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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.
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 or an assistant state public defender for a continuous period of 12 months or more.
230.34 Note NOTE: Par. (ar) is shown as affected by 2013 Wis. Acts 123 and 166 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
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.
230.34(1)(ax)1.b. b. 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.
230.34(1)(ax)2. 2. Engaging in any action under subd. 1. constitutes just cause for discharge.
230.34(1)(ax)3. 3. 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.
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 History History: 1971 c. 270 ss. 61, 76; Stats. 1971 s. 16.28; 1975 c. 189, 200; 1977 c. 196 ss. 56, 130 (3), (5); 1977 c. 273; Stats. 1977 s. 230.34; 1979 c. 221; 1981 c. 140; 1983 a. 27 s. 2200 (15); 1989 a. 31; 1999 a. 102; 2003 a. 33; 2011 a. 10, 32; 2013 a. 123, 166; s. 13.92 (2) (i).
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) (1)
230.35(1)(a)(a) Except as provided in subs. (1m), (1r), 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:
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 unless the employee uses annual leave that he or she accrued while serving in an unclassified position.
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) (1m)
230.35(1m)(bt)(bt) Except as otherwise provided in the compensation plan under s. 230.12, 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. Employees appointed to career executive positions under s. 230.24 or positions designated in s. 19.42 (10) (L) or 20.923 (4), (7), (8), or (9) or authorized under s. 230.08 (2) (e) are not subject to the continuous service requirements under sub. (1) (g) if they are reemployed in any of those positions, regardless of the duration of their absence. If the employees are reemployed in a position other than a career executive position or a position designated in s. 19.42 (10) (L) or 20.923 (4), (7), (8), or (9) or authorized under s. 230.08 (2) (e), continuous service shall be established in accordance with rules of the director.
230.35(1p) (1p) Except as otherwise provided in the compensation plan under s. 230.12:
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)(b)1. 1. Not to exceed 40 hours in cash;
230.35(1p)(b)3. 3. As credit for termination leave;
230.35(1p)(b)4. 4. As accumulated sabbatical leave.
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)(bm)1. 1. Not to exceed 40 hours in cash.
230.35(1p)(bm)2. 2. As credit for termination leave.
230.35(1p)(bm)3. 3. As accumulated sabbatical leave.
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.
230.35(1r) (1r) A state officer elected by the people may take vacation without loss of pay. No such state officer is entitled to payment for unused annual leave.
230.35(1s) (1s) Annual leave of absence with pay for instructional staff employed by the board of regents of the University of Wisconsin System who provide services for a charter school established by contract under s. 118.40 (2r) (cm) shall be determined by the governing board of the charter school established by contract under s. 118.40 (2r) (cm), as approved by the chancellor of the University of Wisconsin-Parkside.
230.35(2) (2) Leave of absence with pay owing to sickness and leave of absence without pay, other than annual leave and leave under s. 103.10, shall be regulated by rules of the director, except that unused sick leave shall accumulate from year to year. After July 1, 1973, employees appointed to career executive positions under the program established under s. 230.24 or positions designated in s. 19.42 (10) (L) or 20.923 (4), (7), (8), and (9) or authorized under s. 230.08 (2) (e) shall have any unused sick leave credits restored if they are reemployed in a career executive position or in a position under s. 19.42 (10) (L) or 20.923 (4), (7), (8), and (9) or authorized under s. 230.08 (2) (e), regardless of the duration of their absence. Restoration of unused sick leave credits if reemployment is to a position other than those specified above shall be in accordance with rules of the director.
230.35(2d) (2d)
230.35(2d)(a)(a) In this subsection:
230.35(2d)(a)1. 1. "Bone marrow" has the meaning given in s. 146.34 (1) (a).
230.35(2d)(a)2. 2. "Human organ" means a heart, lung, liver, pancreas, kidney, intestine, or other organ that requires the continuous circulation of blood to remain useful for purposes of transplantation.
230.35(2d)(b) (b) An appointing authority shall grant a leave of absence of 5 workdays to any employee who requests a leave of absence to serve as a bone marrow donor if the employee provides the appointing authority written verification that he or she is to serve as a bone marrow donor.
230.35(2d)(c) (c) An appointing authority shall grant a leave of absence of 30 workdays to any employee who requests a leave of absence to serve as a human organ donor if the employee provides the appointing authority written verification that he or she is to serve as a human organ donor.
230.35(2d)(d) (d) An employee who is granted a leave of absence under this subsection shall receive his or her base state pay without interruption during the leave of absence. For purposes of determining seniority, pay or pay advancement and performance awards and for the receipt of any benefit that may be affected by a leave of absence, the service of the employee shall be considered uninterrupted by the leave of absence.
230.35(2d)(e) (e) For employees who are included in a collective bargaining unit for which a representative is recognized or certified under subch. V of ch. 111, this subsection shall apply unless otherwise provided in a collective bargaining agreement.
230.35(2m) (2m) An employee shall be eligible for medical or family leave under s. 103.10 upon the expiration, extension or renewal of any collective bargaining agreement in effect on April 26, 1988, which covers the employee.
230.35(2r) (2r)
230.35(2r)(a)(a) In this subsection, "catastrophic need" means an illness or injury that incapacitates or is expected to incapacitate an employee or an employee's family member, that requires the employee to take time off from work for an extended period of time and that creates a financial hardship for the employee.
230.35(2r)(b) (b) The director may establish, by rule, a catastrophic leave program that permits employees to donate certain types and amounts of leave credits to other employees who have been absent from pay status because of a catastrophic need for which there is no paid leave benefits or replacement income available. The director shall determine the types and amounts of leave credits that may be donated.
230.35(2r)(c) (c) No employee may grieve under an agency's grievance procedure any appointing authority's decision relating to a catastrophic leave program under this subsection or appeal any such decision to the commission under s. 230.44 or 230.45 (1) (c).
230.35(3) (3)
230.35(3)(a)(a) Officials and employees of the state who have permanent status and who are members of the national guard, the state defense force, or any other reserve component of the military forces of the United States or this state now or hereafter organized or constituted under federal or state law, are entitled to leaves of absence without loss of time in the service of the state, to enable them to attend military schools and annual field training or annual active duty for training, and any other state or federal tours of active duty, except extended active duty or service as a member of the active armed forces of the United States which have been duly ordered but not exceeding 30 days, excluding Saturdays, Sundays and holidays enumerated in sub. (4) in the calendar year in which so ordered and held. During this leave of absence, each state official or employee shall receive base state pay less the base military pay received for and identified with such attendance but such reduction shall not be more than the base state pay. Other than for a leave of absence for the adjutant general and any deputy adjutants general, such leave shall not be granted for absences of less than 3 days. A state official or employee serving on state active duty as a member of the national guard or state defense force, may elect to receive pay from the state under s. 20.465 (1) in an amount equal to base state salary for such period of state active duty. Leave granted by this section is in addition to all other leaves granted or authorized by any other law. For the purpose of determining seniority, pay or pay advancement and performance awards the status of the employee shall be considered uninterrupted by such attendance.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 324 and all Supreme Court Orders entered before April 25, 2014. Published and certified under s. 35.18. Changes effective after April 25, 2014 are designated by NOTES. (Published 4-25-14)