WSR 05-04-088

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed February 2, 2005, 8:07 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-58-120 What is a disciplinary demotion and what changes may occur in salary?, 357-58-125 What is an involuntary downward movement and how does that affect the salary?, 357-58-130 Do salary increases greater than five percent (5%) for a group of employees need approval?, 357-58-135 Who can provide lump-sum performance recognition payment to employees?, 357-58-140 Is there a limit to the amount an employee can receive for performance recognition pay?, 357-58-145 When may an agency authorize lump sum relocation compensation?, 357-58-150 For what reasons may an employee be required to pay back the relocation payment?, 357-58-155 Must the agency develop written criteria for relocation compensation?, 357-58-160 How are hours of work established for WMS employees?, 357-58-165 Do WMS employees receive leave benefits?, 357-58-170 What about other pay issues?, 357-58-175 Can an employer authorize lump-sum vacation leave or accelerate vacation leave accrual rates to support the recruitment and/or retention of an incumbent or candidate for a WMS position?, 357-58-180 Must an agency have a policy regarding authorization of additional leave to support the recruitment of a candidate or the retention of an incumbent for a WMS position?, 357-58-185 Must an agency develop a recruitment and selection policy and/or procedure for WMS positions?, 357-58-190 What must be addressed in agency's WMS recruitment and selection policy and/or procedure?, 357-58-195 Are employers required to grant promotional preference when filling WMS positions?, 357-58-200 How may transfers occur?, 357-58-205 Under what conditions may an employer reassign a WMS employee?, 357-58-210 When may a WMS employee transfer to a general service position and vice versa?, 357-58-215 May a permanent employee voluntarily demote to general service?, 357-58-220 May a WMS employee accept a nonpermanent appointment in the general service?, 357-58-225 What return rights must an employer provide to a permanent WMS employee who accepts a nonpermanent appointment in the general service?, 357-58-230 May a WMS employee accept an appointment to a project position in the general service and does the employee have any return right to his/her permanent WMS position?, and 357-58-235 May employers create WMS positions in projects?

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 demotion, transfer and reassignment for Washington Management Service (WMS) employees, salary increases and relocation compensation for WMS employees, hours of work for WMS employees, leave benefits for WMS employees, recruitment and selection of WMS employees and return rights for 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 357-58-120   What is a disciplinary demotion and what changes may occur in salary?   Demotion for cause is a disciplinary demotion. A disciplinary demotion results in the:

(1) Assignment of responsibilities which results in a lower salary standard and/or lower evaluation points for the same position, or

(2) Movement to a different position that has a lower salary standard and/or lower evaluation points.

A disciplinary demotion may result in a salary decrease. Any salary decrease must comply with the salary basis test of the Fair Labor Standards Act.

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NEW SECTION
WAC 357-58-125   What is an involuntary downward movement and how does that affect the salary?   An involuntary downward movement is based on a non-disciplinary reassignment of duties that results in a lower salary standard and/or lower evaluation points for an employee's current position.

Such downward movement will not decrease the employee's current salary. The employee's current salary will be retained until such time as it is exceeded by the WMS salary structure or the employee leaves the position.

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NEW SECTION
WAC 357-58-130   Do salary increases greater than five percent (5%) for a group of employees need approval?   Salary changes greater than five percent (5%) proposed for any group of employees must be reviewed and approved by the director of the department of personnel.

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NEW SECTION
WAC 357-58-135   Who can provide lump-sum performance recognition payment to employees?   The director of the department of personnel or an agency that has received performance management confirmation for decentralized compensation administration may provide additional pay to employees on a lump sum basis. Such payment to an individual or group of employees is to recognize outstanding performance or the achievement of pre-defined work goals. Any pay granted under this section is a premium that is not part of the base salary.

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NEW SECTION
WAC 357-58-140   Is there a limit to the amount an employee can receive for performance recognition pay?   Performance recognition pay may not exceed fifteen percent (15%) of an employee's annual base salary unless approved by the director of the department of personnel.

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NEW SECTION
WAC 357-58-145   When may an agency authorize lump sum relocation compensation?   An agency director may authorize lump sum relocation compensation, within existing resources, whenever:

(1) It is reasonably necessary that a person move his or her home to accept a transfer or appointment; or

(2) It is necessary to successfully recruit or retain a qualified candidate or employee who will have to move his or her home in order to accept the position.

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NEW SECTION
WAC 357-58-150   For what reasons may an employee be required to pay back the relocation payment?   If the employee receiving the relocation payment terminates or causes termination with the state within one year of the date of the appointment or transfer, that employee may be required to pay back the lump sum payment. Termination as a result of layoff, disability separation, or other good cause as determined by the agency director will not require the employee to repay the relocation compensation.

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NEW SECTION
WAC 357-58-155   Must the agency develop written criteria for relocation compensation?   An agency must develop written criteria prior to authorizing lump sum relocation compensation. The criteria must include:

(1) A description of the circumstances for which relocation compensation will be granted; and

(2) The method that will be used to determine the amount of relocation compensation.

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NEW SECTION
WAC 357-58-160   How are hours of work established for WMS employees?   Agencies must assign each WMS position to one of the overtime eligibility designations identified in the compensation plan and determine the position's work week.

For overtime-eligible employees, compensation must be in accordance with the following sections of chapter 357-28 WAC:

WAC 357-28-245

WAC 357-28-250

WAC 357-28-255

WAC 357-28-260

WAC 357-28-265

WAC 357-28-275

WAC 357-28-280

WAC 357-28-285

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NEW SECTION
WAC 357-58-165   Do WMS employees receive leave benefits?   Leave accrual, leave usage, and paid holidays for WMS employees must be in accordance with chapter 357-31 WAC.

