Original Notice.

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

Title of Rule: 359-40-010 Reasons for layoff, 359-40-020 Seniority, 359-40-050 Layoff procedure, 359-40-060 Alternate review period, 359-14-010 Maintenance of eligible lists, 359-14-020 Name removal, 359-14-030 Referrals, 359-14-050 Noncompetitive eligible list, 359-14-070 Combined eligible lists, 359-14-080 Specialized qualifications, 359-14-100 Eligible list designations, and 359-14-130 Internal procedure for transfer, lateral moves, and voluntary demotion.

Purpose: These rules pertain to layoff, seniority, layoff procedure, alternate review period, maintenance of eligible lists, name removal, referrals, noncompetitive eligible list, combined eligible lists; specialized qualifications, eligible list designations, and internal procedure for transfer, lateral moves, and voluntary demotions.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Statute Being Implemented: RCW 41.06.150.

Summary: These new rules are a result of the taskforce on layoff merger rules.

Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.

Name of Proponent: Department of Personnel, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: These new rules pertain to layoff, seniority, layoff procedure, alternate review period, maintenance of eligible lists, name removal, referrals, noncompetitive eligible list, combined eligible lists; specialized qualifications, eligible list designations, and internal procedure for transfer, lateral moves, and voluntary demotions. The above new rule proposals are a result of the taskforce on layoff merger rules.

Proposal Changes the Following Existing Rules: See above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. These rules relate to internal government operations that are not subject to violation by a nongovernmental party. Therefore, pursuant to RCW 34.05.328 [(5)](b)(ii), section 201 does not apply.

Hearing Location: Department of Personnel, 521 Capitol Way South, Olympia, WA, on March 9, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Department of Personnel by March 2, 2000, TDD (360) 753-4107, or (360) 664-6280.

Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, fax (360) 586-4694, by March 7, 2000.

Date of Intended Adoption: March 9, 2000.

January 24, 2000

Dennis Karras

Secretary

ELIGIBLE LISTS AND REFERRALS
NEW SECTION
WAC 359-14-010
Maintenance of eligible lists.

(1) The establishment, maintenance, adequacy of, and referral from all eligible lists shall be the responsibility of the director, director's designee, or the higher education institution's personnel officer.

(2) The directory may, as requested, designate agency personnel officers to act as agents of the Department of Personnel for the purposes of establishing and/or maintaining local eligible lists and referral of names from those eligible lists in accordance with these rules. The director shall develop necessary procedures for local eligible lists which include audit/periodic review provisions.

(3) The director shall be responsible for establishing periodic reviews of examination, selection and hiring activities within the agencies and higher education institutions.

(4) The director, director's designee, director's agency designee with local eligible list authority, and higher education institution's personnel officer has authority to:

(a) Add additional names to the eligible lists.

(b) Remove names from referrals and/or eligible lists.

(c) Cancel the entire eligible list when the class or examination has changed to the degree that the list would be invalid and notify all affected applicants of the cancellation.

(d) Combine eligible lists as provided in WAC 359-14-070.

(e) Determine when specialized qualifications are justified for a position as provided in WAC 359-14-080.

(5) Eligibility on an eligible list shall be measured from the date that the applicant's name is placed on the list, except for the layoff lists. An applicant's eligibility on the layoff lists shall be measured from the effective date of the qualifying action.

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The director, designee or higher education institution's personnel officer may remove an applicant's name from a referral and/or an eligible list for the following reasons. The applicant shall not have a review or appeal when the name removal is due to the reasons indicated in (1) below.

(1) Written notification of the removal of an applicant's name from a referral and/or an eligible list is not required when the applicant has:

(a) Requested removal in writing.

(b) Failed to respond within seven calendar days to a written inquiry relative to availability for an interview. The written inquiry will include the results of not responding.

(c) Failed to respond within ten calendar days to a written inquiry relative to availability for an eligible list. The written inquiry will include the results of not responding.

(d) Failed to notify the recruiting agency/personnel office of a change of address.

(e) Been removed from a list due to expiration of eligibility.

(2) The director, designee or the higher education institution's personnel officer may remove an applicant's name from a referral and/or an eligible list for good and sufficient reason, including when the applicant has waived consideration of appointment three times.

(a) The affected applicant shall be notified of the specific reasons for removal and advised of the right to request a review by the agency or higher education institution taking the action.

(b) The applicant's written request for review must be submitted within ten calendar days of notification of the removal.

