WSR 97-20-061

PROPOSED RULES

PERSONNEL RESOURCES BOARD

[Filed September 25, 1997, 2:57 p.m.]

Original Notice.

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

Title of Rule: WAC 356-15-060 Shift premium provisions and compensation, 356-15-090 Schedule change and compensation, and 356-15-130 Special pay ranges.

Purpose: These rules pertain to shift premium provisions and compensation, schedule changes and compensation, and special pay ranges.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Statute Being Implemented: RCW 41.06.150.

Summary: These modifications are intended for clarification purposes to reflect current practice and board intent, allow agencies more flexibility to designate staff to schedule and change schedules, and move language detailing pay ranges to the compensation plan.

Name of Agency Personnel Responsible for Drafting: Sharon Peck, 521 Capitol Way South, Olympia, WA, (360) 753-0468; 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: WAC 356-15-060 describes when employees are eligible to receive shift premium. This modification is for clarification to reflect current practice and board intent; and defines regularly scheduled. WAC 356-15-090 governs schedule change and compensation. This modification is for clarification to allow agencies more flexibility to designate staff to schedule and change schedules. WAC 356-15-130 governs special pay ranges. This modification moves language detailing pay ranges to the compensation plan to allow a more prompt response time to agencies requesting new special pay ranges or modification to existing ranges.

Proposal does not change existing rules: See above.

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

RCW 34.05.328 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 November 13, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Department of Personnel by November 6, 1997, TDD (360) 753-4107, or (360) 586-0509.

Submit Written Comments to: Sharon Peck, Department of Personnel, P.O. Box 47500, FAX (360) 586-4694, by November 11, 1997.

Date of Intended Adoption: November 13, 1997.

September 25, 1997

Dennis Karras

Secretary

AMENDATORY SECTION (Amending WSR 96-13-075, filed 6/18/96, effective 8/1/96)

WAC 356-15-060 Shift premium provisions and compensation. (1) Basic shift premium shall be paid in the amount specified in WAC 356-15-061. For purposes of this section, regularly scheduled means the permanently assigned work schedule/work shift, not including overtime hours, as determined by the agency.

(2) For purposes of this section, evening shift is defined as a work shift of eight or more hours which ends at or after 10:00 p.m. Night shift is defined as a work shift of eight or more hours which begins by 3:00 a.m.

(3) Full time employees shall be entitled to basic shift premium under the following circumstances:

(a) ((Employees whose assigned hours consist entirely of evening and/or night shifts are entitled to shift premium for all hours of their scheduled evening and/or night shifts and for all additional hours which are worked and compensated.)) Regularly scheduled evening shift employees are entitled to shift premium for all hours worked.

(b) ((Employees are entitled to shift premium for all regularly scheduled workshift hours after 6 p.m. or before 6 a.m.)) Regularly scheduled night shift employees are entitled to shift premium for all hours worked.

(c) ((Employees assigned to work at least one, but not all, night and/or evening shifts, are entitled to shift premium for those scheduled evening or night shifts, and for all additional hours which are worked and compensated.)) Regularly scheduled day shift employees are not entitled to shift premium unless the employee's regularly scheduled work shift includes hours after 6:00 p.m. and before 6:00 a.m. The employee shall be entitled to shift premium for the hours worked after 6:00 p.m. or before 6:00 a.m., excluding overtime.

(d) Employees regularly scheduled to work at least one, but not all, night and/or evening shifts are entitled to shift premium for those shifts. Additionally, these employees are entitled to shift premium for all hours adjoining that evening or night shift which are worked and compensated.

(4) Part-time and intermittent employees shall be entitled to basic shift premium under the following circumstances:

(a) For all assigned hours of work after 6:00 p.m. and before 6:00 a.m.

(b) For assigned full night or evening shifts, as defined in subsection (2) of this section.

(5) Employees on contingency schedules do not normally receive shift premium with the exception noted in WAC 356-15-090.

(((5))) (6) Monthly shift premium rates: In cases where shift premium hours are regularly scheduled over a year, agencies may pay shift premium at a monthly rate which is equal for all months of the year. Such monthly rates shall be calculated by dividing twelve into the amount of shift premium an employee would earn in a year if the hourly rules in subsection (2) of this section were applied. This option is granted to simplify bookkeeping and is not authorized to establish shift premium rates higher or lower than those set by the board.

(((6))) (7) Shift premium and overtime: When an employee is compensated for working overtime during hours for which shift premium is authorized in this section, the overtime rate shall be calculated using the "regular rate" as defined in WAC 356-05-353.

