SB285: Bill Text

LRB-2783/1

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2015 - 2016 LEGISLATURE

2015 Senate BILL 285

October 1, 2015 - Introduced by Senators Roth, Wanggaard, Darling, S. Fitzgerald, Kapenga, Lasee, Lazich, LeMahieu, Nass, Stroebel and Vukmir, cosponsored by Representatives Steineke, Rohrkaste, Allen, August, Born, Brandtjen, R. Brooks, Craig, Czaja, Edming, Gannon, Hutton, Jagler, Jarchow, Katsma, Kleefisch, Knodl, Knudson, Kremer, Kuglitsch, Murphy, Murtha, Nygren, Sanfelippo, Skowronski, Thiesfeldt, Tittl, Vorpagel, Weatherston and J. Ott. Referred to Committee on Labor and Government Reform.

SB285,2,5 An Act to repeal 230.16 (7m) (c), 230.16 (9), 230.19 (2), 230.19 (3), 230.25 (1g), 230.25 (1m), 230.28 (1) (b), 230.28 (6), 230.31 (2) and 230.40 (3); to renumber 230.19 (1); to renumber and amend 230.01 (2), 230.16 (7), 230.34 (1) (a) and 230.43 (1) (a); to amend 62.13 (4) (d), 63.08 (1) (f) 1., 63.08 (1) (f) 2., 63.08 (1) (f) 3., 63.37, 63.39 (2m), 66.0509 (1), 230.04 (14), 230.05 (7), 230.08 (2) (c), 230.12 (1) (h), 230.13 (1) (a), 230.13 (3) (b), 230.15 (1), 230.15 (1m) (c) 1., 230.16 (title), 230.16 (1) (a), 230.16 (2), 230.16 (3), 230.16 (4), 230.16 (5), 230.16 (6), 230.16 (7m) (b) 4., 230.16 (10), 230.16 (11), 230.17 (1), 230.17 (2), 230.18, 230.21 (1), 230.21 (2), 230.21 (3), 230.213, 230.24 (1), 230.24 (2), 230.25 (1), 230.25 (1n) (a) (intro.), 230.25 (2) (a), 230.25 (2) (b), 230.25 (3) (a), 230.26 (2), 230.26 (4), 230.28 (1) (a), 230.28 (1) (am), 230.28 (1) (c), 230.31 (1) (intro.), 230.34 (1) (am), 230.34 (2) (a), 230.34 (2) (b), 230.35 (3) (d), 230.37 (1), 230.43 (1) (title), 230.43 (1) (b), 230.43 (1) (c), 230.43 (1) (d), 230.43 (1) (e), 230.43 (5), 230.44 (1) (c), 230.44 (1) (e) and 321.65 (3) (g); to create 20.865 (1) (dm), 20.928 (1f), 230.01 (2) (bm), 230.01 (2) (bp), 230.04 (13m), 230.04 (19), 230.06 (1) (m), 230.06 (4), 230.13 (3) (c), 230.15 (6), 230.15 (7), 230.16 (1) (ap), 230.25 (2) (am), 230.31 (3), 230.34 (1) (a) 1. to 9. and 230.445 of the statutes; and to affect 2015 Wisconsin Act 55, section 9101 (5n) (a) and 2015 Wisconsin Act 55, section 9101 (5n) (b); relating to: the state civil service and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the state civil service (civil service). The civil service includes all positions and offices of trust or employment in the service of the state, except positions and offices in the University of Wisconsin System and the Wisconsin National Guard. The civil service includes both the classified and unclassified service. The civil service is administered by the Division of Personnel Management (DPM) in the Department of Administration (DOA) and the Bureau of Merit Recruitment and Selection (bureau) in DPM.

The hiring process.

1. This bill replaces competitive examinations with competitive procedures. Under current law, subject to certain exceptions, appointments to and promotions in the classified service must be made according to merit and fitness, which must be ascertained by competitive examinations. This bill changes the manner that must be used to ascertain the merit and fitness of applicants from competitive examinations to competitive procedures.

2. This bill requires applicants for positions in the classified service to submit an application and resume to the bureau.

3. Unless a certain conviction record disqualifies applicants from a civil service position, this bill prohibits the director of the bureau from asking an applicant on an application, or otherwise, to supply information about the applicant's conviction record before the applicant is certified for the position.

