Original Notice.

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

     Title of Rule and Other Identifying Information: WAC 357-46-020 What must be included in the employer's layoff procedure?, 357-46-035 Layoff option, and 357-46-080 Which employees are eligible to have their name placed on an employer's statewide layoff list?

     Hearing Location(s): Department of Personnel, 521 Capitol Way South, Olympia, WA, on May 13, 2010, at 8:30 a.m.

     Date of Intended Adoption: May 13, 2010.

     Submit Written Comments to: Connie Goff, Department of Personnel, P.O. Box 47500, e-mail connieg@dop.wa.gov, fax (360) 586-4694, by May 5, 2010. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

     Assistance for Persons with Disabilities: Contact department of personnel by May 5, 2010, TTY (360) 753-4107 or (360) 586-8260.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed change to WAC 357-46-035(2) is housekeeping in nature. The proposed change to subsection (4) will clarify that general government employees have layoff option rights to all classes they have held permanent status in regardless of any breaks in service as provided in subsection (1) of the rule. This is to emphasize that the criteria in subsection (1) must be met.

     The proposed changes to WAC 357-46-080 are an attempt to make this rule easier to read. The only language being added is the last two sentences of subsection (2) which say that general government employees have rights to the statewide layoff list for classes in which they held permanent status which are at a higher salary range (than the class the employee is being laid off from) and lower classes in the same class series and higher education (HE) employees do not have access to the statewide layoff list for higher level classes unless the HE employer's layoff procedure allows access.

     The proposed change to WAC 357-46-020 is housekeeping. This is in line with the language that was added to WAC 357-46-080 effective September 16, 2009, regarding HE employers addressing in their layoff procedure statewide layoff list rights when the employee has had a break in state service.

     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.

     Name of Agency Personnel Responsible for Drafting: Kristie Wilson, 521 Capitol Way South, (360) 664-6408; Implementation and Enforcement: Department of personnel.

     No small business economic impact statement has been prepared under chapter 19.85 RCW.

     A cost-benefit analysis is not required under RCW 34.05.328.

April 7, 2010

Eva N. Santos

Director

OTS-3051.2

AMENDATORY SECTION(Amending WSR 07-11-092, filed 5/16/07, effective 7/1/07)

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.

     (10) Higher education employers address in their layoff procedure whether or not employees have layoff list rights to classes they held permanent status in prior to any breaks in state service.

[Statutory Authority: Chapter 41.06 RCW. 07-11-092, § 357-46-020, filed 5/16/07, effective 7/1/07; 04-18-114, § 357-46-020, filed 9/1/04, effective 7/1/05.]

OTS-3048.1

AMENDATORY SECTION(Amending WSR 09-17-064, filed 8/13/09, effective 9/16/09)

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 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)) (1) of this section?

     (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;

     (ii) The position is vacant or held by a probationary employee or an employee in a nonpermanent appointment;

     (iii) The position is comparable or less than comparable; and

     (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.

     (4) Does an employee have layoff option rights as provided in subsection (1) of this section to classifications the employee held permanent status in prior to any breaks in state service?

     General government employees have layoff option rights as provided in subsection (1) of this section to ((all)) classifications the employee has held permanent status in regardless of any breaks in state service.

     Higher education employers must address in their layoff procedure whether or not employees will be given layoff options to classes they held permanent status in prior to any breaks in state service.

[Statutory Authority: Chapter 41.06 RCW. 09-17-064, § 357-46-035, filed 8/13/09, effective 9/16/09; 09-11-063, § 357-46-035, filed 5/14/09, effective 6/16/09; 04-18-114, § 357-46-035, filed 9/1/04, effective 7/1/05.]

OTS-3052.2

AMENDATORY SECTION(Amending WSR 09-17-063, filed 8/13/09, effective 9/16/09)

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 at the same or lower salary range and lower classes in the same class series. Permanent status is not required in the lower classes in the 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. 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 class series. Permanent status is not required for the lower classes in the 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. 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 class series. Permanent status is not required for the lower classes in the 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.)) Laid off or notified in writing by the employer they are scheduled to be laid off;

     (b) Accepted a voluntary demotion in lieu of layoff; or

     (c) Accepted less-than-comparable positions at the time of layoff.

     For purposes of this subsection "employees" includes Washington management service (WMS) employees who have held permanent status in Washington general service.

     (2) All employees who meet the criteria in subsection (1) of this section are eligible to be on the statewide layoff list for classes in which they held permanent status at the same or lower salary range and lower classes in the same class series. Permanent status is not required in the lower classes in the same class series. General government employees have statewide layoff list rights to classes in which they held permanent status which are at a higher salary range and lower classes in the same class series. Higher education employees do not have access to the statewide layoff list for higher level classes unless the employer's layoff procedure allows.

     (3) WMS employees only have layoff list rights to classes in 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, or at the time of demotion.

     (((3))) (4) General government employees have layoff list rights to all classifications the employee has held permanent status in regardless of any breaks in state service.

     (5) Higher education employers must address in their layoff procedure whether or not employees will be given layoff list rights to classes they held permanent status in prior to any breaks in state service.

     (6) 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. 09-17-063, § 357-46-080, filed 8/13/09, effective 9/16/09; 09-11-063, § 357-46-080, filed 5/14/09, effective 6/16/09; 04-18-114, § 357-46-080, filed 9/1/04, effective 7/1/05.]

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