employee with instruction and/or training in the duties of the new position.

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

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

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

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