The Wisconsin Department of Administration proposes an order to repeal Wis. Admin. Code §§ ER 18.15 (1) (c) (Note),43.02 (3), 46.03 (Note), 46.06 (2) (c), 46.06 (4), 46.06 (6), 46.065, 46.09 (3), ER-MRS ss. 6.08 (1) (c), 8.22 (Note), 11.02 (2), 11.04 (1) (e), 12.02 (1), 12.02 (2), 14.05, 22.04 (1), 22.04 (2), 22.04 (3), 22.08 (1) (a) 1., 22.08 (1) (a) 2., 22.08 (1) (b) 3., 22.08 (1) (c), 22.08 (2) (b) (intro), 22.08 (2) (b) 1., 22.08 (2) (b) 2., 22.08 (2) (b) (3), 22.11 (1m), 30.03 (2), and 30.11 (3); to renumber and amend ER-MRS ss. 15.04, 22.07, 22.08 (2) (a) 2., and 22.08 (2) (a) 3.; to consolidate, renumber and amend ER-MRS ss. 12.02 (intro) and 12.02 (3), 22.08 (2) (a) (intro), and 22.08 (2) (a) 1.; to amend ER ss. 1.02 (2)(b), 1.02 (8), 1.02 (9), 1.02 (22), 1.02 (42), 1.02 (46), 18.01 (2) (b), 18.01 (2) (e), 18.01 (3) (f), 18.01 (4m), 18.01 (6) (a), 18.02 (1), 18.02 (2) (a), 18.02 (2) (a) (Note), 18.02 (2) (b) 6., 18.02 (3) (a), 18.02 (3) (c) 3., 18.02 (5) (a), 18.02 (5) (c), 18.04 (1), 18.04 (2) (b) 3., 18.05 (2) (b), 18.08 (1), 18.12 (title), 18.12, 18.15 (1) (c), 21.01 (1), 21.03 (2) (intro), 43.01, 43.02 (2) (c), 43.02 (5m) (intro), 43.02 (6m) (intro), 43.02 (6m) (a), 43.02 (6m) (b), 43.02 (6m) (c), 43.02 (6m) (d), 43.04 (2), 43.08 (title), 43.08, 46.01 (1), 46.03 (2) (b), 46.03 (2) (c), 46.03 (2) (d), 46.04 (1), 46.05 (4), 46.06 (1), 46.06 (2) (a), 46.06 (2) (b) 1., 46.06 (2) (b) 2, 46.06 (7), 46.07 (1) (intro), 46.07 (1) (a), 46.07 (2), 46.08 (2), 46.08 (3), 46.09 (1), 46.09 (2), 46.11, ER-MRS ss. 1.02 (5), 1.02 (18), 1.02 (30), 1.02 (33), ER-MRS ch. 6 (title), ER-MRS ss. 6.01, 6.027, 6.03, 6.04, 6.05 (title), 6.05 (1), 6.05 (2), 6.05 (3) (intro), 6.05 (3) (b), 6.05 (3) (c), 6.05 (3) (d), 6.07 (title), 6.07, 6.08 (title), 6.08 (1) (intro), 6.08 (1) (a), 6.08 (1) (b), 6.08 (2) (intro), 6.08 (2) (a), 6.08 (2) (c), 6.08 (2) (d), 6.08 (2) (f), 6.08 (3) (intro), 6.08 (3) (a), 6.08 (3) (c), 6.09 (title), 6.09 (1), 6.09 (2), 6.095 (2), 6.10 (intro), 6.10 (2), 6.10 (4), 6.10 (7), 6.10 (10), 6.12 (2), ER-MRS ch. 7 (title), ER-MRS ss. 7.01, 8.01, 8.04 (2), 8.05, 8.06, 8.20 (2), 8.21 (1), 8.24 (2), 10.04 (2), 11.03 (1) (title), 11.03 (2), 11.04 (1) (b), 11.04 (1) (h), 11.05, 12.04 (2), 12.06 (1), 12.06 (3), 12.07, 12.08, 13.02 (intro), 13.02 (2), 13.02 (4), 13.02 (5), 13.04 (1) (a), 13.04 (3), 13.05 (1) (title), 13.05 (1), 13.05 (2) (title), 13.05 (2), 13.05 (3), 14.015, 14.02 (5), 14.02 (6), 14.03 (2), 15.02, 15.03, 15.08, 16.025 (2) (intro), 16.025 (3), 16.03 (1) (title), 16.03 (3), 16.03 (5) (title), 16.03 (5), 16.035 (1), 16.04 (1) (b), 16.04 (1) (c), 16.04 (2), 17.04 (3) (b), 17.04 (3) (d), 17.04 (4) (a), 22.025 (2), 22.03 (2), 22.035 (1) (intro), 22.04 (intro), 22.06 (1), 22.06 (2), 22.06 (3), 22.06 (4), 22.08 (intro), 22.08 (1) (a) (intro), 22.08 (2) (title), 22.08 (2) (intro), 22.09 (1), 22.09 (2) (c), 22.09 (2) (e), 22.11 (2m), 27.02 (5), 27.03 (1), 27.05 (3), 27.06 (4), 27.06 (5), 30.06 (1), 30.06 (3), 30.07 (2), 30.08, 30.10 (1), 30.10 (2), 30.105, 30.11 (title), 30.11 (1) (intro), 30.11 (1) (a), 30.11 (1) (b), 30.11 (2), 32.01, 32.02, 32.03 (2), 34.08 (3), 34.08 (4); to repeal and recreate ER 43.02 (5m) (a), 43.02 (5m) (b), 43.02 (5m)(c), ER-MRS 22.10, 22.11 (2); and to create ER 18.18, 43.02 (2) (d), 43.02 (6m) (e), 43.02 (6m) (f), 46.03 (2) (hg), 46.03 (2) (hr), ER-MRS ss. 6.09 (1m), 10.035, 10.06, 15.04 (2), 16.025 (2) (a), 16.025 (2) (b), 16.035 (3m), 22.07 (2), 22.11 (1), 30.07 (3); relating to State Civil Service Definitions, Absences, Resignation, Affirmative Action And Equal Opportunity, Grievance, Merit Recruitment & Selection, Layoff, Probation, Personnel Transactions, Career Executive Employment, Limited Term Employment, and Project Employment provisions. Rule Analysis Prepared by the Department of Administration
1. Citations to statutes interpreted:
