Chapter 230

230.28(3) (3) If an employee is removed from a position during the probationary period, and the director determines that the person is suitable for appointment to another position, the person’s name may be restored to the list from which it was certified.

230.28(4) (4) A person reinstated in an employing unit other than one in which the person previously served in permanent status in the class in which the person is being reinstated, an employee who transfers from one employing unit to another, an employee who moves to a different employing unit in conjunction with a voluntary demotion, and a person who had not obtained permanent status in class in a supervisory or management position prior to appointment to another supervisory or management position, may be required by the appointing authority to serve a probationary period. Provisions for the duration of such probationary period shall be provided in the rules of the director.

230.28(5) (5) An employee whose position is classified as “trainee” shall be on a probationary period for the duration of the training program and may be separated during that period without the right of appeal, at the discretion of the appointing authority. Upon qualifying for the objective classification, the employee shall serve a probationary period as specified in sub. (1).

230.28 History History: 1971 c. 270, 336; 1977 c. 196 ss. 52, 117, 130 (4), (5), 131; 1977 c. 273; Stats. 1977 s. 230.28; 1979 c. 221; 1983 a. 402; 1989 a. 144; 1997 a. 112; 1999 a. 9; 2013 a. 123; 2015 a. 55, 150.

230.28 Cross-reference Cross-reference: See also ch. ER-MRS 13, Wis. adm. code.

230.28 Annotation The discharge of a probationary employee is not appealable as part of the “hiring process” under s. 230.44 (1) (d). Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (1981).

230.28 Annotation An employee who has acquired permanent status in class who is promoted within the same agency, does not lose permanent status in the prior position while in probationary status in the new position. If termination from the new position occurs, the employee must be reinstated in the former position. The required due process to be afforded in a disciplinary action to an employee with a protected property interest in a position is discussed. Arneson v. Jezwinski, 225 Wis. 2d 371, 592 N.W.2d 606 (1999), 95-1592.

230.28 Annotation An employee serving a promotional probationary period can be removed from that position without the right to appeal. Statutory rights extended to an employee with permanent status protect the employee by requiring that the employee be returned to the pre-promotion position, rather than completely terminated from state service. Any discipline affecting permanent status in class in the pre-promotion position can be maintained only for just cause. Kriska v. WERC, 2008 WI App 13, 307 Wis. 2d 312, 745 N.W.2d 688, 07-0813.

230.29 230.29 Transfers. A transfer may be made from one position to another only if specifically authorized by the director.

230.29 History History: 1971 c. 270; 1977 c. 196 ss. 54, 130 (5); Stats. 1977 s. 230.29; 1995 a. 27; 2011 a. 10; 2015 a. 55.

230.29 Cross-reference Cross-reference: See also ch. ER-MRS 15, Wis. adm. code.

230.30 230.30 Employing units; establishment and revision.

230.30(1) (1) Each agency shall constitute an employing unit for purposes of personnel transactions, except where appropriate functional, organizational or geographic breakdowns exist within the agency and except as provided in sub. (2). These breakdowns may constitute a separate employing unit for one or more types of personnel transactions under an overall employing unit plan if requested by the appointing authority of that agency and approved by the director. If the director determines, after conferring with the appointing authority of the employing agency, that an employing unit is or has become inappropriate to carry out sound personnel management practices due to factors including, but not limited to, the size or isolated location of portions of the employing unit, the director may revise the employing unit structure of the agency to effect the remedy required.

230.30(2) (2) The division of gaming in the department of administration shall constitute a separate employing unit for purposes of personnel transactions.

230.30 History History: 1979 c. 221; 1997 a. 27; 2015 a. 55.

230.31 230.31 Restoration of employment and reinstatement privileges.

230.31(1) (1) Any person who has held a position and obtained permanent status in a class under the civil service law and rules and who has separated from the service before July 1, 2016, without any delinquency or misconduct on his or her part but owing to reasons of economy or otherwise shall be granted the following considerations:

230.31(1)(a) (a) For a 5-year period from the date of separation, the person shall be eligible for reinstatement in a position having a comparable or lower pay rate or range for which such person is qualified.

230.31(1)(b) (b) For a 3-year period from the date of separation, if on layoff status, the person shall be placed, in inverse order of layoff, on an appropriate mandatory restoration register for the unit used for layoff and on a restoration register for the agency from which the person was laid off. Use of such registers shall be subject to the rules of the director.

230.31(3) (3) Any person who has held a position and obtained permanent status in class under the civil service law and rules and who is laid off on or after July 1, 2016, is eligible for reinstatement in a position having a comparable or lower pay rate or range for which such person is qualified for a 3-year period from the date of the layoff.

230.31 History History: 1971 c. 270 s. 60; Stats. 1971 s. 16.25; 1977 c. 196 ss. 56, 130 (5); 1977 c. 273, 418; Stats. 1977 s. 230.31; 1979 c. 32; 1981 c. 140; 1997 a. 307; 2015 a. 55, 150.

