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:
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.
The period of service is not more than 4 years unless involuntarily retained for a longer period.
The employee is still qualified to perform the duties of such position.
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.
The circumstances of the employing agency have not changed so as to make it impossible or unreasonable to so restore such employee.
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
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.
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.
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.
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.
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.
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.
The restoration of classified former employees of the state shall be governed by this section and by the rules of the director.
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
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:
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.
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.
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)
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.
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.
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.
History: 1977 c. 196
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.
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:
Director of the bureau of petroleum environmental cleanup fund administration in the division of environmental and regulatory services.
Director of the bureau of petroleum products and tanks in the division of environmental and regulatory services.
Director of the bureau of integrated services in the division of safety and buildings.
Director of the bureau of program development in the division of safety and buildings.
Each employee specified under sub. (1)
shall also have reinstatement privileges to the classified service as provided under s. 230.33 (1)
History: 2011 a. 32
Demotion, suspension, discharge and layoff. 230.34(1)(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:
While on duty, intentionally inflicting physical harm on another person.
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)
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.
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.
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.
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.
A serious violation of the code of ethics established by the director under s. 19.45 (11) (a)
, as determined by the director.
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.
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.
Notwithstanding pars. (a)
, 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:
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.
Participates in a strike, work stoppage, sit-down, stay-in, slowdown, or other concerted activities to interrupt the operations or services of state government, including specifically participation in purported mass resignations or sick calls.
Engaging in any action under subd. 1.
constitutes just cause for discharge.
Before discharging an employee, the appointing authority shall provide the employee notice of the action and shall furnish to the employee in writing the reasons for the action. The appointing authority shall provide the employee an opportunity to respond to the reasons for the discharge.
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.
The administrator shall establish guidelines for uniform application of this authority among the various agencies.
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.
An appointing authority shall determine the order of layoff of such employees primarily based on job performance, and thereafter, in accordance with the rules of the director, on disciplinary records, seniority, and ability.
The director shall promulgate rules governing layoffs and appeals therefrom and alternative procedures in lieu of layoff to include voluntary and involuntary demotion, as well as the subsequent employee eligibility for reinstatement.
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 director may be limited to employees whose positions are dependent upon specific funding contingencies.
The appointing authority shall confer with the director relative to a proposed layoff a reasonable time before the effective date thereof in order to assure compliance with the rules.
Resignations shall be regulated by the rules of the administrator.
See also chs. ER-MRS 17
, Wis. adm. code.
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
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
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
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
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).
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
State office hours; standard workweek; leaves of absence; holidays. 230.35(1)(a)
Except as provided in subs. (1m)
, and (1s)
and the compensation plan under s. 230.12
, 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:
One hundred four hours each year for a full year of service during the first 5 years of service;
One hundred forty-four hours each year for a full year of service during the next 5 years of service;
One hundred sixty hours each year for a full year of service during the next 5 years of service;
One hundred eighty-four hours each year for a full year of service during the next 5 years of service;
Two hundred hours each year for a full year of service during the next 5 years of service;
Two hundred sixteen hours each year for a full year of service after 25 years of service.
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 unless the employee uses annual leave that he or she accrued while serving in an unclassified position.
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.
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 administrator, 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.
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.
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.
The continuous service of an employee eligible for annual leave shall not be considered interrupted if the employee either:
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