4. This bill provides a preference for veterans and certain spouses of veterans in the hiring process for a classified position in the civil service. Under the bill, if a veteran or qualifying spouse of a veteran is included on a certification list, the appointing authority must offer an interview to the veteran or spouse of a veteran. Additionally, after interviewing candidates for a position, if minimum qualifications, skills, abilities, competencies, and knowledge are equal among the candidates, an appointing authority shall give a preference to the veteran. These preferences replace the preference system under current law, under which veterans and qualifying spouses of veterans receive preference points. Under current law, preference points are applied during the process of creating a certification list for a position.

5. Under the bill, before making an offer of employment to an individual who currently holds a position in the civil service, an appointing authority must review the individual's personnel file. This bill also requires the administrator of DPM and the director of the bureau to provide an appointing authority with access to the personnel files of such employees.

6. This bill changes the general deadline for making appointments from 60 days after certification to 30 days after certification. The bill also requires the director of the bureau to use procedures designed to certify applicants for a vacant permanent position within 30 days of receiving a request from an appointing authority, rather than within 45 days under current law.

Probation, reinstatement, restoration, and layoffs.

1. This bill changes the standard probationary period for all original and promotional appointments to permanent and seasonal positions in the classified service from six months to two years with a potential waiver after one year. The bill also changes the probationary period for employees in supervisory or management positions from one year with a potential waiver after six months to two years with a potential waiver after one year.

2. This bill limits reinstatement privileges to permanent employees in the classified service who are on layoff status and reduces the eligibility period for reinstatement privileges to three years following the date of the layoff. Under current law, permanent classified service employees who leave the classified service without any delinquency or misconduct have reinstatement privileges for a five-year period from the date the employee leaves the classified service. The bill eliminates reinstatement privileges for permanent classified service employees who leave the classified service without any delinquency or misconduct for reasons other than layoff. This bill also eliminates reinstatement privileges for an employee who leaves the classified service to fill an elective position. Under the bill, the changes to reinstatement privileges do not apply to classified employees who leave the classified service before the effective date of the bill.

3. This bill eliminates restoration rights for permanent employees in the classified service who are laid off on or after the effective date of the bill. Under current law, a permanent employee in the classified service who is on layoff status has restoration rights for the three-year period following the layoff.

4. This bill requires appointing authorities to determine layoff status primarily based on job performance, after which an appointing authority may consider disciplinary records, seniority, and ability. Under current law, the order of layoff may be determined by seniority, performance, any combination of seniority and performance, or by other factors.

Just cause and discipline.

1. The bill requires the administrator of DPM to establish standards for progressive discipline plans that are prepared by agencies and applied to all employees in the classified service. The bill specifically requires that the standards address progressive discipline for both personal conduct and work performance that is inadequate, unsuitable, or inferior. The bill also requires that each appointing authority prepare a progressive discipline plan for the appointing authority's agency that complies with the administrator's standards.

2. Under current law, an employer may remove, suspend without pay, discharge, reduce the base pay of, or demote (take an adverse employment action against) a permanent classified employee and certain assistant district attorneys and assistant state public defenders only for just cause. This bill expressly states that an employer has just cause to take an adverse employment action against an employee for work performance or personal conduct that an appointing authority determines to be inadequate, unsuitable, or inferior, but only after the appointing authority imposes progressive discipline that complies with standards established by the administrator of DPM. This bill also expressly states that an employer has just cause to take an adverse employment action against an employee without imposing progressive discipline for specific conduct. Such conduct includes theft of agency property, falsifying agency records, and while on duty, harassing or intentionally inflicting physical harm on another person.

3. This bill changes the threshold for considering an employee's position abandoned and disciplining the employee for failing to report for work as scheduled without contacting a supervisor from 5 consecutive working days during a calendar year to 3 working days in a calendar year.

Grievance process for certain adverse employment actions.

This bill creates a specific grievance process for classified employees to challenge adverse employment actions. To begin the grievance process, an employee must file a complaint challenging the adverse employment decision with the employee's appointing authority no later than 14 days after the employee becomes aware of, or should have become aware of, the adverse employment decision. The appointing authority then conducts an investigation, meets with the employee in person, and issues a written decision no later than 14 days after receiving the complaint. To appeal an appointing authority's decision, the employee must file a complaint with the administrator of DPM no later than 14 days after the appointing authority issues its decision. Within 30 days of receiving a timely complaint, the administrator must review the complaint and issue a written decision. To appeal the administrator's decision, an appointing authority or employee must file an appeal with the Employment Relations Commission (WERC) not later than 14 days after receiving the administrator's decision. If an employee fails to satisfy any of the deadlines described in the grievance process, the employee is deemed to have waived his or her right to appeal the adverse employment action.