(c) Within ten calendar days after receiving a request for a review, the agency or higher education institution shall provide the applicant with written notification of the decision to:

(i) Restore the applicant's name to the eligible list and/or referral; or

(ii) Refuse to restore the applicant's name to the eligible list and/or referral. The notice shall include the applicant's right of appeal to the Director of the Department of Personnel or director's designee, whose decision is final and binding.

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(1) Upon receipt of a written request, the director, designee or higher education institution's personnel officer shall refer the names of qualified applicants eligible for the position from the appropriate eligible lists. When it is necessary to use more than one eligible list to complete a referral, each eligible list must be exhausted before using the next eligible list.

(a) Referrals from eligible lists for filling classified vacancies shall be made in the order of priority listed below:

(i) Internal layoff list;

(ii) Statewide layoff list;

(iii) Internal promotional list;

(iv) System wide movement list; and

(v) Open competitive list.

(b) When a combined eligible list has been approved, referrals from eligible lists for filling vacancies shall be made in the order of priority listed below:

(i) Internal layoff list;

(ii) Statewide layoff list; and

(iii) Combined eligible list.

(2) All applicants' names on the internal layoff list are ranked and referred in descending order of seniority. When there are names on the internal layoff list, one name per vacancy plus those names whose seniority dates are tied shall be referred. All names on the internal layoff list shall be exhausted before using the next eligible list.

(3) All applicants' names on the statewide layoff list are ranked and referred in descending order of seniority. When there are names on the statewide layoff list, six more names than vacancies to be filled and those names whose seniority dates are tied for the seventh or last position shall be referred.

When sufficient names are not available on the statewide layoff list to complete a referral, the referral may be completed by adding names, including those whose scores are tied for the seventh or last position, only from the internal promotional list. However, fewer names on the statewide layoff list are a complete referral if there are no names on the internal promotional list. Names are referred in descending order of seniority from the statewide layoff list. Names from the internal promotional list are referred in descending order of score.

(4) Except as provided in (2) and (3) of this section, names on the eligible list shall be ranked and referred in descending order of examination score. The referral from an eligible list shall be six more names than there are vacancies to be filled and those whose scores are tied for the seventh or last position. If sufficient names are not available, the referral may be completed by adding applicants' names from the next eligible list.

(5) Up to three additional applicants' names plus those whose scores are tied for the last position, who meet the applicable affirmative action criteria, shall be referred from the eligible list when the following are met:

(a) an approved affirmative action program is utilized,

(b) the initial referral does not include at least three members of the group(s) for which there are established affirmative action goals, and

(c) the total referral of names under this subsection shall not exceed three, except for those whose scores are tied for the last referral position.

(6) When there are fewer names than constitute a complete referral for the class, the vacancy may be filled from an incomplete referral.

(7) When there is an incomplete referral for the class, the director or agency designee with local list authority or a personnel officer at a higher education institution may complete or supplement the referral from a related eligible list or referral if it is determined the related list or referral is sufficiently similar.

(8) When it is impractical to recruit to establish an eligible list for a class, the director, agency designee with local eligible list authority, or personnel officer at a higher education institution may:

(a) Substitute an eligible list for a related class if the classes are deemed to be sufficiently similar, or

(b) Request the use of an eligible list established for the class at another higher education institution or agency.

(9) Permanent employees referred from an eligible list for consideration of appointment shall be notified at the time of referral. Upon appointment, the employer shall advise those permanent employees referred but not appointed of the action taken.

(10) When a vacancy occurs, the hiring authority may appoint any referred applicant.

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(1) All classes shall be considered to be in the competitive service unless a class has been approved by the director to be in the noncompetitive service.

The noncompetitive service comprises those unskilled, seasonal and temporary classes or positions for which the director has determined it is not practical to develop eligible lists. Although the same selection procedures may be used as in the competitive service, the procedures need not be applied beyond the point of determining that an applicant achieves a passing score.

(2) Noncompetitive eligible lists shall contain the names of applicants who meet the minimum or desirable qualifications.

(3) Eligible veterans shall be granted examination and referral preference as provided in these rules and the state law.

(4) The director shall develop necessary procedures which include audit provisions for noncompetitive recruitments.

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(1) Combined eligible lists include the internal promotional list, system wide movement list, and open competitive list with all applicants ranked and referred in descending order of final examination score. Six more names than there are vacancies and those whose scores are tied for the seventh or last position shall be referred

(2) Except as provided in (3) below, combined lists may be approved by the director, designee, or higher education institution's personnel officer when:

(a) the exclusive representative has been notified when the position is in a collective bargaining unit,

(b) qualified candidates are not available on the internal and statewide layoff lists, and

(c) the request is in the best interest of the state.