230.31 Cross-reference Cross-reference: See also ch. ER-MRS 16, Wis. adm. code.

230.315 230.315 Differential pay, sick leave, and annual leave for state employees activated into certain federal service.

230.315(1) (1) Subject to sub. (3), a state employee who is activated to serve on military duty in the U.S. armed forces shall be paid his or her state salary, less any military pay and housing allowances that he or she receives, during the period in which the employee is on military duty in the U.S. armed forces, unless the military pay and housing allowances equal or exceed his or her state salary, and shall accumulate sick leave and paid annual leave of absence as though no interruption in service has occurred if all of the following apply:

230.315(1)(a) (a) On or after January 1, 2003, the employee is activated to serve, or is serving, on military duty in the U.S. armed forces, other than for training purposes.

230.315(1)(b) (b) On the date on which he or she is activated, the employee is either a member of the Wisconsin national guard or a member of a reserve component of the U.S. armed forces or is recalled to active military duty from inactive reserve status.

230.315(1)(c) (c) The employee has received a military leave of absence under s. 230.32 (3) (a) or 230.35 (3), under a collective bargaining agreement under subch. V of ch. 111, or under rules promulgated by the division or is eligible for reemployment with the state under s. 321.64 after completion of his or her service in the U.S. armed forces.

230.315(2) (2) Subject to sub. (3), on or after January 1, 2003, a state employee who is required to serve, or who is serving, in the U.S. public health service and who is on detail with any of the U.S. armed forces shall be paid his or her state salary, less any federal pay and housing allowances that he or she receives, during the period in which the employee is detailed for duty with any of the U.S. armed forces, unless the federal pay and housing allowances equal or exceed his or her state salary, and shall accumulate sick leave and paid annual leave of absence as though no interruption in service has occurred.

230.315(3) (3) 

230.315(3)(a) (a) Except as provided in par. (b), beginning on the day in which a state employee is activated to serve on military duty in the U.S. armed forces or to serve in the U.S. public health service, the employee shall receive the pay and benefits authorized under sub. (1) or (2) for a period of not more than 179 days. If a state employee is eligible to receive pay and benefits for military service under s. 230.35 (3) (a) or a collective bargaining agreement under subch. V of ch. 111, the state employee shall become eligible to receive the pay and benefits authorized under sub. (1) or (2) only after receiving the pay and benefits for military service under s. 230.35 (3) (a) or a collective bargaining agreement under subch. V of ch. 111.

230.315(3)(b) (b) The governor, by executive order, may extend the period that an employee receives the pay and benefits under par. (a) up to a period of 2 years from the date on which the person is activated to serve on military duty in the U.S. armed forces or to serve in the U.S. public health service. The governor may make up to 3 additional extensions under this paragraph, each of which may not exceed a period of 2 years. Any extension granted by the governor under this paragraph may apply to an individual employee or to a group of employees, as determined by the governor.

230.315(3)(c) (c) No employee who is eligible to receive the pay and benefits under sub. (1) or (2) may receive the pay or benefits for any service in the U.S. armed forces or the U.S. public health service for any such service before January 1, 2003.

230.315(4) (4) An appointing authority shall permit a state employee who is eligible to receive the pay and benefits authorized under sub. (1) or (2) and who has completed his or her duty with the U.S. armed forces or the U.S. public health service to use up to 160 hours of accumulated paid leave before the employee resumes employment with the state. Any accumulated paid leave that is used under this subsection must be used no later than 30 days after the employee has completed his or her duty with the U.S. armed forces or the U.S. public health service. If, after using any such accumulated paid leave, an employee has any accumulated paid leave remaining that was accumulated while on duty with the U.S. armed forces or the U.S. public health service, the appointing authority shall permit the employee to carry over the leave into the next year for use in that year.

230.315 History History: 2003 a. 162; 2005 a. 22, 469; 2007 a. 200; 2015 a. 55.

230.32 230.32 Restoration after military leave.

230.32(1) (1) Any classified employee of this state, except a limited term employee, who enlists, is ordered or is inducted into active service in the armed forces of the United States or who is requested to work for the federal government during a national emergency or a limited national emergency, shall be restored to the same or similar position in the classified service and his or her employment shall be deemed not to have been interrupted by such leave except for the receipt of pay or other compensation and accumulation of sick leave and vacation for the period of such absence, unless the employee qualifies to receive pay and benefits under s. 230.315, and the employee shall be given all other benefits of seniority, status, pay, pay advancement, performance awards and pension rights under ch. 40 as though the state employment was continuous, if:

230.32(1)(a) (a) The employee presents to the appointing authority a certificate or other evidence that he or she has satisfactorily completed the period of training or service, and discharge is other than dishonorable or other than by reason of the sentence of a general court martial, or other than on the ground of being a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise to comply with lawful orders of competent military authorities, or other than as a deserter or of an officer by the acceptance of a resignation for the good of the service.

