PROPOSED ORDER of the DEPARTMENT OF ADMINISTRATION
The Wisconsin Department of Administration proposes an order to repeal Wis. Admin. Code ss. ER 18.02 (2) (a) (Note), 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), ss. ER-MRS 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 (3), 22.11 (1m), 30.03 (2), and 30.11 (3); to renumber and amend ss. ER-MRS 15.04, 22.07, 22.08 (2) (a) 2., and 22.08 (2) (a) 3.; to consolidate, renumber and amend ss. ER-MRS 12.02 (intro.) and 12.02 (3), 22.08 (2) (a) (intro.), and 22.08 (2) (a) 1.; to amend ss. ER 1.02 (2) (b), 1.02 (9), 1.02 (22), 1.02 (42), 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) (b) 6., 18.02 (3) (a), 18.02 (3) (c) 3. (intro.), 18.02 (5) (a) (intro.), 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 (intro.), 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), 46.11, ss. ER-MRS 1.02 (18), 1.02 (30) (intro.), ER-MRS ch. 6 (title), ss. ER-MRS 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 (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), ss. ER-MRS 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) (intro.), 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, 15.07 (1), 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 (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 ss. ER 43.02 (5m) (a), 43.02 (5m) (b), 43.02 (5m)(c), 46.09 (2), ss. ER-MRS 22.10, 22.11 (2), 30.11 (title); and to create ss. ER 1.02 (13g), 1.02 (13r), 18.18, 43.02 (6m) (e), 43.02 (6m) (f), 46.03 (2) (hg), 46.03 (2) (hr), ss. ER-MRS 1.02 (10), 1.02 (10m), 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:
Sections 227.11 (2), 230.04 (5), 230.04 (14),230.05 (5), 230.15 (4),230.17 (1), 230.21 (1), 230.213, 230.24 (1), 230.26 (1), 230.27 (2), 230.28 (4), 230.29, 230.32 (5), 230.34 (2) (b), 230.34 (4), 230.35 (1), 230.35 (1m)(f), and 230.35 (2), Stats. 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. ss. 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. s. 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. In addition to the general authority provided in ss. 230.04 (5) and 227.11(2), Wis. Stats., the administrator has specific statutory authority to promulgate rules on the following: employee grievances based on conditions of employment (s. 230.04 (14), Wis. Stats.); resignation (s. 230.34 (4), Wis. Stats.); coverage of employees for the purposed of absences (s. 230.35 (1) , Stats.); continuous service (s. 230.35 (1m)(f), Wis. Stats.); and restoration of unused sick leave and leaves of absence (s. 230.35 (2), Wis. Stats.). The director, in addition to the general authority provided in ss. 230.05 (5) and 227.11(2), Wis. Stats., is granted specific statutory authority to promulgate rules on the following: continuous service for University of Wisconsin employees (s. 230.15 (4), Wis. Stats.); refusal to certify applicants (s. 230.17 (1), Wis. Stats.); recruitment and selection for unskilled labor and service positions (s. 230.21 (1), Wis. Stats.); recruitment and selection for certain corrections positions (s. 230.213, Wis. Stats.); administration of the career executive program (s. 230.24 (1), Wis. Stats.); recruitment and selection of limited term employees (§ 230.26 (1), Stats.); selection and appointments to project positions (s. 230.27 (2), Wis. Stats.); duration of permissive probationary periods (s. 230.28 (4), Wis. Stats.); authorization for transfers (s. 230.29, Wis. Stats.); restoration following military leave (s. 230.32 (5), Wis. Stats.); and layoffs, layoff appeals, alternatives to layoff, and reinstatement following layoff (s 230.34 (2) (b), Wis. Stats.). 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 original appointment and restoration. Definitions of involuntary demotion and involuntary transfer were created. 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 original appointment and restoration. Definitions of involuntary demotion and involuntary transfer were created. 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:
Each of the four-comparison states have a form of civil service (very similar to Wisconsin’s original design), traditional collective bargaining, and mechanisms available for each of the topics presented for modification by the Division of Personnel Management (DPM). Based on the rule submission from the DPM, the topics of comparison include: 1) recruitment and selection, 2) probation, 3) grievances, and 4) layoff. To set the context of the comparison, the rules for Wisconsin are summarized first and then followed with a summary comparison of each state by topic.
Recruitment: Selection Process. Wisconsin has a civil service system covering all classified employees of the State and overseen by the Director of the Bureau of Merit Recruitment and Selection (BMRS). With the modifications from Act 150, applicants to civil service positions now apply with a resume and other selection materials as required by the Director. Act 150 eliminated any form of closed competition (service wide transfer and promotions) which means all advertised positions are available to all members of the public. (Note: agencies are permitted an internal transfer process prior to posting a vacancy for filling.) Positions must be advertised for at least 10 days and all materials are evaluated to determine eligibility. Eligible candidates are placed on a register which can remain active for up to three years. Due to the ease of the recruitment process and the competitive labor market, the current code submission stipulates a standard of one year but allows for two, one-year renewals if needed. Human resources staff draw names from the register to make a certification list which is provided to supervisors for interview. The entire hiring process is to be completed in 60 days – 30 days from the appointing authority’s request to fill until the register is created and 30 days from the certification until a candidate is hired.
Veterans. Under Wisconsin law, veterans, or their spouses, with certain statuses or war experiences are given additional preference on the list as are females and minorities for positions which show statistical underutilization. Wisconsin law also permits non-competitive hiring of veterans with at least a 30% disability.
