230.32(1)(c)
(c) The employee is still qualified to perform the duties of such position.
230.32(1)(d)
(d) The employee makes application for restoration within 180 days after release from such training or services, or hospitalization continuing after discharge because of injuries or sickness resulting from such training or service.
230.32(1)(e)
(e) The circumstances of the employing agency have not changed so as to make it impossible or unreasonable to so restore such employee.
230.32(2)(a)(a) Any employee with permanent status in class who leaves state service for the reasons specified in this section and who has used the yearly vacation in anticipation of a full year's employment is presumed not to have interrupted employment as far as vacation pay is concerned, and any portion of the vacation for which the employee was paid which is unearned at the time of being called to duty may be made up upon return to state service. If the employee does not return to the state service, the employee shall within 2 years after termination of leave repay the state the amount not earned. The application of this provision is retroactive to all state employees called to active duty under
P.L. 87-117 (
10 USC 263).
230.32(2)(b)
(b) Any classified employee who was serving the probationary period, except in the capacity of a substitute, when he or she left state service shall, under this section, be restored to that point of service in the probationary period as though state employment had not been so interrupted.
230.32(2)(c)
(c) Any classified employee who had attained restoration rights as a seasonal employee when he or she left state service shall, under this section, be restored to such seasonal position or eligibility as though the service or eligibility had not been so interrupted.
230.32(3)(a)(a) Any classified employee who leaves state service and enters the armed forces of the United States shall, under this section, be granted written military leave of absence by the appointing authority. Notice of such leave from state service and the terms of any such leave shall be given in writing by the appointing authority to the director for purposes of record.
230.32(3)(b)
(b) Any classified employee who leaves state service for civilian employment in response to a specific request or order of the federal government or any of its agencies in connection with manpower redistribution and utilization shall, under this section, make written application to the appointing authority for civilian leave of absence presenting such specific request or order of the federal government as supporting evidence. Such civilian leave shall be allowed by the appointing authority and its terms, which shall conform to the rules of the director, shall be in writing. Notice of such leave from state service shall be made in writing by the appointing authority to the director for purposes of record.
230.32(3)(c)
(c) All such military or civilian leaves of absence as heretofore may have been granted are validated and shall be deemed to be sufficient and effective hereunder. Such leaves shall be recorded with the director.
230.32(4)
(4) Any person appointed to fill the position of an employee on such military or civilian leave shall be designated as a substitute or replacement employee and upon the return and reemployment of the original employee the substitute employee shall be transferred to a similar position with the same employing agency if one is available, or if not, he or she shall be eligible for reinstatement or have the right of restoration in accordance with this subchapter and the rules of the administrator. The status of any person who is appointed to fill the place of an employee on military or civilian leave under this section shall be governed by the rules of the administrator pursuant thereto.
230.32(5)
(5) The restoration of classified former employees of the state shall be governed by this section and by the rules of the administrator.
230.32(7)
(7) Any employee who is absent from state service because the employee is in active service, as defined in
s. 321.65 (1) (a), is entitled to all reemployment rights and benefits provided under
s. 321.65.
230.33
230.33
Leave of absence and pay while serving in unclassified position. Employees who have completed an original appointment probationary period in the classified service and are appointed to a position in the unclassified service shall be subject to the following provisions relative to leave of absence, restoration rights, reinstatement privileges and pay:
230.33(1)
(1) A person appointed to an unclassified position by the governor, elected officer, judicial body or by a legislative body or committee shall be granted a leave of absence without pay for the duration of the appointment and for 3 months thereafter, during which time the person has restoration rights to the former position or equivalent position in the department in which last employed in a classified position without loss of seniority. The person shall also have reinstatement privileges for 5 years following appointment to the unclassified service or for one year after termination of the unclassified appointment whichever is longer. Restoration rights and reinstatement privileges shall be forfeited if the reason for termination of the unclassified appointment would also be reason for discharge from the former position in the classified service.
230.33(1m)
(1m) A person appointed to an unclassified position by an appointing authority other than an appointing authority described under
sub. (1), when both the classified and unclassified positions are within the appointing authority's department, shall be granted a leave of absence without pay for the duration of the appointment and for 3 months thereafter, during which time the person has restoration rights to the former position or equivalent position in the department in which last employed in a classified position without loss of seniority. The person shall also have reinstatement privileges for 5 years following appointment to the unclassified service or for one year after termination of the unclassified appointment whichever is longer. Restoration rights and reinstatement privileges shall be forfeited if the reason for termination of the unclassified appointment would also be reason for discharge from the former position in the classified service.