(((7))) (8) Payment during leave and for holidays not scheduled to work: Employees eligible for shift premium for their regularly scheduled shifts will receive the same proportion of shift premium for respective periods of authorized paid leave and for holidays not worked which fall within their ((usual)) regularly scheduled shift.

[Statutory Authority: Chapter 41.06 RCW and RCW 41.06.150. 96-13-075, 356-15-060, filed 6/18/96, effective 8/1/96. Statutory Authority: RCW 41.06.040 and 41.06.150. 93-12-086 (Order 419), 356-15-060, filed 5/28/93, effective 7/1/93; 92-14-063 (Order 406), 356-15-060, filed 6/26/92, effective 8/1/92. Statutory Authority: RCW 41.06.150. 86-12-025 (Order 248), 356-15-060, filed 5/28/86, effective 7/1/86; 86-06-017 (Order 242), 356-15-060, filed 2/24/86; 85-14-008 (Order 224), 356-15-060, filed 6/24/85; 84-14-006 (Order 207), 356-15-060, filed 6/22/84; 84-05-024 (Order 198), 356-15-060, filed 2/10/84; Order 98, 356-15-060, filed 1/13/77, effective 2/13/77; Order 86, 356-15-060, filed 5/4/76, effective 10/1/76.*]

AMENDATORY SECTION (Amending WSR 96-02-073, filed 1/3/96, effective 2/3/96)

WAC 356-15-090 Schedule change and compensation. (1) The ((appointing authority)) agency shall schedule the working days and hours of scheduled work period employees. This schedule shall remain in effect for at least seven calendar days, and may be changed only with seven or more calendar days notice. If seven calendar days notice is not given, a new schedule does not exist until the notice period expires. Agencies may notify employees of more than one future schedule change in a single notice.

The seven calendar days notice of changes in working days and/or hours must be given to the affected employees during their scheduled working hours. The day that notification is given shall constitute a day of notice.

(2) If the ((appointing authority)) agency changes the assigned hours or days of scheduled work period employees without giving them at least seven days notice of the change, employees will be paid for all time worked outside the scheduled hours or days at the overtime rate for the duration of the notice period.

(a) When changes in employees' assigned hours or days are made without proper notice, employees may work their scheduled hours or days unless the ((appointing authority)) agency deems that:

(i) The employees are unable to perform satisfactorily as the result of excessive overtime hours; or

(ii) The work which normally would have been performed within the scheduled hours or days cannot be performed.

(b) The state is not obligated to pay for those scheduled hours or days not worked, unless the employee is on an authorized leave of absence with pay.

(c) Overtime pay and shift or schedule change pay shall not be paid for the same incident.

(3) Regardless of whether advance notice is given, an agency is not obligated to pay overtime due to a change in work schedule, when such a change is in response to a request from an employee, provided the employee works no more than forty hours in a workweek.

When the majority of employees in a work unit ask, in writing, for such a change, and the work unit can function properly only if all employees in the unit work the proposed schedule or scheduling plan, the agency is authorized to approve the change for the entire unit as an employee-initiated change. A written request for a schedule change from the exclusive representative shall constitute a request of employees within a certified bargaining unit.

(4) When an agency initiates a scheduled change from one scheduled standard work schedule to another scheduled standard work schedule, there is created a seven-day transition period.

(a) The transition period starts at the beginning of the shift of the previous schedule which would have begun a new five-consecutive-day work cycle.

(Example: An eight-to-five Tuesday through Saturday employee changes to a Sunday-Thursday schedule beginning on Sunday. The transition period starts at eight a.m. on the last Tuesday of the old schedule, and runs until eight a.m. on the first Tuesday under the new schedule.)

(b) If, during the transition period, the employee must work more than five of the seven workdays, then the work in excess of forty non-overtime hours will be paid at overtime rates.

(c) If, during the transition period, the schedule change causes an employee to begin work on an earlier day of the workweek or at an earlier hour of the workday than was required under the old schedule, the employee will be paid at the overtime rate for the first hours worked in the new schedule which precede the next hours which the employee would have worked under the old schedule.

(5) Contingency scheduling is allowed for employees having the following responsibilities: Highway snow, ice, and avalanche control, grain inspection, horticulture inspection; and in the departments of natural resources or corrections, controlling forest fires, or performing work in a fire camp in support of fire crews, "hoot owl," forest fuels management and aerial applications.

(a) Therefore: For non-forest-fire personnel in scheduled work period positions, the ((appointing authority)) agency shall not be bound by the above scheduled shift change notice requirement if the ((appointing authority)) agency notifies affected employees of the contingency schedule in writing when they enter the position or not less than 30 days prior to implementation.