If WERC determines that all of the procedural requirements for an appeal of an adverse employment decision have been satisfied, it will hear the employee's appeal under its standard process for state civil service appeals except that WERC must issue a decision on an appeal of an adverse employment decision no later than 120 days after the appeal is filed.

Discretionary merit award program.

This bill requires the administrator of DPM to create a discretionary merit award program to provide additional funding to state agencies for the purpose of providing lump sum monetary awards to classified employees whose performance exceeds agency expectations. Under the bill, each state agency must certify to the administrator the amount of additional funding the agency needs to make lump sum discretionary merit awards to classified employees. The administrator then distributes the additional funding appropriated for this purpose to state agencies to make the lump sum merit awards to classified employees.

Other changes:

1. This bill adds to the current employee performance evaluation program a requirement that each appointing authority conduct an annual performance evaluation of each employee appointed by the appointing authority.

2. This bill requires an appointing authority to permanently maintain employee files, and subject to certain exceptions, prohibits the removal of disciplinary records from employee personnel files.

3. This bill eliminates the requirement that, if the director of the bureau makes certain findings, competition for a vacancy in the classified service must be limited to members of the classified service, and it eliminates the authority of the director to limit competition for promotional opportunities in certain circumstances.

4. This bill requires DOA to consult with each state agency to develop a plan, by no later than January 1, 2017, for assuming responsibility for services relating to human resources. This bill also requires, by January 1, 2017, DOA to develop a plan to assume responsibility for administering payroll services, finance services, budget and procurement functions, and information technology services for certain state agencies and boards.

5. This bill requires the administrator of DPM and the director of the bureau to review all of the following by no later than January 1, 2017:

a. The classification of all positions in the state civil service.

b. The Wisconsin Human Resources Handbook.

c. The feasibility of requiring all agencies to use electronic personnel files and a uniform personnel evaluation system.

d. The 2015-17 compensation plan.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB285,1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

SB285,2 Section 2. 20.865 (1) (dm) of the statutes is created to read:

SB285,6,5 20.865 (1) (dm) Discretionary merit compensation program. The amounts in the schedule to supplement the appropriations to state agencies for the cost of discretionary merit compensation awards approved by the division of personnel management in the department of administration under s. 20.928 (1f).

SB285,3 Section 3. 20.928 (1f) of the statutes is created to read:

SB285,6,16 20.928 (1f) Each state agency head shall certify to the administrator of the division of personnel management in the department of administration, at such time and in such manner as the administrator prescribes, the sum of money needed from the appropriations under s. 20.865 (1) (dm) for the state agency to make lump sum discretionary merit compensation awards to its classified employees. Upon receipt of the certifications together with such additional information as the administrator prescribes, the administrator shall determine the amounts required from the appropriation to supplement state agency budgets. The administrator may not approve an agency request for money from the appropriation under s. 20.865 (1) (dm) for a discretionary merit award that increases an employee's base compensation.

SB285,4 Section 4. 62.13 (4) (d) of the statutes is amended to read:

SB285,7,10 62.13 (4) (d) The examination shall be free for all U.S. citizens over 18 and under 55 years of age, with proper limitations as to health and, subject to ss. 111.321, 111.322, and 111.335, arrest and conviction record. The examination, including minimum training and experience requirements, shall be job-related in compliance with appropriate validation standards and shall be subject to the approval of the board and may include tests of manual skill and physical strength. All relevant experience, whether paid or unpaid, shall satisfy experience requirements. The board shall control examinations and may designate and change examiners, who may or may not be otherwise in the official service of the city, and whose compensation shall be fixed by the board and paid by the city. Veterans and their spouses shall be given preference points in accordance with s. 230.16 (7) 63.08 (1) (fm).

SB285,5 Section 5. 63.08 (1) (f) 1. of the statutes is amended to read:

SB285,7,15 63.08 (1) (f) 1. The commission may not impose any restriction as to age on any veteran who is applying or eligible for a position under this section. The commission shall give preference points to veterans and their spouses under s. 230.16 (7) par. (fm), except as provided under subd. 2.

SB285,6 Section 6. 63.08 (1) (f) 2. of the statutes is amended to read:

SB285,7,19 63.08 (1) (f) 2. Notwithstanding s. 230.16 (7), persons Persons shall be certified from the eligible list under s. 63.05 (1) (b) without adding any preference points to any person's grade.

