Changes to ch. ER 18 governing absences to provide consistency with statute and the State of Wisconsin Compensation Plan. Removed references to restoration and examination, updated applicability of provisions to University of Wisconsin employees, and adjusted timelines for leave to reflect changes in probationary periods. Changes to ch. ER 21 governing resignation to update the definition of leave credits as related to resignation. The parameters of job abandonment updated to align the rule with statute. Changes to ch. ER 43 governing affirmative action and equal opportunity to provide consistency with terminology used in statutes and federal regulations. Changes to ch. ER 46 governing grievance procedures to provide consistency with statute. 2015 Wisconsin Act 150 created grievance procedures for adverse employment decisions in s. 230.445, Wis. Stats. The proposed rule changes update state employee grievance procedures and time limits for grievances filed relating to conditions of employment to match those for adverse employment decisions. Changes to ch. ER-MRS 1 governing definitions to update definitions of demotion, original appointment, restoration, and transfer. Changes to ch. ER-MRS 6 governing recruitment and selection to replace examination with competitive procedures to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 7 governing appointing procedures for unskilled labor and service classifications to replace the term examination to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 8 governing procedures for corrections and entry professional positions to replace the term examination and remove reference to promotional and servicewide recruitments to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. References to Department of Health Services also removed to align rule with current statute. Changes to ch. ER-MRS 10 governing limited term appointments to provide for exclusions and violations to align the rule with statute and current practice. Changes to ch. ER-MRS 11 governing employment registers to remove promotional registers to align the rule with current statute and update management of registers to account for new statutory timelines for recruitment resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 12 governing certification and appointment to remove certification from promotional and restoration registers and to replace examination with competitive procedures to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Add reference to exceptional hiring methods and non-competitive appointment statute provisions. Changes to ch. ER-MRS 13 governing probationary periods to provide consistency with probationary changes in 2015 Wisconsin Act 150 changes and current practice. All probationary periods will have a minimum duration of one year. Original and promotional probations may be extended for up to 12 months. No waiver is allowed for probationary periods for supervisory positions. Updating extension of a probation due to absence from employment to be for 348 hours as a result of the base probationary period being twice as long as prior probations. Mandatory extension due to absence for required probations only. Changes to ch. ER-MRS 14 governing promotion to provide that promotional appointments are a result of open competition and remove reinstatement language to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Removing duplicate language for pay on new promotion. Changes to ch. ER-MRS 15 governing transfer to add language for authorization and probation related to involuntary transfers to differentiate from voluntary transfers. Changes to ch. ER-MRS 16 governing reinstatement and restoration to update period of eligibility and conditions for reinstatement and restoration to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 17 governing demotion to remove reference to restoration and clarify the assignment of a probationary period for voluntary demotion. Changes to ch. ER-MRS 22 governing layoff procedures to specify how the order of layoff is to be determined to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Definition of reasonable offer updated to reflect current practices. Alternatives to termination from the service as a result of layoff were modified to remove difference of within or between employing unit movements for transfers and demotions. Displacement as an alternative to layoff and restoration following layoff after July 1, 2016 were eliminated and reinstatement eligibility was updated to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 27 governing exceptional methods and kinds of employment to replace examination with selection procedures to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Changes to ch. ER-MRS 30 governing career executive employment to provide consistency with recruitment, selection, probation, reinstatement and restoration changes made elsewhere and to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. Waiver of any portion of a trial period was eliminated. Added permissive probation for movement between agencies of career executive employees who have completed a trial period. Clarified career executive reassignment and prohibited reassignment between agencies while serving a trial period. Updated technical terminology to remove restoration language. Changes to ch. ER-MRS 32 governing acting assignments to update procedures to align rule with current practices. Changes to ch. ER-MRS 34 governing project appointments to update employment eligibilities to align the rule with current statute resulting from 2015 Wisconsin Act 150 changes. 6. Summary of, and preliminary comparison with, any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
There are no existing or proposed federal regulations that directly pertain to this proposed rule.
