WSR 07-11-092

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed May 16, 2007, 10:17 a.m. , effective July 1, 2007 ]


Effective Date of Rule: July 1, 2007.

Purpose: These changes clean up the employee business unit rules.

Citation of Existing Rules Affected by this Order: Repealing WAC 357-43-010, 357-43-055, 357-43-060, 357-43-065, 357-43-070, 357-43-075, 357-43-080, 357-43-085, 357-43-095, 357-43-100, 357-43-105, and 357-43-120; and amending WAC 357-43-001, 357-43-007, 357-43-008, 357-43-115, 357-46-012, 357-46-020, and 357-58-065.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Adopted under notice filed as WSR 07-08-034 on March 27, 2007.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 7, Repealed 12.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 7, Repealed 12.

Date Adopted: May 15, 2007

Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 05-01-193, filed 12/21/04, effective 7/1/05)

WAC 357-43-001   What definitions apply to this chapter of the civil service rules?   The following definitions apply to chapter 357-43 WAC:

(1) Appointing authority: An individual lawfully authorized to appoint, transfer, layoff, reduce, dismiss, suspend, or demote employees.

(((2) Competitive contracting: The process by which classified employees compete with businesses, individuals, nonprofit organizations, or other entities for the performance of services those employees have customarily and historically performed.))

(((3))) (2) Contract: A formal and binding agreement or an amendment to an agreement between an employer and an employee business unit for performing services as defined in the competitive contracting solicitation.

(((4) Displaced employee: A classified employee whose position or work would be eliminated, resulting in the employee being laid off or assigned to a different job classification, as a result of an award via the competitive contracting process.))

(((5))) (3) Employee business unit: A group of employees who perform services for which an employer proposes to competitively contract and who:

(a) Notify the agency of their intent to submit a bid for the performance of those services through competitive contracting; or

(b) Receive award of a contract from the employer as a result of being a successful bidder.

(((6))) (4) Employee business unit member: A classified employee working under the provisions of chapter 357-43 WAC.

(((7))) (5) Employer: A state agency, an institution of higher education, or a related higher education board.

[Statutory Authority: Chapter 41.06 RCW. 05-01-193, 357-43-001, filed 12/21/04, effective 7/1/05.]


NEW SECTION
WAC 357-43-003   Can EBU members choose which civil service rules will apply to them?   EBU members may choose to opt-out of civil service rules that are not required in statute.

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AMENDATORY SECTION(Amending WSR 05-01-185, filed 12/21/04, effective 7/1/05)

WAC 357-43-007   What provisions apply when an employee's position is eliminated because ((of)) the employer has awarded a contract through the competitive contracting process as described in Tile 236 WAC?   WAC 357-46-012 governs layoff actions resulting from the competitive contracting (([contracting])) process as described in TITLE 236 WAC.

[Statutory Authority: Chapter 41.06 RCW. 05-01-185, 357-43-007, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-19-003, filed 9/8/05, effective 10/10/05)

WAC 357-43-008   What happens if an ((displaced)) employee chooses to ((be removed from)) not be a part of the employee business unit ((before the effective date of a contract that is awarded to the employee business unit))?   When an ((displaced)) employee chooses to ((be removed from an employee business unit prior to the effective date of the contract that is awarded to the employee business unit)) not be a part of the employee business unit, the following applies:

(1) If the ((displaced)) employee chooses to ((be removed)) not be a part of the employee business unit before the employer's ((notifies the employee business unit)) notification of the intent to award the contract to the employee business unit (as described in WAC 236-51-600), the ((displaced)) employee has layoff rights in accordance with WAC 357-46-012.

(2) If the ((displaced)) employee chooses to ((be removed)) not be a part of the employee business unit after the employer's ((notifies the employee business unit)) notification of the intent to award the contract to the employee business unit (as described in WAC 236-51-600), the ((displaced)) employee has no layoff rights under chapter 357-46 WAC and is considered to have resigned when his/her position is eliminated.

[Statutory Authority: Chapter 41.06 RCW. 05-19-003, 357-43-008, filed 9/8/05, effective 10/10/05.]


AMENDATORY SECTION(Amending WSR 05-01-193, filed 12/21/04, effective 7/1/05)

WAC 357-43-115   ((What return rights does a former employee business unit member have following appointment to an exempt position?)) If an employee business unit member accepts an appointment to an exempt position, what are the employee's return rights?   A former employee business unit member who was appointed to an exempt position from the employee business unit has return rights provided in RCW 41.06.070.

[Statutory Authority: Chapter 41.06 RCW. 05-01-193, 357-43-115, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-19-004, filed 9/8/04 [9/8/05], effective 10/10/05)

WAC 357-46-012   Following the award of a contract under the competitive contracting process (as described in TITLE 236 WAC), how does an employer layoff ((displaced)) employees ((as defined by WAC 357-43-001)) whose positions are being eliminated due to the awarded contract?   (1) If an employee business unit as defined by WAC 357-43-001 is not awarded the contract, all ((displaced)) employees ((as defined by WAC 357-43-001)) whose positions are being eliminated are subject to the employer's layoff procedure when the positions are eliminated or reduced.