Sections 230.01, 230.02, 230.03, 230.04, 230.042, 230.047, 230.05, 230.06, 230.08, 230.12, 230.13, 230.14, 230.15, 230.16, 230.17, 230.18, 230.19, 230.20, 230.21, 230.213, 230.24, 230.25, 230.26, 230.27, 230.275, 230.28, 230.29, 230.30, 230.31, 230.32, 230.33, 230.34, 230.35, 230.37, 230.41, 230.43, 230.44, 230.445, 230.45, 230.83, and 230.85, Stats. 2. Citations to statutory authority:
3. Explanation of the agency’s statutory authority to promulgate the rule under the statutes cited:
The Department of Administration, Division of Personnel Management is responsible for the promulgation of rules relating to the administration of the division and the effective operation of subch. II of Ch. 230 of the Wisconsin Statutes. The proposed rule changes are authorized by Wis. Stat. §§ 230.04(5), and 230.05(5), being necessary for performance of duties assigned to the administrator and the director and necessary for the effective operation of subch. II of ch. 230 of the Wisconsin Statutes, as amended by 2015 Wisconsin Act 150 and current practice. Paragraphs (a) and (b) of Wisconsin Stat.§ 227.11(2) also authorize the department to prescribe forms and procedures and promulgate rules interpreting the provisions of ch. 230 to the extent necessary to effectuate the purpose of the statute. 4. Related statutes or rules:
Sections 7.33, 20.923, 40.02, 111.31 to 111.395, 111.81, 111.91, 230.01, 230.02, 230.03, 230.04, 230.042, 230.047, 230.05, 230.06, 230.08, 230.12, 230.13, 230.14, 230.15, 230.16, 230.17, 230.18, 230.19, 230.20, 230.21, 230.213, 230.22, 230.24, 230.25, 230.26, 230.27, 230.275, 230.28, 230.29, 230.30, 230.31, 230.32, 230.33, 230.34, 230.36, 230.37, 230.41, 230.43, 230.44, 230.445, 230.45, 230.83, and 230.85, Stats. Chapters ER 1, 10, 18, 21, 29, 30, 34, 43, 44, 46, 47 and ER-MRS 1, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 22, 24, 27, 30. 32, and 34, relating to application of provisions of the civil service law, subch. II of ch. 230, Stats. 5. Brief plain language summary of the proposed rule:
Changes to ch. ER 1 governing definitions to update definitions of demotion, original appointment, restoration, and transfer. Changes to ch. ER 18 governing absences to provide consistency with statute and the State of Wisconsin Compensation Plan. Removed references to restoration and examination, updated applicability of provisions to University of Wisconsin employees, and adjusted timelines for leave to reflect changes in probationary periods. Changes to ch. ER 21 governing resignation to update the definition of leave credits as related to resignation. The parameters of job abandonment updated to align the rule with statute. Changes to ch. ER 43 governing affirmative action and equal opportunity to provide consistency with terminology used in statutes and federal regulations. Changes to ch. ER 46 governing grievance procedures to provide consistency with statute. 2015 Wisconsin Act 150 created grievance procedures for adverse employment decisions in s. 230.445, Wis. Stats. The proposed rule changes update state employee grievance procedures and time limits for grievances filed relating to conditions of employment to match those for adverse employment decisions. Changes to ch. ER-MRS 1 governing definitions to update definitions of demotion, original appointment, restoration, and transfer. Changes to ch. ER-MRS 6 governing recruitment and selection to replace examination with competitive procedures to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 7 governing appointing procedures for unskilled labor and service classifications to replace the term examination to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 8 governing procedures for corrections and entry professional positions to replace the term examination and remove reference to promotional and servicewide recruitments to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. References to Department of Health Services also removed to align rule with current statute. Changes to ch. ER-MRS 10 governing limited term appointments to provide for exclusions and violations to align the rule