230.32(1)(b) (b) The period of service is not more than 4 years unless involuntarily retained for a longer period.

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) (2) 

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) (3) 

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 administrator 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 administrator, shall be in writing. Notice of such leave from state service shall be made in writing by the appointing authority to the administrator 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 administrator.

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 the rules of the director. 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 director 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 director.

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.

230.32 History History: 1971 c. 270 ss. 73, 74; Stats. 1971 s. 16.26; 1977 c. 196 ss. 56, 130 (5); 1977 c. 273; 1977 c. 418 s. 924 (13m); Stats. 1977 s. 230.32; 1981 c. 96 s. 67; 1981 c. 140; 1983 a. 27 s. 2200 (15); 2001 a. 26; 2003 a. 33, 162; 2005 a. 145; 2007 a. 200; 2015 a. 55, 150.

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 administrator. 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.

230.33 History History: 1971 c. 270 s. 69; Stats. 1971 s. 16.27; 1973 c. 12; 1975 c. 189, 421; 1977 c. 196 ss. 56, 130 (5); 1977 c. 273; Stats. 1977 s. 230.33; 1983 a. 27 s. 2200 (15); 1991 a. 269; 1997 a. 307; 1999 a. 102; 2003 a. 33; 2015 a. 55.

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.

230.337 History History: 1989 a. 31, 107; 1995 a. 27 s. 9126 (19); 2005 a. 145; 2007 a. 20 s. 9121 (6) (a).

230.339 230.339 Rights of certain employees of the department of safety and professional services.

230.339(1) (1) If any of the following employees who hold the position of bureau director in the classified service at the department of commerce on the day before July 1, 2011, and who have achieved permanent status in class on or before that date are transferred to the position of bureau director in the unclassified service at the department of safety and professional services, that transferred employee shall retain those protections afforded employees in the classified service under ss. 230.34 (1) (a) and 230.44 (1) (c) relating to demotion, suspension, discharge, layoff, or reduction in base pay:

230.339(1)(b) (b) Director of the bureau of petroleum environmental cleanup fund administration in the division of environmental and regulatory services.

230.339(1)(c) (c) Director of the bureau of petroleum products and tanks in the division of environmental and regulatory services.

230.339(1)(d) (d) Director of the bureau of integrated services in the division of safety and buildings.

230.339(1)(e) (e) Director of the bureau of program development in the division of safety and buildings.

230.339(2) (2) Each employee specified under sub. (1) shall also have reinstatement privileges to the classified service as provided under s. 230.33 (1).

230.339 History History: 2011 a. 32.

230.34 230.34 Demotion, suspension, discharge and layoff.

230.34(1) (1) 

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 or an assistant state public defender 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. It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee for work performance or personal conduct that is inadequate, unsuitable, or inferior, as determined by the appointing authority, but only after imposing progressive discipline that complies with the administrator’s standards under s. 230.04 (13m). It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee without imposing progressive discipline for any of the following conduct:

230.34(1)(a)1. 1. While on duty, harassing a person.

230.34(1)(a)2. 2. While on duty, intentionally inflicting physical harm on another person.

230.34(1)(a)3. 3. While on duty, being intoxicated or under the influence of a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m). This subdivision does not apply to an employee who is under the influence of a controlled substance or controlled substance analog if the employee is using the controlled substance or controlled substance analog as dispensed, prescribed, or recommended as part of medication-assisted treatment.

230.34(1)(a)4. 4. While on duty, being in possession of a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), without a prescription. This subdivision does not apply to an employee who is in possession of a controlled substance or a controlled substance analog if the employee is using the controlled substance or controlled substance analog as dispensed, prescribed, or recommended as part of medication-assisted treatment.

230.34(1)(a)5. 5. Falsifying records of the agency.

230.34(1)(a)6. 6. Theft of agency property or services with intent to deprive an agency of the property or services permanently, theft of currency of any value, felonious conduct connected with the employee’s employment with the agency, or intentional or negligent conduct by an employee that causes substantial damage to agency property.

230.34(1)(a)7. 7. A conviction of an employee of a crime or other offense subject to civil forfeiture, while on or off duty, if the conviction makes it impossible for the employee to perform the duties that the employee performs for the agency.

230.34(1)(a)8. 8. Misuse or abuse of agency property, including the intentional use of the agency’s equipment to download, view, solicit, seek, display, or distribute pornographic material.

230.34(1)(a)9. 9. A serious violation of the code of ethics established by the director under s. 19.45 (11) (a), as determined by the director.

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 3 working days during a calendar year, 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 or an assistant state public defender for a continuous period of 12 months or more.

230.34(1)(ax) (ax)

230.34(1)(ax)1. 1. Notwithstanding pars. (a), (am), and (ar), during a state of emergency declared by the governor under s. 323.10, an appointing authority may discharge any employee who does any of the following:

230.34(1)(ax)1.a. a. Fails to report to work as scheduled for any 3 working days during the state of emergency and the employee’s absences from work are not approved leaves of absence.