7. Comparison with similar rules in Illinois, Iowa, Michigan, and Minnesota:
Illinois
The state of Illinois is a merit based civil service system and allows for collective bargaining.
Recruitment – The Director of Central Management Services (CMS) is responsible for the administration of the Personnel Code. (20 ILCS 415/3) “The Director shall conduct open competitive and promotional examinations to determine the relative fitness of applicants.” (80 ILADC 302.10) Vacancies in Illinois must initially be filled by available persons on a reemployment list. (80 ILADC 302.10(b)) Subsequently, positions may be filled by open competition, promotion, demotion, transfer, or reinstatement. (80 ILADC 302.90) Reinstatement is allowed for permanent employees who left employment in good standing or have been laid off and there is no time limit on such eligibility. (80 ILADC 302.610) Reinstatement in Wisconsin has now been limited to employees that are laid off and only for a period of three years. Illinois rules provide for veterans’ preference through points added to the final grades of qualified applicants and verification is required prior to the points being applied. (80 ILADC 302.30) Wisconsin no longer assigns points to veterans but rather engages in expanded certification practices to include veterans on a list and verification is only required at the point of hire if the applicant was certified as a result of veterans’ preference. The Director of CMS may refuse to consider applicants or remove applicants from a list of eligibles for similar reasons available in Wisconsin. (80 ILADC 302.130) Illinois rules do not establish a time requirement to respond to an interview offer, whereas the proposed Wisconsin rules would provide for 2 working days to respond to an offer to participate in subsequent steps of the selection process. Performance records of employees are considered for all personnel transactions. (80 ILADC 302.260)
Probation – Illinois rules require a 6-month probationary period upon entry into state service, rehire when it is considered a new period of continuous service, or when appointed from an open competitive eligibility list, regardless of current status as an employee. (80 ILADC 302.300) Illinois rules also provide for a 4-month probationary period for promotion and reinstatement. (80 ILADC 302.300) The proposed Wisconsin rules require a 12-month probationary period for original appointments and promotional appointments and provide for 12-month permissive probations upon certain transfers or demotions. An employee in Illinois who is absent 15 consecutive calendar days will have their probationary period extended. (80 ILADC 302.300) Wisconsin rules, as proposed, provide for mandatory extension of probation when 348 hours of absences occur during an employee’s 12-month probation. In Illinois, an employee who fails a promotional probation, other than for just cause, is returned to the former class, regardless of whether the promotion occurred within the same agency. (80 ILADC 302.340)
Grievances – Illinois provides a grievance process for employees that is differentiated from the grievance process in Wisconsin (80 ILADC 303.20). The Illinois process requires initial submission of the grievance orally to the employee’s immediate supervisor, followed by written submission to the next level supervisor, which is not provided for in the Wisconsin rules. Steps 3 and 4 in the Illinois process is the submission to the head of agency, followed by appeal to the Director of CMS similar to steps 1 and 2 provided in Wisconsin rules. Illinois provides that the Director of CMS will appoint a grievance committee to hear the grievance and provide a recommendation to the Director who will then review and make the final determination. (80 ILADC 303.30) “Probationary terminations, charges seeking discharge, demotion or suspension totaling more than 30 days in any 12-month period of certified employees, appeals of allocation of duties or transfers from one geographical area in the State to another are not subject to grievance procedure.” (80 ILADC 303.10 (b)) Such appeals, other than for probationary terminations, are appealed to the Illinois Civil Service Commission. (80 ILADC 301.30 (c), 302.430, 302.496, and 30.750) Wisconsin requires that all grievances must first go to the appointing authority.
