WSR 09-11-063

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed May 14, 2009, 3:42 p.m. , effective June 16, 2009 ]


Effective Date of Rule: June 16, 2009.

Purpose: The purpose of these rule changes is to clarify layoff rights of Washington general service and Washington management service (WMS) employees. The rule changes are in regard to: Layoff list eligibility, general government transition pool program eligibility, calculation of part-time employees' seniority dates, WMS rehire from layoff lists, temporary layoff, and WMS review periods. In addition, these proposed changes will eliminate any reference to the term "occupational category" in TITLE 357 WAC and replace it with "class series."

Citation of Existing Rules Affected by this Order: Repealing WAC 357-01-215; new section WAC 357-58-477; and amending WAC 357-46-070, 357-46-080, 357-01-080, 357-01-135, 357-16-155, 357-16-157, 357-46-035, 357-46-135, 357-46-055, 357-46-095, 357-46-058, 357-58-305, 354-58-310, 357-46-110, 357-46-120, 357-31-355, and 357-46-067.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Adopted under notice filed as WSR 09-08-099 on March 31, 2009.

Changes Other than Editing from Proposed to Adopted Version: WAC 357-46-035(2) clarified the intent of comparable or less than comparable.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 17, Repealed 1.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 17, Repealed 1.

Date Adopted: May 14, 2009.

Eva N. Santos

Director


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

WAC 357-46-070   Which employees are eligible to have their name placed on an employer's internal layoff list?   (1) Permanent employees of the employer who satisfy the following criteria must have their name placed on the employer's internal layoff list if the employee exercises this option within the two-year eligibility period:

(a) Employees who are laid off or have been notified in writing 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)) class series. Permanent status is not required for the lower classes in the ((occupational category/class series)) class series. For purposes of this subsection "employees" includes Washington management service (WMS) employees who are laid off or have been notified by the employer that they are scheduled to be laid off and who have held permanent status in Washington general service during the current period of unbroken service. WMS employees only have layoff list rights to classes which the highest step of the salary range is equal to or below the WMS salary at the time of layoff or notification of layoff.

(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)) class series. Permanent status is not required for the lower classes in the ((occupational category)) class series. Washington management service (WMS) employees who accept a voluntary demotion in lieu of layoff are eligible to be on the internal layoff list for classes in which they held permanent status during the current period of unbroken service. WMS employees only have layoff list rights to classes which the highest step of the salary range is equal to or below the WMS salary at the time of the demotion.

(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)) class series. Permanent status is not required for the lower classes in the ((occupational category)) class series.

(d) Employees who have not successfully completed a trial service period and are placed in a nonpermanent 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.

[Statutory Authority: Chapter 41.06 RCW. 04-18-114, 357-46-070, filed 9/1/04, effective 7/1/05.]


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

WAC 357-46-080   Which employees are eligible to have their name placed on an employer's statewide layoff list?   (1) Permanent employees who satisfy the following criteria must have their name placed on the statewide layoff list for other employers if the employee exercises this option within the two-year eligibility period:

(a) Employees who are laid off or notified in writing 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)) class series. Permanent status is not required in the lower classes in the ((occupational category/class series)) class series. For purposes of this subsection "employees" includes Washington management service (WMS) employees who are laid off or have been notified by the employer that they are scheduled to be laid off and who have held permanent status in Washington general service during the current period of unbroken service. WMS employees only have layoff list rights to classes which the highest step of the salary range is equal to or below the WMS salary at the time of layoff or notification of layoff.

(b) Employees who accept a voluntary demotion in-lieu of layoff are eligible to be on the statewide layoff 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)) class series. Permanent status is not required for the lower classes in the ((occupational category/class series)) class series. Washington management service (WMS) employees who accept a voluntary demotion in lieu of layoff are eligible to be on the statewide layoff list for classes in which they held permanent status during the current period of unbroken service. WMS employees only have layoff list rights to classes which the highest step of the salary range is equal to or below the WMS salary at the time of the demotion.

(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)) class series. Permanent status is not required for the lower classes in the ((occupational category/class series)) 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.

[Statutory Authority: Chapter 41.06 RCW. 04-18-114, 357-46-080, filed 9/1/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-01-204, filed 12/21/04, effective 7/1/05)

WAC 357-01-080   ((Class series/occupational category.)) Class series.   A grouping of job functions having similar purpose and knowledge requirements((.)), but different levels of difficulty and responsibility.

[Statutory Authority: Chapter 41.06 RCW. 05-01-204, 357-01-080, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-01-204, filed 12/21/04, effective 7/1/05)

WAC 357-01-135   Elevation.   An employer-initiated action that moves an employee to a position in either:

(1) A higher class in which the employee held permanent status prior to a demotion; or

(2) A class in the same ((class series/occupational category)) class series which is between the current class and the class from which the employee demoted.

