Probation – Probationary periods in Minnesota may be for 30-days to 2-years, depending on the rules for that particular group of employees. (Minnesota statute section 43A.16, subdivision 1) Non-managerial employees who are not covered by a collective bargaining agreement have a standard probation of 6-months compared to 12-months in Wisconsin. (Minnesota Commissioner's Plan, Chapter VII) The probationary period may be extended for up to 6 additional months, 12 additional months in Wisconsin. Probation is optional for reinstatement, transfer to a new class, transfer to a different agency or jurisdiction, and voluntary demotion. An employee with permanent status who does not complete an optional probation is restored to the former class and agency. In Wisconsin, similar re-employment provisions apply following non-completion of probationary periods when the probation is a result of intra-agency movement. Minnesota provides a trial period for 15 calendar days for a non-managerial employee not covered by a collective bargaining agreement who moves to a new class and/or agency to decide whether the employee will remain in the new position.
Grievances – Minnesota provides a dispute resolution process for employees similar to that of the grievance process in Wisconsin. (Minnesota statutes section 43A.33) For non-managerial employees who are not covered by a collective bargaining agreement, the Minnesota process provides for initial submission of complaints to the employee’s immediate supervisor, followed by the next level supervisor if unresolved. (Minnesota Commissioner's Plan, Chapter XII) Wisconsin rules provide one step for agency management and a second for review by Department of Administration. The time limits at each step in the Minnesota rules are similar to those of Wisconsin. Minnesota encourages employees to use the dispute resolution process for adverse employment decisions but the employee may appeal directly to the Bureau of Mediations Services at any time. (Minnesota Commissioner's Plan, Chapter XII) Employees in Wisconsin must use the grievance procedure provided in statute.
Layoff – For non-managerial employees who are not covered by a collective bargaining agreement, the Minnesota rules provide that permanent and probationary employees may be laid off. (Minnesota Commissioner's Plan, Chapter X) Wisconsin does not allow for the layoff of employees on an original probation. A discussion with employees regarding voluntary reduction of hours, job sharing or other actions prior to initiating layoff is permissible. (Minnesota Commissioner's Plan, Chapter X) Employees shall be reassigned to another position in same class, agency, and employment condition within 35 miles prior to initiating layoffs. (Minnesota Commissioner's Plan, Chapter X) All provisional employees must be released prior to layoffs. There is no requirement in Wisconsin to release any type of employee prior to initiating layoff. The Minnesota statute provides that if layoffs become necessary, each agency with more than 50 full time employees must reduce management and supervisory positions by the same percentage as line and support staff. (Minnesota statute section 43A.046) There is no such requirement in Wisconsin. Minnesota requires a layoff notice of at least 3 weeks which will include all of the following options if available: (1) Accept layoff; (2) Bumping of least senior employee within 35 miles in same employment condition, same agency, and same class, or if not available, a comparable or lower class employee previously served in order of previous service; (3) Vacancy in same agency; (4) Reduction in hours in same agency and the same class or comparable or lower class for which the employee is qualified; (5) Bumping least senior employee with no geographic limits; (6) Bumping least senior employee from full-time to part-time and part-time to full-time if no bumping options to same class and employment condition or vacancies in same agency and employment condition within 35 miles are available; and (7) Claiming a transfer or demotion to another agency unless a vacancy within the agency has been offered. (Minnesota Commissioner's Plan, Chapter X) If the employee is laid off or demotes in lieu of layoff, they will be placed on a layoff list for their class within the agency for 1 to 3 years, depending on continuous service, and may request to be put on the enterprise layoff list. (Minnesota Commissioner's Plan, Chapter X) Recall from such layoff list is mandatory. Wisconsin rules provide for transfer and if not available, demotion in lieu of layoff and no recall rights for employees who have been laid off.
8. Summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule:
The Department is proposing this rule to update existing rules and interpretations of existing statutes.
9. Effect on small business:
The rule has no effect on small businesses.
10. Any analysis and supporting documents used in support of the agency’s determination of the rule’s effect on small business or in preparation of economic impact report:
The proposed rule has no effect on small businesses because only governmental employers and their employees are governed by ch. 230, Wis. Stats., as administered by the Department of Administration, Division of Personnel Management. 11. Agency Contact Person:
Nicole Rute, Executive Human Resources Officer
Department of Administration
Division of Personnel Management
101 E. Wilson Street
P.O. Box 7855
Madison, WI 53707-7855
Telephone: (608) 267-1019
12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearing, by regular mail or email to the contact information listed above.
A public hearing will be held on Tuesday, February 20, 2018 from 1:00 pm to 4:00 pm at the Department of Administration building located at 101 E. Wilson Street, Madison, WI 53703.
Rule comments will be accepted until close of business on Tuesday, February 20, 2018.
RULE TEXT
Section 1. ER 1.02 (2) (b), (8), (9), (22), (42) and (46) are amended to read:
ER 1.02 (2) (b) Eliminating a substantial disparity between the proportion of members of racial and ethnic, gender or handicap disability groups either in the classified civil service determined by grouping classifications according to similar responsibilities, pay ranges, nature of work, other factors recognized in the job evaluation process and any other factors the division considers relevant, or in similar functional groups in the unclassified service, and the proportion of members of racial and ethnic, gender or handicap disability groups in the relevant labor pool.
(8) “Demotion” means the permanent appointment of an employee with permanent status in one class to a position in a lower class than the highest position currently held in which the employee has permanent status in class, unless excluded under s. ER−MRS 17.02. A demotion directed by the appointing authority shall be considered involuntary.