Layoff – Like Wisconsin, the Illinois rules provide procedures for implementing a layoff of employees within an organizational unit “based on class, option, agency, county or other designation.” (80 ILADC 302.520) All temporary, provisional, and probationary employees, in such order, must be released prior to layoff of a permanent employee. (80 ILADC 302.530) There is no requirement in Wisconsin to release any type of employee prior to initiating layoff. A plan must be submitted to the Director of CMS for approval in advance of the effective date. The order of layoff is generally based on continuous service but performance may be considered for adjustment. (80 ILADC 302.530) Conversely, layoffs in Wisconsin are primarily based on performance with consideration given to continuous service, discipline and special skills or abilities to adjust the order of layoff. The notice requirement in the Illinois rules provides for 30 days compared to 60 calendar days in Wisconsin. (80 ILADC 302.540) Illinois requires that employees subject to layoff be offered “any vacant positions for the same title held by that employee within the same agency and county from which the employee is subject to layoff and within two additional alternate counties designated by the employee.” (80 ILADC 302.545) Other transfers and demotions may be requested by the employee in writing prior to the effective date of the layoff. (80 ILADC 302.550) Contrasted to Wisconsin, Illinois rules provide an employee who has been laid off shall be placed on a reemployment list for mandatory recall for up to 3 years. (80 ILADC 302.570, 302.580, and 302.590) Wisconsin rules provide for transfer and if not available, demotion in lieu of layoff and no recall rights for employees who have been laid off.
Iowa
The state of Iowa is a merit based civil service system and allows for collective bargaining.
Recruitment – Iowa statute section 8A.402 establishes a “central agency responsible for state human resources management” and authorizes the promulgation of rules by the Director of the Department of Administrative Services (DAS). The director may also delegate responsibilities to appointing authorities. Appointments and promotions are made solely on the basis of merit and fitness “to be ascertained by examinations or other appropriate screening methods.” (Iowa statute section 8A.411(3)) Vacancies in Iowa may be filled by promotion, demotion, transfer, recall, reinstatement or original appointment. (IAC 11-56.1(8A)) Reinstatement is allowed for permanent employees who left employment for other than just cause or demoted and reinstatement may happen at any time. (IAC 11-57.5 (8A)) Reinstatement in Wisconsin has now been limited to employees that are laid off and only for a period of three years. The Department of Administrative Services maintains three types of lists of eligible applicants; (1) Recall; (2) Promotion; and (3) All-applicant. (IAC 11-55.1(8A)) Lists are issued following a request from the agency and expire 120 days after the dated issued. A hire must be effective within 60 days of the expiration of the list. (IAC 11-56.2-.5 (8A)) In Wisconsin, the time frame for a hire is 30 days from request to receipt of certification list and 30 days from certification to hire for a total of 60 days. When filling a vacancy in Iowa, consideration may be limited to current employees for promotion. (IAC 11-55.1(8A)) Wisconsin statutes and rules no longer allow for vacancies to be filled using servicewide promotional or transfer lists. Iowa rules provide for veterans’ preference through points “applied as a percentage of the grade or score attained in qualifying examinations” and verification is required prior to the points being applied. (IAC 11-54.5(2)) Wisconsin no longer assigns points to veterans but rather engages in expanded certification practices to include veterans on a list and verification is only required at the point of hire if the applicant was certified as a result of veterans’ preference. The Director of DAS may refuse to consider applicants or remove applicants from a list of eligibles for similar reasons available in Wisconsin. (IAC 11-54.2(5) and 11-55.2 (8A)) In Iowa, applicants have a period of 5 workdays to respond to an inquiry about availability for appointment, whereas the proposed Wisconsin rules would provide for 2 working days to respond to an offer to participate in subsequent steps of the selection process. Iowa rules also provide applicants may be disqualified or removed if they have resigned in lieu of discharge for cause, which is a provision Wisconsin is including in the proposed rules. Iowa provides for similar non-competitive appointments of disabled veterans, though Iowa requires that the disabled veteran “satisfactorily completes a federally funded job training program.” (IAC 11-57.9 (8A))