[Statutory Authority: Chapter 41.06 RCW. 05-01-204, 357-01-135, filed 12/21/04, effective 7/1/05.]


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

WAC 357-16-155   Can an eligible's name be removed from an applicant or candidate pool for a class or all classes in ((an occupational category/class series)) a class series?   An employer or the department may disqualify an individual by removing the individual's name from an applicant and/or candidate pool for a class or all classes in ((an occupational category/class series)) a class series at anytime for good and sufficient reason.

[Statutory Authority: Chapter 41.06 RCW. 05-01-200, 357-16-155, filed 12/21/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 06-03-071, filed 1/12/06, effective 2/13/06)

WAC 357-16-157   Is an eligible's name removed from applicant and/or candidate 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)) class series.

[Statutory Authority: Chapter 41.06 RCW. 06-03-071, 357-16-157, filed 1/12/06, effective 2/13/06.]


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

WAC 357-46-035   Layoff option.   (1) What option does a permanent employee have to take a position when the employee is scheduled for layoff?

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)) a 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 from which 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 comparable or less than comparable; and

(iii) (iv) 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.

[Statutory Authority: Chapter 41.06 RCW. 04-18-114, 357-46-035, filed 9/1/04, effective 7/1/05.]

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.
AMENDATORY SECTION(Amending WSR 06-15-064, filed 7/13/06, effective 8/14/06)

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 permanent 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)) class series.

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

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

(d) The employer determines good and sufficient reason exists.

[Statutory Authority: Chapter 41.06 RCW. 06-15-064, 357-46-135, filed 7/13/06, effective 8/14/06; 06-03-071, 357-46-135, filed 1/12/06, effective 2/13/06; 04-18-114, 357-46-135, filed 9/1/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-08-135, filed 4/6/05, effective 7/1/05)

WAC 357-46-055   How is a general government employee's seniority date determined?   (1) For a full-time general government employee, the seniority date is the employee's most recent date of hire into state service as adjusted for any period of leave without pay which exceeds fifteen consecutive calendar days except when the leave without pay is taken for:

(a) Military leave as provided in WAC 357-31-370;

(b) Compensable work-related injury or illness leave;

(c) Government service leave not to exceed two years and one month;

(d) Educational leave, contingent upon successful completion of the coursework; and/or

(e) Reducing the effects of layoff.

(f) When an employee is on leave without pay for more than fifteen consecutive calendar days and the absence is not due to one of the reasons listed above, the employee's seniority date must be moved forward in an amount equal to the number of calendar days on leave without pay.

(2) For a part-time general government employee, the seniority date is calculated by determining the number of actual hours worked and/or in paid status((.)), excluding compensatory time off. Actual hours worked includes overtime hours regardless of whether or not the employee receives monetary payment or compensatory time for the hours worked. Time spent in leave without pay status is not credited unless the leave without pay is taken for:

(a) Military leave as provided in WAC 357-31-370;

(b) Compensable work-related injury or illness leave;

(c) Government service leave not to exceed two years and one month;

(d) Educational leave, contingent upon successful completion of the coursework; and/or

(e) Reducing the effects of layoff.

[Statutory Authority: Chapter 41.06 RCW. 05-08-135, 357-46-055, filed 4/6/05, 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.
AMENDATORY SECTION(Amending WSR 05-21-058, filed 10/13/05, effective 11/15/05)

WAC 357-46-095   Who is eligible for the general government transition pool program?   The following individuals are eligible to participate in the general government transition pool program:

(1) All general government permanent employees separated by layoff or notified by their employer that they are at risk of layoff((;)). This includes Washington management service permanent employees who are separated by layoff or notified by their employer that they are at risk of layoff;

(2) All general government permanent employees who are reverted and not returned to a permanent position in the class in which the employee last held permanent status;

(3) Employees who are eligible to participate in the return-to-work initiative program in accordance with chapter 357-19 WAC;

(4) 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;

(5) 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;

(6) General government employee business unit members whose contract has expired or been terminated; and

(7) Permanent Washington management service employees who accept acting appointments and who do not return on the agreed upon date in accordance with WAC 357-58-275.

[Statutory Authority: Chapter 41.06 RCW. 05-21-058, 357-46-095, filed 10/13/05, effective 11/15/05; 05-12-077, 357-46-095, filed 5/27/05, effective 7/1/05; 04-18-114, 357-46-095, 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.
AMENDATORY SECTION(Amending WSR 05-12-073, filed 5/27/05, effective 7/1/05)

WAC 357-46-058   Is an employee who is rehired following layoff considered to have had a break in state service?   (1) An employee laid off in accordance with the provisions of WAC 357-46-010 or WAC 357-58-445 is not considered to have had a break in continuous state service if within two years of separation the employee is appointed to a position:

(a) From a layoff list or the general government transition pool; or

(b) As a promotional candidate in accordance with the employer's promotional policy.