230.33(2)
(2) A person appointed to an unclassified position by an appointing authority other than an appointing authority described under
sub. (1), to a department other than the one in which the person was a classified employee may be granted a leave of absence without pay at the option of the person's former appointing authority in accordance with the leave of absence provisions in the rules of the director. An employee granted a leave of absence shall have the same restoration rights and reinstatement privileges as under
sub. (1m). If not granted a leave of absence, the employee shall be entitled only to the reinstatement privileges under
sub. (1m).
230.33(3)
(3) Except for 3 sales representatives of prison industries and one sales manager of prison industries identified under
s. 303.01 (10), an employee appointed to a position in the unclassified service from the classified service shall be entitled to receive at least the same pay received in the classified position while serving in such unclassified position.
230.33(4)
(4) This section shall supersede any provision of law in conflict therewith but shall not diminish the rights and privileges of employees appointed to the unclassified service from the classified service prior to April 30, 1972.
230.335
230.335
Rights of unclassified division administrators. If any employee in a classified position of division administrator is made unclassified under
chapter 196, laws of 1977, and if the incumbent division administrator is not thereafter appointed to such position, or if the incumbent is hired and subsequently terminated for any reason except just cause, the incumbent division administrator shall have appointment rights, including bumping if necessary, to a comparable or lower level position which is within the agency wherein the division administrator position is located. The incumbent shall have 90 days after notice of termination to exercise such appointment rights.
230.335 History
History: 1977 c. 196.
230.337
230.337
Rights of employees: corrections or parole. If any incumbent member of the parole board in the office of the secretary of health services on January 1, 1990, in a classified position is not appointed to the parole commission created by
1989 Wisconsin Act 31, or if the incumbent member is appointed to the commission and subsequently terminated for any reason except just cause, the incumbent member shall have restoration rights and reinstatement privileges, including the right of displacement if necessary, to a position having a comparable or lower pay rate or range for which the person is qualified which is within the department of corrections, as created by
1989 Wisconsin Act 31, or the department of health services. In the case of termination, the incumbent shall have 90 days after notice of termination to exercise the rights and privileges. The rights and privileges granted under this subsection are subject to the terms of any collective bargaining agreement that covers the incumbent parole board members.
230.34
230.34
Demotion, suspension, discharge and layoff. 230.34(1)(a)(a) An employee with permanent status in class or an employee who has served with the state as an assistant district attorney for a continuous period of 12 months or more may be removed, suspended without pay, discharged, reduced in base pay or demoted only for just cause.
230.34(1)(am)
(am) If an employee fails to report for work as scheduled or to contact his or her supervisor, the appointing authority may discipline the employee. If an employee fails to report for work as scheduled, or to contact his or her supervisor for a minimum of 5 consecutive working days, the appointing authority shall consider the employee's position abandoned and may discipline the employee or treat the employee as having resigned his or her position. If the appointing authority decides to treat the position abandonment as a resignation, the appointing authority shall notify the employee in writing that the employee is being treated as having effectively resigned as of the end of the last day worked.
230.34(1)(ar)
(ar) Paragraphs (a) and
(am) apply to all employees with permanent status in class in the classified service and all employees who have served with the state as an assistant district attorney for a continuous period of 12 months or more, except that for employees specified in
s. 111.81 (7) (a) in a collective bargaining unit for which a representative is recognized or certified, or for employees specified in
s. 111.81 (7) (b) or
(c) in a collective bargaining unit for which a representative is certified, if a collective bargaining agreement is in effect covering employees in the collective bargaining unit, the determination of just cause and all aspects of the appeal procedure shall be governed by the provisions of the collective bargaining agreement.
230.34(1)(b)
(b) No suspension without pay shall be effective for more than 30 days. The appointing authority shall, at the time of any action under this section, furnish to the employee in writing the reasons for the action.
230.34(1)(c)
(c) The director shall establish guidelines for uniform application of this authority among the various agencies.
230.34(2)
(2) Employees with permanent status in class in permanent, sessional and seasonal positions in the classified service and employees serving a probationary period in such positions after promotion or transfer may be laid off because of a reduction in force due to a stoppage or lack of work or funds or owing to material changes in duties or organization but only after all original appointment probationary and limited term employees in the classes used for layoff, are terminated.
230.34(2)(a)
(a) The order of layoff of such employees may be determined by seniority or performance or a combination thereof or by other factors.