Probation – Original appointments in Iowa require a 6-month probationary period compared to 12-months in Wisconsin. (IAC 11-58.1 (8A)) Probation is optional for reinstatement. An employee who promotes or transfers during a probationary period as a result of open competition or who voluntarily demotes, shall have their time spent in the original class counted towards the probationary period for the new position. (IAC 11-58.3-.5 (8A)) In Iowa, an employee with permanent status who promotes within a department may be required to serve a 6-month probationary period and if removed during this probation may be returned to the former class. (IAC 11-58.9 (8A)) Similar to the rules in Wisconsin, Iowa provides that a probationary employee is not eligible for reduction in force (layoff), promotion or appeal rights. (IAC 11.58.1 (8A))
Grievances – Iowa provides an informal grievance process for employees similar to the grievance process in Wisconsin. (IAC 11-61.1 (8A)) The Iowa process requires initial submission to the employee’s immediate supervisor, which is not provided for in the Wisconsin rules. The Iowa rules indicate “grievances involving suspension, reduction in pay within the same grade, disciplinary demotion, or discharge” are filed as appeals and are submitted directly to the Director of DAS. (IAC 11-61.1 (8A)) Wisconsin requires that grievances must first go to the appointing authority. The time limits at each step are similar to those of Wisconsin. (IAC 11-61.1(1)) Iowa also provides for group grievances whereas the proposed Wisconsin rules have eliminated group grievances. (IAC 11-61.1(3)) Grievance meetings are not required at any step in the Iowa process contrary to Wisconsin that requires a meeting at Step 1.
Layoff – Like Wisconsin, the Iowa rules provide procedures for implementing a reduction in force (layoff) of permanent merit system covered employees. (IAC 11-60.3 (8A)) Iowa rules require the reduction in force to be by class within an agency organization unit or agencywide and a plan must be submitted to the director of DAS for approval in advance of the effective date. (IAC 11-60.3(2)) The order of the reduction in force is the result of a calculation of retention points made up of a combination of points for length of service and points for performance record. (IAC 11-60.3(3)) Similar to Wisconsin, discipline and special skills or abilities may be used to adjust the order of layoff. (IAC 11-60.3(3)) The notice requirement in the Iowa rules provides for at least 20 workdays compared to 60 calendar days in Wisconsin. (IAC 11-60.3(2)) Transfers and reassignments to the same class or a class in the same pay grade are permissible outside of the reduction in force process and are not included as alternatives during the layoff process. (IAC 11-60.3(1)) An employee affected by layoff may exercise bumping rights to a filled or vacant lower class in the same series or to a lower formerly held class. (IAC 11-61.3(5)) The notice to the employee will include the classes the employee may have bumping rights to and the employee will be responsible for notifying the appointing authority which class they wish to bump in. (IAC 11-60.3(2) and (3)) Following a notification to the employee of the position in which they could bump, the employee will have five calendar days to provide written acceptance of the position or be laid off. (IAC 11-60.3(5)) Wisconsin rules provide for transfers and demotions as alternatives in lieu of lay off to vacant positions, regardless of whether the employee has held the class previously, and do not allow for the bumping of filled positions. Contrasted to Wisconsin, Iowa rules provide an employee who has been laid off, exercised bumping rights, or had hours reduced shall be eligible for recall to the class and layoff unit occupied at the time of the reduction in force for a period of one year from the effective date. (IAC 11-60.3(6))
Other – Iowa rules do not define job abandonment but provide that an employee who fails to report to work for 3 consecutive days without prior authorization may be considered to have voluntarily terminated employment. (IAC 11-60.1(1))
Michigan
The state of Michigan is a merit based civil service system and allows for collective bargaining.