(3) A higher education institution's personnel officer may combine specific lists for EEO-6 categories executive, administrative, managerial, and professional non-faculty. When doing so, the recruitment notice shall indicate combined lists are used and applicants shall be ranked and referred in order of the final examination score.

(4) Current permanent employees of the employing agency or higher education institution/related board shall have five percent credit added to their final passing examination scores when any combined eligible list is used. Former employees, who are eligible to apply promotionally after disability separation, of the agency or higher education institution shall have five percent credit added to their final passing examination scores when any combined eligible list is used.

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(1) An employing official may request specialized qualifications that are required for the successful performance of the duties of the position, and cannot be gained within a reasonable time.

(2) Specialized qualifications shall not exceed the amount of experience/training or level of education published in the class specification.

(3) Specialized qualifications based on gender shall be made consistent with a bona fide occupational qualification approved by the Human Rights Commission.

(4) If the director of personnel, designee, or higher education institution's personnel officer determines that the facts and reasons justify the request, the applicants with the highest final score(s) who have the specialized qualifications shall be referred.

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(1) Internal layoff list

(a) Employees shall have the following internal layoff list(s) rights:

(i) Employees who are laid off shall be placed on the internal layoff lists for classes in which they held permanent status at the current or lower salary range and in lower classes in the same class series. Permanent status is not required for the lower classes in the class series.

(ii) Employees who take a voluntary demotion in-lieu of layoff shall be placed on the internal layoff list(s) for the class from which they demoted and classes at that salary range and lower salary ranges in which the employees held permanent status.

(A) Except for employees who transfer within the same class, employees reverted during the trial service period, upon request, shall be listed at the current and former agency/higher education institution on the internal layoff list for the last class in which the employee held permanent status prior to the reversion.

(B) Employees who transfer within the same class, and are reverted during the trial service period, upon request, shall be listed at the former agency/higher education institution on the internal layoff list for the last class in which the employee held permanent status prior to the reversion.

(iii) Upon request, an employee will be listed on the internal layoff lists for higher level classes where the employee held permanent status when an agency or institution of higher education has developed an internal policy and criteria to allow access to higher level classes.

(b) The following permanent employees of each employing agency and higher education institution may request to have their names placed on the appropriate internal layoff list(s):

(i) Employees who were laid off.

(ii) Employees who are scheduled to be laid off.

(iii) Employees who accepted a voluntary demotion in lieu of a layoff.

(iv) Employees who accepted less-than-comparable positions as defined by the employer's layoff procedure.

(v) Employees who move between agencies and/or higher education institutions and who are reverted during the trial service period.

(A) Except for employees who transfer within the same class, employees reverted during the trial service period shall be listed at the current and former agency/higher education institution on the internal layoff list for the last class in which the employee held permanent status prior to the reversion.

(B) Employees who transfer within the same class and are reverted during the trial service period shall be listed at the former agency or higher education institution on the internal layoff list for the last class in which the employee held permanent status prior to the reversion.

(vi) Employees whose positions are being reallocated downward.

(vii) Employees who are eligible as provided in these rules.

(c) Employees are not eligible to be placed on internal layoff lists for classes from which they have been demoted for cause.

(d) Referrals from the internal layoff list shall be made in accordance with WAC 359-14-030.

(e) Names of eligible employees shall remain on the internal layoff list for two years from the effective date of the qualifying action. Upon the employee's request, eligibility shall be extended for one additional year, for a total of three years of eligibility on the internal layoff list.

(f) The employer may require an alternate review period when offering layoff options or upon appointment from a layoff list as provided in WAC 359-40-060.

(2) Statewide layoff list

(a) Employees shall have the following statewide layoff list rights:

(i) Upon request, employees who are laid off shall be placed on statewide layoff lists for classes in which they held permanent status at the same or lower salary range and lower classes in the same class series or equivalent intersystem classes as determined by the Department of Personnel. Permanent status is not required in the lower classes in the class series or in equivalent intersystem classes.

(ii) Upon request, employees who take a voluntary demotion in-lieu of layoff shall be placed 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 employee held permanent status.

(iii) All employees referred from the statewide layoff list shall be offered an interview.

(b) The following permanent employees may request to have their names placed on the statewide layoff list(s) for other state agencies and higher education institutions:

(i) Employees who were laid off.

(ii) Employees who are scheduled to be laid off.

(iii) Employees who accepted a voluntary demotion in lieu of layoff.

(iv) Employees who accepted less-than-comparable positions as defined by the employer's layoff procedure.

(v) Employees who are eligible as provided in these rules.

(c) Employees are not eligible to be placed on statewide layoff lists for classes from which they have been demoted for cause.