with statute and current practice. Changes to ch. ER-MRS 11 governing employment registers to remove promotional registers to align the rule with current statute and update management of registers to account for new statutory timelines for recruitment resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 12 governing certification and appointment to remove certification from promotional and restoration registers and to replace examination with competitive procedures to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Add reference to exceptional hiring methods and non-competitive appointment statute provisions. Changes to ch. ER-MRS 13 governing probationary periods to provide consistency with probationary changes in 2015 Wisconsin Act 150 changes and current practice. All probationary periods will have a minimum duration of one year. Original and promotional probations may be extended for up to 12 months. No waiver is allowed for probationary periods for supervisory positions. Updating extension of a probation due to absence from employment to be for 348 hours as a result of the base probationary period being twice as long as prior probations. Mandatory extension due to absence for required probations only. Changes to ch. ER-MRS 14 governing promotion to provide that promotional appointments are a result of open competition and remove reinstatement language to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Removing duplicate language for pay on new promotion. Changes to ch. ER-MRS 15 governing transfer to add language for authorization and probation related to involuntary transfers to differentiate from voluntary transfers. Changes to ch. ER-MRS 16 governing reinstatement and restoration to update period of eligibility and conditions for reinstatement and restoration to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 17 governing demotion to remove reference to restoration and clarify the assignment of a probationary period for voluntary demotion. Changes to ch. ER-MRS 22 governing layoff procedures to specify how the order of layoff is to be determined to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Definition of reasonable offer updated to reflect current practices. Alternatives to termination from the service as a result of layoff were modified to remove difference of within or between employing unit movements for transfers and demotions. Displacement as an alternative to layoff and restoration following layoff after July 1, 2016 were eliminated and reinstatement eligibility was updated to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 27 governing exceptional methods and kinds of employment to replace examination with selection procedures to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 30 governing career executive employment to provide consistency with recruitment, selection, probation, reinstatement and restoration changes made elsewhere and to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Waiver of any portion of a trial period was eliminated. Added permissive probation for movement between agencies of career executive employees who have completed a trial period. Clarified career executive reassignment and prohibited reassignment between agencies while serving a trial period. Updated technical terminology to remove restoration language. Changes to ch. ER-MRS 32 governing acting assignments to update procedures to align rule with current practices. Changes to ch. ER-MRS 34 governing project appointments to update employment eligibilities to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. 6. Summary of, and preliminary comparison with, any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
There are no existing or proposed federal regulations that directly pertain to this proposed rule.
7. Comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota:
Illinois
The state of Illinois is a merit based civil service system and allows for collective bargaining.