230.34(2)(b)
(b) The administrator shall promulgate rules governing layoffs and appeals therefrom and alternative procedures in lieu of layoff to include voluntary and involuntary demotion and the exercise of a displacing right to a comparable or lower class, as well as the subsequent employee right of restoration or eligibility for reinstatement.
230.34(2m)
(2m) Employees in positions funded by nonstate funds made available contingent on special employee eligibility requirements such as length of prior unemployment, specific occupational disadvantages or need for remedial work experience, shall be exempt from inclusion with the employees whose positions are in classes considered for layoff under
sub. (2). In the case of reduction in force in such nonstate funded positions, layoffs and layoff procedures established pursuant to the rules of the administrator may be limited to employees whose positions are dependent upon specific funding contingencies.
230.34(3)
(3) The appointing authority shall confer with the administrator relative to a proposed layoff a reasonable time before the effective date thereof in order to assure compliance with the rules.
230.34(4)
(4) Resignations shall be regulated by the rules of the director.
230.34 Cross-reference
Cross Reference: See also chs.
ER-MRS 17 and
22, Wis. adm. code.
230.34 Annotation
On an appeal from a discharge, the appointing officer has the burden of persuasion that the discharge was for a just cause. The facts must be established to a reasonable certainty by the greater weight or clear preponderance of the evidence. Reinke v. Personnel Board,
53 Wis. 2d 123,
191 N.W.2d 833 (1971).
230.34 Annotation
In deciding the issue of cause for termination, it is necessary to determine the specific requirements of the individual governmental position. Safransky v. Personnel Board,
62 Wis. 2d 464,
215 N.W.2d 379 (1974).
230.34 Annotation
The trial court erroneously applied evidentiary standards required in discharge cases to the review of a layoff case. Weaver v. Wisconsin Personnel Board,
71 Wis. 2d 46,
237 N.W.2d 183 (1976).
230.34 Annotation
Public employment is a property right for those given tenure by operation of civil service regulations or laws. Vorwald v. School District of River Falls,
167 Wis. 2d 549,
482 N.W.2d 93 (1992).
230.34 Annotation
An investment board employee hired in the classified service whose position was changed to unclassified by subsequent legislative action had a property interest in the position entitling him to continued civil service protections after the reclassification. Bahr v. State Investment Bd.
186 Wis. 2d 379,
521 N.W.2d 152 (Ct. App. 1994).
230.34 Annotation
Sub. (1) provides a permanent civil service employee with a property interest in employment requiring the appointing authority to provide notice to the employee prior to any disciplinary action. The employee is entitled to a hearing to address the employer's reasons for any disciplinary action. An employer at a hearing cannot introduce evidence of subsequent misconduct without adequate notice and hearing. Board of Regents of the University of Wisconsin System, v. Wisconsin Personnel Commission, 2002 WI 79,
254 Wis. 2d 148,
646 N.W.2d 759,
01-1899.
230.35
230.35
State office hours; standard workweek; leaves of absence; holidays. 230.35(1)(a)(a) Except as provided in
subs. (1m),
(1r), and
(1s), appointing authorities shall grant to each person in their employ, except employees excluded from coverage under this subsection by the department by rule and limited-term employees, based on accumulated continuous state service, annual leave of absence without loss of pay at the rate of:
230.35(1)(a)1.
1. One hundred four hours each year for a full year of service during the first 5 years of service;
230.35(1)(a)2.
2. One hundred forty-four hours each year for a full year of service during the next 5 years of service;
230.35(1)(a)2m.
2m. One hundred sixty hours each year for a full year of service during the next 5 years of service;
230.35(1)(a)3.
3. One hundred eighty-four hours each year for a full year of service during the next 5 years of service;
230.35(1)(a)3m.
3m. Two hundred hours each year for a full year of service during the next 5 years of service;
230.35(1)(a)4.
4. Two hundred sixteen hours each year for a full year of service after 25 years of service.
230.35(1)(b)
(b) An employee, with the approval of his or her appointing authority, may anticipate the annual leave which he or she could earn during the current calendar year except that no employee shall be eligible to take annual leave until he or she has completed the first 6 months of a probationary period for an original appointment.
230.35(1)(c)
(c) When the rate of annual leave changes during the 5th, 10th, 15th, 20th or 25th calendar year, the annual leave for that year shall be prorated.
230.35(1)(d)
(d) Annual leaves of absence shall not be cumulative except under
sub. (1p) and except that unused annual leave shall, subject to the rules of the director, be used in the year following the one in which it was earned, but no employee shall lose any unused annual leave because the employee's work responsibilities prevented the usage of the unused annual leave during the first 6 months of the year following the year in which it was earned.
