WSR 05-24-128

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed December 7, 2005, 11:20 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-46-135 What causes an individual's name to be removed from a layoff list?, 357-46-140 What is the notice requirement when an individual's name 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?, 357-16-157 Is an eligible's name removed from applicant and/or candidate pools when he/she is appointed to a position?, 357-16-160 How must an employer notify an applicant or candidate who has been removed from an applicant or candidate pool?, 357-16-170 Can an applicant or candidate request a review of his/her examination results or the removal of his/her name from an applicant or candidate pool?, 357-16-175 To whom and by when must an applicant or candidate request a review of the results of an examination or removal from an applicant or candidate pool?, 357-16-177 What procedure must an employer use to review an applicant's or candidate's examination results or the removal of his/her name from an applicant or candidate pool under the provisions of WAC 357-16-170?, and 357-49-010 For what actions may an individual request a director's review?

Hearing Location(s): Department of Personnel, Classroom #4, 600 South Franklin, Olympia, WA, on January 12, 2006, at 10:00 a.m.

Date of Intended Adoption: January 12, 2006.

Submit Written Comments to: Sandi Stewart, Department of Personnel, P.O. Box 47500, fax (360) 586-4694, by January 6, 2006. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

Assistance for Persons with Disabilities: Contact Department of Personnel by January 6, 2006, TTY (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These modifications and new rule remove the requirement to notify an individual who has been removed from layoff lists because of an appointment, eliminates an individual's right to request a review of a removal from a layoff list (when the removal is for a specific reason), requires an individual who is requesting a review of a removal for good and sufficient reason to submit the request to the employer, clarifies that an eligibles name is removed from the applicant pool for a class they have been appointed to and all lower classes in the same class series, and removes an individual's right to request a review of examination results.

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: These modifications and new rule are necessary to clarify when an individual will be removed from a layoff list and when the individual will have the right to appeal a removal and/or examination results.

Name of Proponent: Department of Personnel, governmental.

Name of Agency Personnel Responsible for Drafting: Sandi Stewart, 521 Capitol Way South, Olympia, WA, (360) 664-6324; 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.

December 6, 2005

M. P. Sellars

for Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 04-18-114, filed 9/1/04, effective 7/1/05)

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, expiration of eligibility 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 statewide layoff list for any classes with a lower salary range maximum in that class series/occupational category.

(b) The individual is appointed to a position in a class with a higher salary range maximum in a different class series/occupational category.

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

(((c))) (d) The employer or the department determines good and sufficient reason exists.

[Statutory Authority: Chapter 41.06 RCW. 04-18-114, 357-46-135, filed 9/1/04, effective 7/1/05.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 05-01-184, filed 12/21/04, effective 7/1/05)

WAC 357-46-140   What is the notice requirement when an individual's name has been removed from an internal or statewide layoff list?   An individual whose name has been removed from an internal or statewide layoff list in accordance with WAC 357-46-135 (2)(b), (2)(c), and (2)(d) 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. Only individuals who have had their name removed under the provisions of WAC 357-46-135 (2)(b), (2)(c), and (2)(d) have the right to request a review of the removal.

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.

[Statutory Authority: Chapter 41.06 RCW. 05-01-184, 357-46-140, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-16-042, filed 7/27/05, effective 9/1/05)

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?   (1) ((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 individual is not in agreement with the results of the employer's review, he/she may request a director's review of the removal. If the department is responsible for maintaining the layoff list, requests for review of removal from a layoff list must be made to the director.)) Requests for review of removal from a layoff list must be made to the employer when:

(a) The removal is based on the employer's determination that good and sufficient reason exists under the provisions of WAC 357-46-135 (2)(d); or

(b) The employer is responsible for maintaining the layoff list and removed the individual for a reason listed in WAC 357-46-135 (2)(b) or (2)(c).

If the individual is not in agreement with the results of the employer's review, he/she may request a director's review of the removal.

(2) Requests for review of removal from a layoff list must be made to the director when:

(a) The removal is based on the department's determination that good and sufficient reason exists under the provisions of WAC 357-46-135 (2)(d);

(b) The department is responsible for maintaining the layoff list and removed the individual for a reason listed in WAC 357-46-135 (2)(b) or (2)(c); or

(c) The individual is not in agreement with the results of the employer's review of the removal.

(3) The request for a review must be received at the employer's office within twenty (20) calendar days or the director's office within ((twenty (20))) thirty (30) calendar days following notice of the action for which a review is requested.

[Statutory Authority: Chapter 41.06 RCW. 05-16-042, 357-46-145, filed 7/27/05, effective 9/1/05; 04-18-114, 357-46-145, filed 9/1/04, effective 7/1/05.]