When conditions mandate the activating of the contingency schedule, the ((appointing authority)) agency shall pay affected employees the overtime rate for all hours worked outside the original schedule at least for the employee's first shift of the contingency schedule and for other overtime hours covered by subsection (7) of this section.

(b) For forest-fire control and fire-camp support personnel in scheduled work period positions, the above schedule change notice requirement shall not apply if the ((appointing authority)) agency notifies affected employees in writing that they are subject to contingency scheduling when they enter the position or not less than 30 days prior to implementation.

When an employee's forest fire contingency schedule requires him or her to change working hours from the previous schedule, the ((appointing authority)) agency shall pay the affected employee the overtime rate for all hours worked outside the previous schedule for the employee's first shift of the new contingency schedule.

When such employees have completed the first eight hours of their assigned contingency shift (10 hours in the case of 10-40 work schedule employees), they shall receive overtime rates for all subsequent work performed until released from duty for a period of five consecutive hours.

(6) In the department of corrections, division of prisons, the agency and the employees may agree that employees sent to forest fire camps in charge of inmate fire fighters for a period of twenty four hours or more will be on "extended duty assignment." Employees on extended duty assignment will be considered to be on continuous duty from the time they commence such duty including travel time to the fire, until they are released from duty including travel time for return to their nonfire duty station.

(a) During the extended duty assignment, all time will be paid as work time, except that the employer may deduct up to eight hours of nonwork time each day for sleep, plus up to three hours for meals, provided that:

(i) The employee has no responsibility during time deducted for meal periods.

(ii) The time deducted for sleep includes a period of five continuous hours which are not interrupted by a call to work.

(iii) No sleep time shall be deducted if the employer does not furnish adequate sleeping facilities. Adequate sleeping facilities are those which are usual and customary for forest fire camps.

(b) Scheduled work period employees shall be entitled to call back pay to the extent described in WAC 356-15-100 and 356-15-110 for a maximum of one payment, equal to three straight-time hours, at the commencement of an extended duty assignment. No call-back payment shall be made for any work during the hours of an extended duty assignment, or the transition back to the regular work schedule.

(c) The beginning of each work week on extended duty assignment shall be unchanged from the last previous work week on the employee's regular work schedule. All compensable hours of work on extended duty assignment shall be at overtime rates except eight in any work day. All compensable hours on a holiday shall be at overtime rates.

(d) There are no scheduled days off during an extended duty assignment. However, compensable hours on a holiday, and all compensable hours in excess of forty straight time hours in any workweek (including hours worked within the same workweek either before or after the extended duty assignment), shall be paid at overtime rates.

(e) During an extended duty assignment, all hours are duty hours; there is no eligibility for standby pay.

(f) Employees whose regular scheduled work shift entitles them to shift premium for their full shift, or a portion thereof, shall be paid shift premium as follows:

(i) Employees whose regular schedules are all night shifts will continue to receive night shift premium for all paid hours of the extended duty assignment.

(ii) Employees whose regular schedules call for some, but less than four hours of, night shift work each day will continue to receive the same number of hours at shift premium during each workday of the extended duty assignment.

(iii) Employees whose regular schedules call for some, but not all, full night shifts each week will receive shift premium for all paid hours on those same days during the extended duty assignment.

(7) When a scheduled or nonscheduled work period employee experiences a schedule change (within or between agencies) which causes an overlap in workweeks and requires work in excess of forty hours in either the old or the new workweek, the employee must receive overtime compensation at least equal to the amount resulting from the following calculations:

(a)(i) Starting at the beginning of the "old" workweek, count all hours actually worked before the end of that workweek, and calculate the straight-time pay and the overtime pay (based on "regular rate" as defined in WAC 356-05-353).

(ii) Starting at the conclusion of the "new" workweek, count back to include all hours actually worked since the beginning of that workweek, and calculate the straight-time and overtime (based on "regular rate" as defined in WAC 356-05-353).

(iii) Pay the larger amount calculated under (a)(i) and (ii) of this subsection.

(b) If any other combination of straight-time and time-and-one-half-rate pay required by these rules results in an amount of pay, for either workweek, which is greater than the amount calculated in (a)(iii) of this subsection, then only the larger amount should be paid.

(8) If overtime is incurred as a result of employee movement between state agencies, the overtime will be borne by the receiving agency.