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NEW SECTION
WAC 357-58-170   What about other pay issues?   Each agency may establish policies and practices for additional compensation such as shift differential, call back pay, and standby pay in accordance with the provisions of chapter 357-28 WAC.

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NEW SECTION
WAC 357-58-175   Can an employer authorize lump-sum vacation leave or accelerate vacation leave accrual rates to support the recruitment and/or retention of an incumbent or candidate for a WMS position?   In addition to the vacation leave accruals as provided in WAC 357-31-165, an employer may authorize additional vacation leave as follows to support the recruitment and/or retention of an incumbent or candidate for a specific WMS position:

(1) Employers may authorize an accelerated accrual rate for an incumbent or candidate; and/or

(2) Employers may authorize a lump-sum accrual of up to 80 hours of vacation leave for the incumbent or candidate.

Vacation leave accrued under this section must be used in accordance with the leave provisions of chapter 357-31 WAC and cannot be used until the employee has completed six continuous months of service.

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NEW SECTION
WAC 357-58-180   Must an agency have a policy regarding authorization of additional leave to support the recruitment of a candidate or the retention of an incumbent for a WMS position?   In order to authorize additional leave for the recruitment and/or retention of a candidate or incumbent for a WMS position, an agency must have a written policy that:

(1) Identifies the reasons for which the employer may authorize additional leave; and

(2) Requires that lump sum accruals only be granted after services have been rendered in accordance with express conditions established by the employer.

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NEW SECTION
WAC 357-58-185   Must an agency develop a recruitment and selection policy and/or procedure for WMS positions?   Each agency must develop a recruitment and selection policy and/or procedure that will best meet client, employee, management, and organizational needs. The policy and/or procedure must address filling positions and employee movement.

The policy and procedures for recruitment and selection must be inherently flexible and permit methods and strategies to be varied and customized for each recruitment and selection need.

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NEW SECTION
WAC 357-58-190   What must be addressed in agency's WMS recruitment and selection policy and/or procedure?   An agency's WMS recruitment and selection policy must:

(1) Provide for the ability to consider any or all qualified candidates for hire, promotion, or internal movement;

(2) Ensure that hiring decisions are fair, objective, and based on the evaluation of leadership and other job related competencies and characteristics required for successful job performance and performance management;

(3) Support workforce diversity and affirmative action goals;

(4) Consider the career development of the agency's employees and other state employees;

(5) Ensure that hiring decisions are not based on patronage or political affiliation;

(6) Ensure compliance with state and federal laws relating to employee selection and nondiscrimination;

(7) Encourage decentralized and regional administration of the recruitment and selection processes when it is appropriate for the agency.

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NEW SECTION
WAC 357-58-195   Are employers required to grant promotional preference when filling WMS positions?   Agencies are not required to grant promotional preference when recruiting and selecting for WMS positions. However, an agency may determine, on an individual position basis, if it is in the organization's best interest to limit the candidate pool to promotional candidates. The agency defines who qualifies as a promotional candidate.

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NEW SECTION
WAC 357-58-200   How may transfers occur?   At any time, an employee and the affected agency or agencies may agree to the transfer of a WMS employee within an agency or between agencies.

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NEW SECTION
WAC 357-58-205   Under what conditions may an employer reassign a WMS employee?   At any time, an agency may reassign an employee or a position and it's incumbent to meet client or organizational needs. If the new location is within a reasonable commute, as defined by the agency, the employee must accept the reassignment.

If the reassignment is beyond a reasonable commute and the employee does not agree to the reassignment, the employee has layoff rights in accordance with this chapter.

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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-58-210   When may a WMS employee transfer to a general service position and vice versa?   A permanent employee may transfer from a WMS position to a Washington general service position if his/her salary is within the salary range of the Washington general service position.

A permanent employee may transfer from a Washington general service position to a WMS position if his/her salary is within the management band assigned to the Washington management service position.

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NEW SECTION
WAC 357-58-215   May a permanent employee voluntarily demote to general service?   A permanent employee may voluntarily demote from a WMS position to a Washington general service position at a lower pay level than his/her current position.

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NEW SECTION
WAC 357-58-220   May a WMS employee accept a nonpermanent appointment in the general service?   A permanent WMS employee may accept a nonpermanent appointment to a general service position as provided in chapter 357-19 WAC.

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NEW SECTION
WAC 357-58-225   What return rights must an employer provide to a permanent WMS employee who accepts a nonpermanent appointment in the general service?   When a permanent WMS employee has accepted a nonpermanent appointment in the general service and the nonpermanent appointment ends, the agency must at a minimum provide the employee the layoff rights of his/her permanent WMS position. The agency may provide additional return rights such as returning the employee to a permanent position without invoking the employee's layoff rights.

If the appointment is within the same agency, the agency must provide the employee the right to return at anytime. If the appointment is to a different agency, the agency must provide the employee the right to return for six (6) months from the time the employee is appointed. Any return right after six (6) months is negotiable between the employee and agency and must be agreed to prior to the employee accepting the nonpermanent appointment.

Upon return to a permanent position, the employer will determine the employee's salary.

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NEW SECTION
WAC 357-58-230   May a WMS employee accept an appointment to a project position in the general service and does the employee have any return right to his/her permanent WMS position?   A permanent WMS employee may accept an appointment to a project position in the general service as provided in chapter 357-19 WAC. Any right to return to the employee's permanent WMS position is negotiable between the employer and employee and must be agreed to prior to the employee accepting the project position. If no return right is agreed to, the employee has the rights provided by chapter 357-46 WAC upon layoff from the project.

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NEW SECTION
WAC 357-58-235   May employers create WMS positions in projects?   Employers may designate project positions that meet the definition of manager as WMS project positions.

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Washington State Code Reviser's Office