(2) Upon appointment, the employee is reinstated with the seniority and unbroken service the employee had at the time of layoff. For a general government employee, the time spent off the payroll due to layoff is treated like leave without pay and seniority and unbroken service dates must be adjusted in accordance with WAC 357-31-345 and 357-46-055 respectively.

[Statutory Authority: Chapter 41.06 RCW. 05-12-073, 357-46-058, filed 5/27/05, 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.
NEW SECTION
WAC 357-58-477   Is a WMS employee who is rehired following layoff considered to have had a break in state service?   (1) An employee laid off in accordance with the provisions of WAC 357-58-445 is not considered to have had a break in continuous state service if within two years of separation the employee is appointed to a position:

(a) From the general government transition pool; or

(b) As a promotional candidate in accordance with the employer's promotional policy.

(2) Upon appointment, the employee is reinstated with the seniority and unbroken service the employee had at the time of layoff. Time spent off the payroll due to layoff is treated like leave without pay and seniority and unbroken service dates must be adjusted in accordance with WAC 357-31-345 and 357-46-055 respectively.

[]


AMENDATORY SECTION(Amending WSR 05-12-070, filed 5/27/05, effective 7/1/05)

WAC 357-58-305   When does a WMS employee attain permanent status?   Upon successful completion of the review period, the employee will attain permanent status in the position. If a review period is not required in TITLE 357 WAC and the employer chooses to not require a review period the employee will attain permanent status upon appointment.

[Statutory Authority: Chapter 41.06 RCW. 05-12-070, 357-58-305, filed 5/27/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-070, filed 5/27/05, effective 7/1/05)

WAC 357-58-310   When may a WMS employee ((who transfers or voluntarily demotes)) be required to serve a WMS review period?   An appointing authority may require an employee who transfers, ((or)) voluntarily demotes, or accepts a layoff option to another WMS position to serve a review period.

[Statutory Authority: Chapter 41.06 RCW. 05-12-070, 357-58-310, filed 5/27/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-077, filed 5/27/05, effective 7/1/05)

WAC 357-46-110   Must employees who are appointed to a position through the layoff process serve any type of review period?   An employer may require a six-month transition review period when an employee is appointed to a position as a layoff option or is appointed from the internal or statewide layoff list or the general government transition pool. (See WAC 357-46-115 for exceptions to this rule.) The transition review period may be extended for leave without pay in accordance with WAC 357-31-355.

[Statutory Authority: Chapter 41.06 RCW. 05-12-077, 357-46-110, filed 5/27/05, effective 7/1/05; 04-18-114, 357-46-110, filed 9/1/04, effective 7/1/05.]


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

WAC 357-46-120   What are the employer's obligations when the employer requires a transition review period?   (1) When an employer requires a transition review period ((is required for a position)), the employer must provide the employee with written notice of the transition review period.

(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.

[Statutory Authority: Chapter 41.06 RCW. 04-18-114, 357-46-120, filed 9/1/04, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-08-138, filed 4/6/05, effective 7/1/05)

WAC 357-31-355   How does leave without pay affect the duration of an employee's probationary period, ((or)) trial service period or transition review period?   If an employee uses leave without pay for an entire workshift while serving a probationary period, ((or)) trial service period or transition review period, the probationary period, ((or)) trial service period or transition review period is extended by one work day for each workshift of leave without pay.

[Statutory Authority: Chapter 41.06 RCW. 05-08-138, 357-31-355, filed 4/6/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-074, filed 5/27/05, effective 7/1/05)

WAC 357-46-067   What is an employee's status during temporary layoff?   (1) ((Hours not worked due to temporary layoff are not treated as leave without pay, therefore:)) The following applies during a temporary layoff:

(a) An employee's anniversary date, seniority, or unbroken service date is not adjusted for periods of time spent on temporary layoff; and

(b) An employee continues to accrue vacation and sick leave in accordance with chapter 357-31 WAC((.)); and

(c) The duration of an employee's probationary period or trial service period shall not be extended for periods of time spent on temporary layoff.

(2) An employee((s)) who is temporarily laid off is not entitled to:

(a) Layoff rights, including the ability to bump any other position or be placed on the employer's internal or statewide layoff list;

(b) Payment for his/her vacation leave balance; and

(c) Use of his/her accrued vacation leave for hours the employee is not scheduled to work if the temporary layoff was due to lack of funds.

(3) If the temporary layoff was not due to lack of funds, an employer may allow an employee to use accrued vacation leave in lieu of temporary layoff.

[Statutory Authority: Chapter 41.06 RCW. 05-12-074, 357-46-067, filed 5/27/05, effective 7/1/05.]

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.
REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 357-01-215 Occupational category/class series.

Washington State Code Reviser's Office