[Statutory Authority: RCW 41.06.150. 96-02-073, 356-15-090, filed 1/3/96, effective 2/3/96; 89-16-031 (Order 328), 356-15-090, filed 7/25/89, effective 8/25/89; 89-10-040 (Order 317), 356-15-090, filed 4/28/89, effective 6/1/89; 87-24-026 (Order 285), 356-15-090, filed 11/24/87, effective 1/1/88; 87-10-037 (Order 274), 356-15-090, filed 5/1/87, effective 6/1/87; 86-12-025 (Order 248), 356-15-090, filed 5/28/86, effective 7/1/86; 83-18-031 (Order 191), 356-15-090, filed 8/31/83; Order 114, 356-15-090, filed 12/21/77; Order 98, 356-15-090, filed 1/13/77, effective 2/13/77; Order 86, 356-15-090, filed 5/4/76, effective 10/1/76.*]

AMENDATORY SECTION (Amending WSR 92-22-043 (Order 413), filed 10/27/92, effective 12/1/92)

WAC 356-15-130 Special pay ranges. ((These ranges are used)) The personnel resources board may allow for special pay ranges to equal or approximate prevailing rates practices found in private industry or other governmental units. An affected class is identified either by a letter designation following the basic salary range number or by a letter designation preceding a number. In the latter case, a special salary schedule will be used for such classes.

Details of the affected classes with a special pay range will appear in the salary schedule section of the compensation plan.

(((1) "E" range: This range is used for classes having a prevailing pay range which is shorter than Washington's standard ranges. An "E" range is a standard range with the first four steps removed. Thus, the first step of such a range is the same as Step E of the standard range having the same range number. Periodic increases through the steps of this range are made at the same time intervals as through standard ranges, i.e., a two-step increase after six months at Step E and two annually thereafter up to the maximum step of the range.

(2) "L" range: This special range is used only for the class of liquor store clerk (0628). The "L" range was designed to more closely parallel the prevailing pay structure for retail clerks in private industry. Periodic increases through the steps of the "L" range are made at the same time intervals as through a standard range. Normal progression is Steps A, D, G and K, which represents ten percent per periodic increase.

(3) "T" range: Used only for the classes of institution teachers. These ranges are constructed by identifying Step K of the correspondingly numbered regular state ranges as "Step 10" of the "T" range; the lower nine steps of the "T" range are each two regular-range steps (approximately 5%) apart. Advancement through these ranges is at the rate of one step per year.

(4) "V" range: Used only for the classes of teachers of the deaf or blind and principals, school for the deaf or blind. "V" ranges are the same as the current ranges of Vancouver, Washington School District #37 for certificated employees of similar background and experience. Advancement through the range is at the rate of one step per year.

(5) "I" range: This range is always ten ranges higher than the range approved for lottery district sales representative or lottery telemarketing representative 1 and 2 and it may be applied only to those classifications. Use of this range is limited to sales incentive programs which: (a) May not exceed thirteen weeks for any program; (b) may not exceed four programs in any consecutive twelve months; (c) require achievement of specific goals which are set for each program by the lottery, such goals to be in excess of normal performance standards for the class.

The lottery is authorized to compensate individual employees on the "I" range for not more than three months as a result of any one sales incentive program, with the number of months stipulated in the incentive program announcement. Within these limits, movement of any employee to and from the "I" range will be at the discretion of the lottery, and shall be from and to the same step, subject to change by the employee's periodic increment date.

(6) "N" range: This range is used for classes requiring licensure as a registered nurse and having a prevailing pay range which is longer than Washington's standard ranges. An "N" range is a standard range, steps A through K, with five added steps, L through P. Periodic increases through step K of these ranges are made at the same intervals as through standard ranges. Thereafter, an employee receives a one-step increase each year up to the maximum step of the range.

(7) "J" range: This range consists of the single rate per hour of salary range 62, step K. Use is limited to lottery employees who volunteer and are selected for lottery drawing duty as one of the following: (a) The lottery drawing official (LDO); (b) the lottery security official (LSO); or (c) the headquarters drawing official (HDO), as described under lottery procedures.

Employees performing these functions during their normal working shift will not be eligible for "J" range compensation. Employees performing these functions outside of their shift will be compensated by the "J" rate on an hourly basis with a two-hour minimum per drawing period.

(8) "D" range: This range is a single level hourly rate equivalent to one-half of step A of range 29. It is payable to employees who have dog handler assignments, and only while they are off duty, but are still required to care for the dog in their charge (usually at home). Work time to be paid at D range includes, but is not limited to time required for daily feeding, exercising, grooming, and emergency health care of the dog, and care and cleaning of the kennel.))