230.35(1)(e)
(e) Permanent classified employees, permanent part-time employees and seasonal employees with permanent seasonal status in class who are regularly employed for less than 12 months out of a year shall be granted proportional annual leave consistent with
par. (a). These employees, with the approval of their appointing authority, may anticipate the vacation which they will earn during their current period of employment.
230.35(1)(f)
(f) An employee under this subsection earns annual leave any time he or she is on temporary layoff for a period not to exceed 20 working days.
230.35(1)(g)
(g) The continuous service of an employee eligible for annual leave shall not be considered interrupted if the employee either:
230.35(1)(g)1.
1. Was on an approved leave of absence, including but not limited to military leave, leave to serve in the unclassified service, leave to participate in providing specialized disaster relief services, leave for absence due to injury or illness arising out of state employment and covered by
ch. 102; or
230.35(1)(g)2.
2. Left the service through resignation or layoff and is reemployed or recalled within 5 years.
230.35(1)(gm)
(gm) Each employee of the state on October 17, 1971 shall be granted credit towards accumulated continuous service for all service in Wisconsin as a national guard technician which has not been credited under any other provision of this section.
230.35(1)(h)
(h) The length of time between an employee's resignation and reemployment under
par. (g) 2. shall not be counted in computing years of continuous service under this subsection. Employees subject to
par. (e) shall be deemed to have completed one full year of service for each such seasonal, sessional or other part-time annual period of service in computing years of continuous service under this subsection.
230.35(1)(j)
(j) The appointing authority shall respect the wishes of the eligible employees as to the time of taking their annual leave insofar as the needs of the service will permit.
230.35(1)(m)
(m) Payment for any unused authorized leave to which an employee is entitled upon termination, shall be made in a separate and distinct amount.
230.35(1m)(bt)(bt) An employee who is not subject to the minimum wage and overtime requirements under the federal Fair Labor Standards Act,
29 USC 201 to
219, shall be entitled to annual leave of absence without loss of pay based upon accumulated continuous state service at the rate of:
230.35(1m)(bt)1.
1. 120 hours each year for a full year of service during the first 5 years of service;
230.35(1m)(bt)2.
2. 160 hours each year for a full year of service during the next 5 years of service;
230.35(1m)(bt)3.
3. 176 hours each year for a full year of service during the next 5 years of service;
230.35(1m)(bt)4.
4. 200 hours each year for a full year of service during the next 5 years of service;
230.35(1m)(bt)5.
5. 216 hours each year for a full year of service after 20 years of service.
230.35(1m)(e)
(e) Employees who previously were covered under
sub. (1) (a), or other statutory provision regarding annual leave, who become subject to this subsection shall have their present continuous service credits for annual leave purposes applied to the career executive schedule at the appropriate rate. In no case shall the employee receive a reduction in annual leave hours earned by such change in schedules.
230.35(1m)(eb)
(eb) An employee under this subsection earns annual leave any time he or she is on temporary layoff for a period not to exceed 20 working days.
230.35(1m)(f)
(f) The continuous service of an employee eligible for annual leave under this subsection shall not be considered interrupted if the employee was on an approved leave of absence to participate in providing specialized disaster relief services or if the employee leaves the service and is reemployed by the state in another position covered under this subsection. If reemployed in a position not covered under this subsection the employee shall be required to meet the continuous service requirements of
sub. (1) (g). This paragraph applies to all persons who are employees covered under this subsection on or after July 1, 1973.
230.35(1p)(a)(a) Employees at the 160-hour, 176-hour, or 184-hour rate under
sub. (1) or
(1m) may, in the year earned, elect to receive not more than 40 of those hours of earned annual leave as credit for termination leave or as accumulated sabbatical leave.
230.35(1p)(b)
(b) Employees at the 200-hour rate under
sub. (1) or
(1m) may, in the year earned, elect to receive not more than 80 of those hours of earned annual leave among one or more of these options:
230.35(1p)(bm)
(bm) Employees at the 216-hour rate under
sub. (1) or
(1m) may, in the year earned, elect to receive not more than 120 of those hours of earned annual leave among one or more of these options:
230.35(1p)(c)
(c) Employees with less than the 160-hour rate under
sub. (1) or
(1m) who have accumulated, at any time during the employee's continuous state service, a minimum of 520 hours of sick leave may elect to receive not more than 40 hours of earned annual leave as credit for termination leave or as accumulated sabbatical leave or both. An election under this paragraph shall be made in the year in which the annual leave is earned.