(d) Referrals from the statewide layoff list shall be made in accordance with WAC 359-14-030.

(e) Names of eligible employees shall remain on the statewide layoff list(s) for two years from the effective date of the qualifying action. Upon the employee's request, eligibility shall be extended for one additional year, for a total of three years of eligibility on the statewide layoff list.

(f) The employer may require an alternate review period when offering layoff options or upon appointment from a layoff list as provided in WAC 359-40-060.

(3) Internal Promotional List

(a) The internal promotional list at each agency and each higher education institution shall include the names of the following permanent employees of that employer who meet minimum qualifications and receive a final passing score in the examination for a class having a higher maximum salary than the employee's permanent class.

(i) Current employees.

(ii) Employees who were separated due to layoff and who are currently on an internal layoff list.

(iii) Employees who are eligible as provided in these rules.

Employees who have completed their probationary period may request that their existing open competitive examination score be converted to this list.

(b) Promotional preference may be provided to employees within the organizational unit before considering other internal promotional employees.

(i) An organizational unit is a clearly identified structure or substructure of persons employed to achieve a common goal or function under the direction of a single official.

(ii) An organizational unit may consist of an administrative entity or a geographic location.

(c) Referrals from the internal promotional list shall be made in accordance with WAC 359-14-030.

(d) Names of employees shall remain on the internal promotional list for an indefinite period unless specified in the recruitment notice or as provided in these rules.

(e) Employees appointed to a position from the internal promotional list shall serve a trial service period.

(4) System Wide Movement List

(a) The system wide movement list shall be used to promote, transfer, laterally move, or voluntary demote to a state agency or a higher education institution where the employee is not currently employed. The list shall include the names of the following applicants who meet the minimum qualifications and receive a passing final score in the examination for the class:

(i) Current permanent employees.

(ii) Employees who were separated due to layoff and who are currently on a layoff list.

(iii) Employees who are eligible as provided in these rules.

(iv) Employees who have completed their probationary period may request that their existing open competitive score be converted to this list.

(b) Referrals from the system wide movement list shall be made in accordance with WAC 359-14-030.

(c) Names of employees shall remain on the system wide movement list for an indefinite period unless otherwise specified in the recruitment notice or as provided in these rules.

(d) Employees appointed to a position from the system wide movement list shall serve a trial service period.

(5) Open Competitive List

(a) The open competitive list shall contain the names of all applicants including former employees, who are not eligible for placement on other eligible lists specified in this chapter.

(b) To be considered for the open competitive list, applicants must apply, meet the current qualifications, and pass the examination for the class.

(c) Referrals from the open competitive list shall be made in accordance with WAC 359-14-030.

(d) Names of eligible applicants shall remain on the open competitive list for an indefinite period unless otherwise specified in the recruitment notice or provided by these rules.

(e) Applicants appointed to a position from the open competitive list shall serve a probationary period as designated for the class.

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(1) Each agency director or designee or each higher education institution's personnel officer shall develop an internal procedure to provide reasonable opportunity for current employees requesting to:

(a) transfer within a class;

(b) laterally move; or

(c) voluntarily demote.

(2) The employer's internal procedure for employee-initiated movement shall include the following information:

(a) explanation of the process;

(b) required tests, current qualifications; and

(c) trial service requirements.

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LAYOFF
NEW SECTION
WAC 359-40-010
Reasons for layoff.

(1) Employees may be separated from their position and/or employment in accordance with the statutes and the employer's layoff procedures, without prejudice, because of:

(a) lack of funds;

(b) lack of work;

(c) good faith reorganization for efficiency purposes;

(d) ineligibility to continue in a position which was reallocated; and/or

(e) when there are fewer positions than employees entitled to such positions either by statute or within other provisions of these rules.

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(1) Seniority for layoff purposes is a measure of the last period of unbroken time served in positions in the classified service under the jurisdiction of the Washington Personnel Resources Board.

(2) Seniority for permanent full time employees in a layoff situation will be calculated as follows.

(a) In state agencies, seniority is the last period of unbroken time served in positions in classified service, including time on the layoff lists for a maximum of three years for each layoff occurrence, plus time in an exempt appointment when the employee returns to classified service without a break in service, plus veterans may include active military service up to 5 years in accordance with these rules, minus time spent in leave without pay status except when approved for specific reasons specified in these rules.

(b) In state agencies, for layoff purposes, ties in seniority will be broken by first measuring each employees total accumulated state service; if the tie still exists, by measuring the last continuous time within the current classification; if the tie still exists, by measuring the last continuous time with the current employer; and if the tie still exists, by lot.