SB285,7 Section 7. 63.08 (1) (f) 3. of the statutes is amended to read:

SB285,8,2 63.08 (1) (f) 3. After the certification under subd. 2., any veteran or veteran's spouse whose grade, plus the points to which the veteran or spouse is entitled under s. 230.16 (7) par. (fm), is equal to or higher than the lowest grade on the list made under subd. 2. shall be added to the certification list under s. 63.05 (1) (b). The number of persons added to a certification list under this subdivision may not exceed the number of persons initially certified under subd. 2.

SB285,8 Section 8. 63.37 of the statutes is amended to read:

SB285,8,13 63.37 Board to keep a register of eligibles. From the returns or reports of the examiners, or from the examinations made by the board, the board shall prepare and keep a register for each grade or class of position in the service of such city, of the persons whose general average standing upon examinations for such grade or class is not less than the minimum fixed by the rules of such board, and who are otherwise eligible, and such persons shall take rank upon the register as candidates in the order of their relative excellence as determined by examination without reference to priority of time of examination. The board shall impose no restrictions as to age in case of veterans, and veterans and their spouses shall be given preference points in accordance with s. 230.16 (7) 63.08 (1) (fm).

SB285,9 Section 9. 63.39 (2m) of the statutes is amended to read:

SB285,8,20 63.39 (2m) Notwithstanding s. 230.16 (7) 63.08 (1) (fm), the board shall certify persons from the list of eligibles without adding preference points to their grades. After the certification under sub. (1) or (2), the board shall add to the certification list any veteran or veteran's spouse whose grade, plus the points to which the veteran or spouse is entitled under s. 230.16 (7) 63.08 (1) (fm), is equal to or higher than the lowest grade on the list of eligibles.

SB285,10 Section 10. 66.0509 (1) of the statutes is amended to read:

SB285,9,9 66.0509 (1) Any city or village may proceed under s. 61.34 (1), 62.11 (5) or 66.0101 to establish a civil service system of selection, tenure and status, and the system may be made applicable to all municipal personnel except the chief executive and members of the governing body, members of boards and commissions including election officials, employees subject to s. 62.13, members of the judiciary and supervisors. Any town may establish a civil service system under this subsection. For veterans there shall be no restrictions as to age, and veterans and their spouses shall be given preference points in accordance with s. 230.16 (7) 63.08 (1) (fm). The system may also include uniform provisions in respect to attendance, leave regulations, compensation and payrolls for all personnel included in the system. The governing body of any city, village or town establishing a civil service system under this section may exempt from the system the librarians and assistants subject to s. 43.09 (1).

SB285,11 Section 11. 230.01 (2) of the statutes is renumbered 230.01 (2) (a) and amended to read:

SB285,9,15 230.01 (2) (a) It is the policy of the state and the responsibility of the director and the administrator to maintain a system of personnel management which fills positions in the classified service through methods which apply the merit principle, with adequate civil service safeguards.

SB285,9,21 (b) It is the policy of this state to provide for equal employment opportunity by ensuring that all personnel actions including hire, tenure or term, and condition or privilege of employment be based on the ability to perform the duties and responsibilities assigned to the particular position without regard to age, race, creed or religion, color, disability, sex, national origin, ancestry, sexual orientation, or political affiliation.

SB285,9,23 (c) It is the policy of this state to take affirmative action which is not in conflict with other provisions of this chapter.

SB285,9,25 (d) It is the policy of the state to ensure its employees opportunities for satisfying careers and fair treatment based on the value of each employee's services.

SB285,10,3 (e) It is the policy of this state to encourage disclosure of information under subch. III and to ensure that any employee employed by a governmental unit is protected from retaliatory action for disclosing information under subch. III.

SB285,10,5 (f) It is the policy of this state to correct pay inequities based on gender or race in the state civil service system.

SB285,12 Section 12. 230.01 (2) (bm) of the statutes is created to read:

SB285,10,10 230.01 (2) (bm) It is the policy of this state to recruit, select, and promote employees based on their relative skills, abilities, competencies, and knowledge, including using open processes to consider qualified applicants for initial employment.

SB285,13 Section 13. 230.01 (2) (bp) of the statutes is created to read:

SB285,10,15 230.01 (2) (bp) It is the policy of this state to retain employees on the basis of the adequacy of their performance, to correct inadequate performance when possible and appropriate, and to separate from state service employees whose performance and personal conduct is inadequate, unsuitable, or inferior.

SB285,14 Section 14. 230.04 (13m) of the statutes is created to read:

SB285,10,20 230.04 (13m) The administrator shall establish standards for progressive discipline plans to be prepared by all agencies and applied to all employees in the classified service. The standards shall address progressive discipline for personal conduct and work performance that is inadequate, unsuitable, or inferior.