Recruitment – The Director of Central Management Services (CMS) is responsible for the administration of the Personnel Code. (20 ILCS 415/3) “The Director shall conduct open competitive and promotional examinations to determine the relative fitness of applicants.” (80 ILADC 302.10) Vacancies in Illinois must initially be filled by available persons on a reemployment list. (80 ILADC 302.10(b)) Subsequently, positions may be filled by open competition, promotion, demotion, transfer, or reinstatement. (80 ILADC 302.90) Reinstatement is allowed for permanent employees who left employment in good standing or have been laid off and there is no time limit on such eligibility. (80 ILADC 302.610) Reinstatement in Wisconsin has now been limited to employees that are laid off and only for a period of three years. Illinois rules provide for veterans’ preference through points added to the final grades of qualified applicants and verification is required prior to the points being applied. (80 ILADC 302.30) Wisconsin no longer assigns points to veterans but rather engages in expanded certification practices to include veterans on a list and verification is only required at the point of hire if the applicant was certified as a result of veterans’ preference. The Director of CMS may refuse to consider applicants or remove applicants from a list of eligibles for similar reasons available in Wisconsin. (80 ILADC 302.130) Illinois rules do not establish a time requirement to respond to an interview offer, whereas the proposed Wisconsin rules would provide for 2 working days to respond to an offer to participate in subsequent steps of the selection process. Performance records of employees are considered for all personnel transactions. (80 ILADC 302.260)
Probation – Illinois rules require a 6-month probationary period upon entry into state service, rehire when it is considered a new period of continuous service, or when appointed from an open competitive eligibility list, regardless of current status as an employee. (80 ILADC 302.300) Illinois rules also provide for a 4-month probationary period for promotion and reinstatement. (80 ILADC 302.300) The proposed Wisconsin rules require a 12-month probationary period for original appointments and promotional appointments and provide for 12-month permissive probations upon certain transfers or demotions. An employee in Illinois who is absent 15 consecutive calendar days will have their probationary period extended. (80 ILADC 302.300) Wisconsin rules, as proposed, provide for mandatory extension of probation when 348 hours of absences occur during an employee’s 12-month probation. In Illinois, an employee who fails a promotional probation, other than for just cause, is returned to the former class, regardless of whether the promotion occurred within the same agency. (80 ILADC 302.340)
Grievances – Illinois provides a grievance process for employees that is differentiated from the grievance process in Wisconsin (80 ILADC 303.20). The Illinois process requires initial submission of the grievance orally to the employee’s immediate supervisor, followed by written submission to the next level supervisor, which is not provided for in the Wisconsin rules. Steps 3 and 4 in the Illinois process is the submission to the head of agency, followed by appeal to the Director of CMS similar to steps 1 and 2 provided in Wisconsin rules. Illinois provides that the Director of CMS will appoint a grievance committee to hear the grievance and provide a recommendation to the Director who will then review and make the final determination. (80 ILADC 303.30) “Probationary terminations, charges seeking discharge, demotion or suspension totaling more than 30 days in any 12-month period of certified employees, appeals of allocation of duties or transfers from one geographical area in the State to another are not subject to grievance procedure.” (80 ILADC 303.10 (b)) Such appeals, other than for probationary terminations, are appealed to the Illinois Civil Service Commission. (80 ILADC 301.30 (c), 302.430, 302.496, and 30.750) Wisconsin requires that all grievances must first go to the appointing authority.
Layoff – Like Wisconsin, the Illinois rules provide procedures for implementing a layoff of employees within an organizational unit “based on class, option, agency, county or other designation.” (80 ILADC 302.520) All temporary, provisional, and probationary employees, in such order, must be released prior to layoff of a permanent employee. (80 ILADC 302.530) There is no requirement in Wisconsin to release any type of employee prior to initiating layoff. A plan must be submitted to the Director of CMS for approval in advance of the effective date. The order of layoff is generally based on continuous service but performance may be considered for adjustment. (80 ILADC 302.530) Conversely, layoffs in Wisconsin are primarily based on performance with consideration given to continuous service, discipline and special skills or abilities to adjust the order of layoff. The notice requirement in the Illinois rules provides for 30 days compared to 60 calendar days in Wisconsin. (80 ILADC 302.540) Illinois requires that employees subject to layoff be offered “any vacant positions for the same title held by that employee within the same agency and county from which the employee is subject to layoff and within two additional alternate counties designated by the employee.” (80 ILADC 302.545) Other transfers and demotions may be requested by the employee in writing prior to the effective date of the layoff. (80 ILADC 302.550) Contrasted to Wisconsin, Illinois rules provide an employee who has been laid off shall be placed on a reemployment list for mandatory recall for up to 3 years. (80 ILADC 302.570, 302.580, and 302.590) 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.
Iowa