(c) In higher education institutions, seniority is the number of calendar days continuously employed in classified service based on the earliest date of continuous classified service, plus veterans may include up to 5 years of active military service credit in accordance with these rules, minus all time spent in leave without pay status, including time in an exempt position, except:

(i) where required by statute, or

(ii) for cyclic year positions.

(3) In state agencies, seniority for part-time employees will be computed on a basic payroll hours compared to full time employees, within the same provisions and restrictions of the definition of seniority.

(4) In higher education institutions, less than full time employment shall be considered full time service for purposes of seniority.

(5) When an employee from a state agency applies to be placed on the statewide layoff list at a higher education institution, the employee's seniority will be recalculated by the higher education institution using data from the agency.

When an employee from a higher education institution applies to be placed on the statewide layoff list at an agency, the employee's seniority will be recalculated by the agency using data from the higher education institution.

(6) An employee who moves from a state agency to a higher education institution or from a higher education institution to a state agency, shall have seniority computed using the applicable method in (2), (3) and (4) of this section for the employee's new employer.

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(1) Each agency and each institution of higher education shall develop a layoff procedure.

(2) The rules for layoff procedures are not intended to exclude requirements that address specific organizational needs or additional options that enhance opportunities for affected employees.

(3) Each layoff procedure shall include, but is not limited to, the following:

(a) Clearly defined layoff unit(s) that minimize disruption of the employer's total operation but are not unduly restrictive of options available to employees.

(i) Layoff units may be a series of progressively larger units within an organization when a valid option in lieu of separation cannot be offered to respective employees within a smaller unit.

(ii) Separate and exclusive layoff units may be established for special employment programs that are provided in these rules.

(b) Provisions that address opportunities to prevent layoff, including, transfers, voluntary demotion, reduced work schedule, voluntary leave without pay and/or positions held by non-permanent or probationary employees.

(c) Provisions that an option(s) within the layoff unit shall be comparable as defined in the employer's layoff procedure.

(d) Provisions that an employer shall not offer a layoff option to a filled position if there is a funded vacancy within the layoff unit in the same class as the filled position and the vacant position is comparable.

(e) Provisions for written notice of layoff to employees by the appointing authority or designee.

(i) Permanent employees shall receive written notice at least 15 calendar days before the effective date of layoff.

(ii) Employers shall advise those employees in writing of layoff options, including alternate review period requirements, the specific layoff list(s) for which they are entitled, and their appeal rights. The written notice shall specify the rights and obligations of the employees to accept or reject layoff options.

(iii) A copy of the employer's layoff procedure shall be made available to each employee who is subject to layoff.

(f) Provisions for options for permanent employees subject to layoff.

(i) Layoff options shall be offered based on seniority.

(ii) The sequence of a layoff option(s) to position(s) within the layoff unit, at a minimum, shall be offered in the following order:

(A) the current class, or if none are available;

(B) classes at the current salary range, or if none are available;

(C) lower classes in descending order, if available.

A through C above are classes in which the employee has held permanent status and are at the same or lower salary range maximum as the current class.

(g) Provisions that address the offering of a layoff option(s) when specific position or selective requirements are necessary, or where there are licensing or legal requirements.

(h) Provisions that address the use of alternate review periods as provided in WAC 359-40-060.

(4) Each layoff procedure may include provisions that allow additional layoff options, in descending salary order, for which the employee is qualified. These options may include:

(a) positions in lower classes in descending order in the same class series;

(b) access to any other less-than-comparable positions;

(c) access to positions filled by non-permanent appointments; and

(d) access to any other comparable positions.

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The employer may require an employee to complete an alternate review period when offering layoff options or upon appointment from an internal layoff list or the statewide layoff list.

(1) The employer will advise the employee in writing at the time of appointment of any requirement to serve an alternate review period and the length of time for the alternate review period. The length of time for the alternate review period shall not exceed the probationary period for the class.

(2) The employee shall serve an alternate review period as determined by the employer.

(a) The employer shall provide the employee with instruction and/or training in the duties of the new position or class.

(b) The employee shall obtain permanent status in the class or new position upon successful completion of the alternate review period.

(3) Employers may separate an employee from a position during the alternate review period.

(4) Employees may voluntarily separate during an alternate review period. The employee may voluntarily separate a maximum of three times during each layoff occurrence.

(5) Upon request, employees separated from positions during the alternate review period shall have their names placed on all lists for which they are eligible for the remaining eligible time.

(6) Separation and subsequent placement on the layoff list from the alternate review period shall be considered no fault. Any negative performance record for this period will be removed from the employee's personnel file.

(7) The employee shall not have an appeal of separation from the alternate review period.

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