(9) “Discrimination” means unlawful actions or practices which constitute unequal or different treatment of, or create an unequal or different effect on an individual or group of people, on the basis of age, race, creed or religion, color, handicap disabled, sex, marital status, national origin or ancestry, political affiliation, arrest or conviction record, sexual orientation, or other bases specified under subch. II of ch. 111, Stats. (22) “Original appointment” means the appointment of a person who has not attained permanent status in class or permanent status, or the appointment of a current or former employee on a basis other than a demotion, promotion, reinstatement, or restoration or transfer basis to a classified position in which permanent status can be attained. Under s. ER−MRS 13.03, “original appointment” does not include appointment of an incumbent employee who is certified and appointed under s. 230.15 (1m) (c), Stats. (42) “Restoration” means the act of mandatory reappointment without competition of an employee or former employee under s. 230.34, 2013 Stats., s. 230.31, 230.32, or 230.33 or 230.34, Stats., to a position: (a) in the same class in which the person was previously employed; (b) in another classification to which the person would have been eligible to transfer had there been no break in employment; or (c) in a class having a lower pay rate or pay range maximum for which the person is qualified to perform the work after the customary orientation provided to newly hired workers in the position. (46) “Transfer” means the permanent appointment of an employee to a different position assigned to a class having the same or counterpart pay rate or pay range as a class to which any of the employee’s current positions is assigned. A transfer directed by the appointing authority shall be considered involuntary.
Section 2. ER 18.01 (2) (b), (2) (e), (3) (f), (4m), and (6) (a) are amended to read:
ER 18.01 (2) (b) Unclassified staff Employees of the University of Wisconsin System not identified under s. 20.923 (4), Stats.; (2) (e) One stenographer Stenographers employed by each elective constitutional officer under s. 230.08 (2) (g), Stats.; and (3) (f) Layoff prior to July 1, 2016 and subsequent restoration from layoff under s. ER−MRS 22.10 within 3 years.
(4m) “Layoff” means the termination of the services of an employee with permanent status in class from a position in a group in which a reduction in force is to be accomplished and which results in a mandatory permissive reemployment right eligibility of the affected employee to future positions.
(6) (a) Employment in the classified service in which the nature and conditions do not permit attainment of permanent status in class, for which the use of normal procedures for recruitment and examination selection are not practicable, and which is not project employment; or
Section 3. ER 18.02 (1), (2) (a), (2) (a) (Note), (2) (b) 6., (3) (a), (3) (c) 3., (5) (a), and (5) (c), are amended to read:
ER 18.02 (1) EMPLOYEES WHO EARN ANNUAL LEAVE OF ABSENCE. With the exception of limited term employees, all employees shall earn annual leave as provided in this section. Special rate tables and provisions for specific classifications may be provided in the compensation plan.
(2) COMPUTING CONTINUOUS SERVICE. (a) Only the most recent period in continuous employment status in either the unclassified service under s. 230.08 (2), Stats., employment in the University of Wisconsin System as provided in s. 230.15 (4), Stats., or as a permanent employee in the classified service or both any combination shall be counted in determining an employee’s length of continuous service. This excludes time served as a limited term employee or in those positions under s. 230.08 (2) (k), Stats., regarding youth camps and students respectively. The inclusion of time served in a project appointment is governed by s. ER 18.05 (3) and (4). (2) (a) (Note): Section 230.08 (2) (k), Stats., was repelaed repealed.
(2) (b) 6. Was an employee who left the service, returned to state employment on or after July 1, 2003, and immediately attained exempt status under the federal Fair Labor Standards Act, 29 USC 201 to 219 in a nonrepresented position, or subsequently attained such status in a nonrepresented position was an employee appointed to a career executive position under the program established under s. 230.24, Stats., or a position designated in s. 19.342 (10) (L) or 20.923 (4), (7), (8) and (9), Stats., or authorized under s. 230.08 (2) (e), Stats. and is reemployed and immediately attains exempt status under the federal Fair Labor Standards Act, 29 USC 201 to 219. This subdivision applies regardless of the duration of absence as provided under s. 230.35 (1m) (f), Stats. (3) ELIGIBILITY. (a) Pursuant to ss. 230.27 (2m) and 230.35 (1) (b), Stats., permanent and project employees in the classified service are not eligible to take annual leave during the first 6 months of the most recent period of continuous service in the classified service unless to use annual leave already accrued in an unclassified position. Continuous service credits earned during employment in the unclassified service do not count toward this 6 month qualifying period. Employees who terminate during this 6 month period are deemed to have earned annual leave credits but have not acquired eligibility to take annual leave or receive any payment for the annual leave credits earned during this 6 month period. (3) (c) 3. Annual leave for full−time, full year employees in exempt status under the federal Fair Labor Standards Act, 29 USC 201 to 219, in a nonrepresented position on or after July 1, 2003 shall be based upon accumulated continuous service and earned at the rate shown in the following table: (5) (a) Pursuant to s. 230.35 (1p) (a), Stats., employees who earn annual leave at the rate of 160, or 176, or 184 hours per year may elect to receive up to 40 hours of such leave, or prorated portion thereof, among one or more of the following options: (5) (c) The number of hours available for use under pars. (a), and (b), and (bm) shall be prorated at the pertinent annual leave rate or rates for employees who work less than 2080 hours during the calendar year.
Section 4. ER 18.04 (1) and (2) (b) 3. are amended to read:
ER 18.04 (1) EMPLOYEES WHO EARN HOLIDAYS. All employees except limited term employees earn holidays under this section. Special provisions for specific classifications may be provided in the compensation plan.