NEW SECTION
WAC 357-16-157   Is an eligible's name removed from applicant and/or candidates pools when he/she is appointed to a position?   An eligible's name is removed from the applicant and/or candidate pool for the class to which he/she is appointed and all lower classes in the same class series/occupational category.

[]


AMENDATORY SECTION(Amending WSR 05-01-200, filed 12/21/04, effective 7/1/05)

WAC 357-16-160   ((How must an employer notify an applicant or candidate who has been removed from an applicant or candidate pool?)) Must an applicant or candidate who has been removed for good and sufficient reason per WAC 357-16-155 be notified of the removal?   ((An)) When an applicant or candidate is removed from an applicant or candidate pool for good and sufficient reason per WAC 357-16-155, the employer or the department must notify ((an)) the applicant or candidate ((who has been removed from an applicant or candidate pool)) at the time of the removal. The notice must be in writing and specify the reason for the removal. The notice must explain the right to request a review of the removal under the provisions of WAC 357-16-170, 357-16-175 and 357-16-180. 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.

[Statutory Authority: Chapter 41.06 RCW. 05-01-200, 357-16-160, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-01-187, filed 12/21/04, effective 7/1/05)

WAC 357-16-170   Can an applicant or candidate request a review of ((his/her examination results or)) the removal of his/her name from an applicant or candidate pool?   An applicant or candidate may request a review of ((his/her examination results or)) the removal of his/her name from an applicant or candidate pool when the removal is due to good and sufficient reason under the provisions of WAC 357-16-155.

[Statutory Authority: Chapter 41.06 RCW. 05-01-187, 357-16-170, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-01-187, filed 12/21/04, effective 7/1/05)

WAC 357-16-175   To whom and by when must an applicant or candidate request a review of the ((results of an examination or)) removal from an applicant or candidate pool?   If the employer is responsible for the ((assessment process)) removal, the request((s)) for a review((s)) under the provisions of WAC 357-16-170 must be made to the employer. If the department is responsible for the ((assessment process)) removal, the request((s)) for a review((s)) under the provisions of WAC 357-16-170 must be made to the director.

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

[Statutory Authority: Chapter 41.06 RCW. 05-01-187, 357-16-175, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-01-188, filed 12/21/04, effective 7/1/05)

WAC 357-16-177   What procedure must an employer use to review ((an applicant's or candidate's examination results or)) the removal of ((his/her)) an applicant's or candidate's name from an applicant or candidate pool under the provisions of WAC 357-16-170?   Each employer must develop a review procedure that specifies the procedure the employer will use to review an applicant's or candidate's ((examination results or)) name removal from a pool. The procedure must minimally specify that the review will be conducted by a representative of the employer that was not involved in the action under review.

[Statutory Authority: Chapter 41.06 RCW. 05-01-188, 357-16-177, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-19-011, filed 9/8/05, effective 10/10/05)

WAC 357-49-010   For what actions may an individual request a director's review?   (1) If the department is responsible for ((the assessment process)) the removal of an applicant's or candidate's name from a pool as specified in WAC 357-16-175, an applicant or candidate may request a director's review of ((his/her examination results or)) the removal ((of his/her name from an applicant or candidate pool as specified in WAC 357-16-175)). Director review decisions regarding the removal of an individual's name from an applicant or candidate pool ((or an individual's examination results)) are final and not subject to further review or appeal.

(2) An individual may request a director's review of the removal of his/her name from a layoff list as specified in WAC 357-46-145.

(3) An employee may request a director's review of the following:

(a) Allocation or reallocation per WAC 357-13-080; or

(b) Performance evaluation process or procedure per WAC 357-37-080.

(4) In addition to the subject listed in section (2) of this rule, an employee ((may request a director's review of an alleged)) who has been adversely affected by a violation of the civil service laws or rules may request a director's review within thirty calendar days of the date the employee could reasonably be expected to have knowledge of the action giving rise to a law or rule violation claim or the stated effective date, whichever is later. An employee may not request a director's review of:

(a) Allegations arising from the development and adoption of the classification plan under the provisions of WAC 357-10-020;

(b) An alleged violation of civil service laws or rules pertaining to layoff, except for removal of his/her name from a layoff list as provided in subsection 2 of this section; or

(c) The actions of reduction, dismissal, suspension, demotion or separation.

(5) An individual may request the director review his/her request for remedial action per WAC 357-19-430 or 357-19-450. Requests for remedial action must be received within thirty calendar days of the date the individual could reasonably be expected to have knowledge of the action giving rise to violation of the nonpermanent appointment or temporary appointment rules.

[Statutory Authority: Chapter 41.06 RCW. 05-19-011, 357-49-010, filed 9/8/05, effective 10/10/05; 05-12-082, 357-49-010, filed 5/27/05, effective 7/1/05; 05-01-182, 357-49-010, filed 12/21/04, effective 7/1/05.]