(2) ((Displaced employees as defined by WAC 357-43-001)) Employees whose positions are being eliminated who are not part of the employee business unit awarded the contract are subject to the employer's layoff procedure when the employees' positions are eliminated or reduced. (See WAC 357-43-008 for what happens if an ((displaced)) employee chooses to ((be removed from an)) not be a part of the employee business unit.)

(((3) Displaced employees as defined by WAC 357-43-001 who are part of the employee business unit awarded the contract become an employee business unit member on the effective date of the contract. The layoff rights of employee business unit members are determined by the employee business unit's layoff procedure as provided in WAC 357-43-100. Employee business unit members do not have layoff rights under chapter 357-46 WAC.))

[Statutory Authority: Chapter 41.06 RCW. 05-19-004, 357-46-012, filed 9/8/05, effective 10/10/05.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 04-18-114, filed 9/1/04, effective 7/1/05)

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, employee business units, 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 time frame 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.

[Statutory Authority: Chapter 41.06 RCW. 04-18-114, 357-46-020, filed 9/1/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-21-060, filed 10/13/05, effective 11/15/05)

WAC 357-58-065   Definitions for WMS.   The following definitions apply to chapter 357-58 WAC:

(1) Competencies. Those measurable or observable knowledge, skills, abilities, and behaviors critical to success in a key job role or function.

(2) Dismissal. The termination of an individual's employment for disciplinary purposes.

(3) Employee. An individual working in the classified service. Employee business unit members are ((covered by chapter 357-43 WAC and)) defined in WAC 357-43-001.

(4) Evaluation points. Evaluation points are the points resulting from an evaluation of a position using the managerial job value assessment chart.

(5) Layoff unit. A clearly identified structure within an employer's organization within which layoff options are determined in accordance with the employer's layoff procedure. Layoff units may be a series of progressively larger units within an employer's organization.

(6) Management bands. Management bands are a series of management levels included in the Washington management service. Placement in a band reflects the nature of management, decision-making environment and policy impact, and scope of management accountability and control assigned to the position.

(7) Performance management confirmation. Approval granted by the director of the department of personnel to an employer allowing the employer to link individual employee performance to compensation or layoff decisions.

(8) Premium. Pay added to an employee's base salary on a contingent basis in recognition of special requirements, conditions, or circumstances associated with the job.

(9) Reassignment. A reassignment is an employer initiated movement of:

(a) a WMS employee from one position to a different position within WMS with the same salary standard and/or evaluation points; or

(b) a WMS position and its incumbent from one section, department, or geographical location to another section, department, or geographical location.

(10) Review period. The review period is a period of time that allows the employer an opportunity to ensure the WMS employee meets the requirements and performance standards of the position.

(11) Salary standard. Within a management band a salary standard is the maximum dollar amount assigned to a position in those agencies that use a salary standard in addition to, or in place of, evaluation points.

(12) Separation. Separation from state employment for nondisciplinary purposes.

(13) Suspension. An absence without pay for disciplinary purposes.

(14) Transfer. A WMS transfer is an employee initiated movement from one position to a different position with the same salary standard and/or same evaluation points.

(15) Washington general service (WGS). Washington general service is the system of personnel administration that applies to classified employees or positions under the jurisdiction of chapter 41.06 RCW which do not meet the definition of manager found in RCW 41.06.022.

(16) Washington management service (WMS). Washington management service is the system of personnel administration that applies to classified managerial employees or positions under the jurisdiction of RCW 41.06.022 (([and])) and 41.06.500.

[Statutory Authority: Chapter 41.06 RCW. 05-21-060, 357-58-065, filed 10/13/05, effective 11/15/05; 05-12-068, 357-58-065, filed 5/27/05, effective 7/1/05.]


REPEALER

The following sections of the Washington Administrative Code is repealed:

WAC 357-43-010 Do the other rules in TITLE 357 WAC governing classified employees apply to employee business unit members?
WAC 357-43-055 Can employee business unit members accrue vacation leave?
WAC 357-43-060 Can employee business unit members accrue sick leave?
WAC 357-43-065 Can employee business unit members cash out sick leave?
WAC 357-43-070 Are employee business unit members eligible for legal holidays?
WAC 357-43-075 Are employee business unit members eligible to receive a personal holiday?
WAC 357-43-080 Are employee business unit members eligible to participate in the employer's shared leave program?
WAC 357-43-085 Are employee business unit members eligible to receive military leave?
WAC 357-43-095 Must an employee business unit have a layoff procedure?
WAC 357-43-100 What layoff rights must be included in the employee business unit's layoff procedure?
WAC 357-43-105 When is a general government employee business unit member eligible for placement in the general government transition pool?
WAC 357-43-120 Can EBU members receive financial incentives for any cost savings that result from completing performance requirements for less cost or better efficiency than what was anticipated in the agreement with the EBU?

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.

Washington State Code Reviser's Office