Recruitment – The State Personnel Director in the Civil Service Commission (CSC) is responsible for administration of the commission’s powers and determines qualifications of candidates for positions in the classified service “by competitive examination and performance exclusively on the basis of merit, efficiency and fitness.” (MI Const 1963, art 11, § 5) Staff of the CSC “shall prepare or approve examinations for all classified positions.” (Michigan Civil Service Commission Rules 3-1.1) Vacancies in Michigan must initially be filled by available persons on a recall list who had been laid off or displaced. (Michigan Civil Service Commission Rules 3-2.3 and Michigan Civil Service Commission Regulations 3.04(4)(A)) Employees are on a recall list for a period of 1 year from the date of layoff or demotion during layoff and can request an additional year twice for a total of 3 years. (Michigan Civil Service Commission Regulations 3.09(5)(E)) Restoration (recall) following layoff has been eliminated in Wisconsin. The next step in the selection process is completing any contractual obligations resulting from collective bargaining. (Michigan Civil Service Commission Regulations 3.04(4)(B) Subsequently, positions may be filled by applicant pools resulting from open competition, promotion, demotion, transfer, or reinstatement. (Michigan Civil Service Commission Rules 3-3.1 to 3.10) To facilitate transfers, preauthorized lateral job change lists are established by CSC which provide “a compilation of current classifications showing, for each classification, a listing of all classifications at the same classification level to which a lateral job change may occur without prior review of qualifications by Civil Service.” (Michigan Civil Service Commission Regulations 3.07(3)(B)(3)) Reinstatement is allowed for permanent employees who demoted or left employment in good standing for a period of 3 years. (Michigan Civil Service Commission Rules 3-3.9) Reinstatement in Wisconsin has now been limited to employees that are laid off and only for a period of three years. Michigan rules provide for veterans’ preference through points added to the final scores of qualified applicants or to the scores of candidates in further screening is completed. (Michigan Civil Service Commission Rules 3-8.3) Wisconsin no longer assigns points to veterans but rather engages in expanded certification practices to include veterans on a list and verification is only required at the point of hire if the applicant was certified as a result of veterans’ preference. Civil service staff may refuse to consider applicants or remove applicants from applicant pools for similar reasons available in Wisconsin. (Michigan Civil Service Commission Rules 3-2.2) Michigan rules do not establish a time requirement to respond to an interview offer, whereas the proposed Wisconsin rules would provide for 2 working days to respond to an offer to participate in subsequent steps of the selection process.
Probation – Michigan rules require a 12-month probationary period, 18-month for less than full time, for “a newly appointed classified employee who does not have status in the classified service” and for “an employee with status who is appointed to a new classification.” (Michigan Civil Service Commission Rules 3-6.1 and 6.2) The proposed Wisconsin rules require a 12-month probationary period for original appointments and promotional appointments and provide for 12-month permissive probations upon certain transfers or demotions. Michigan rules allow for a 6-month extension of a probationary period, possibly longer with approval of the state personnel director, for an employee who has had unsatisfactory performance. (Michigan Civil Service Commission Rules 3-6.2(b)) Wisconsin rules provide extension only when performance has substantially changed or there have been unanticipated changes in the job duties of the employee. A probationary employee in Michigan may be released at any time during the probationary period and up to 28 calendar days after the probation has ended whereas Wisconsin requires the release to happen prior to the end of the probationary period. (Michigan Civil Service Commission Rules 3-6.3) In Michigan, an employee with permanent status who fails a probation in a new classification, other than for just cause, is returned to the former class, regardless of whether the movement occurred within the same agency. (Michigan Civil Service Commission Rules 3-6.6)
Grievances – Michigan rules and regulations provide for a 3 Step grievance process for employees similar to the former grievance process in Wisconsin, including allowing group grievances. (Michigan Civil Service Commission Rules 8-1 and Minnesota Civil Service Commission Regulations 8.01) A Sept-1 grievance must be filed within 14 calendar days to the Step-1 Official within the agency. The Step-1 Official is required to hold an informal conference with the grievant and must issue a written answer within 14 days. Employees who are filing a grievance related to dismissal, suspension without pay, demotion and layoff may go directly to Step-2. The grievant may file a Step-2 grievance within 14 calendar days of the issuance of the Step-1 decision to the Step-2 Official within the agency. There is no requirement for a conference with the employee, though it is permissible. The Step-2 Official must provide a written decision within 28 calendar days. The grievant may appeal the Step-2 decision to the Civil Service Hearings Office (CSHO) within 28 days of the decision. The Michigan rules do not provide any time requirements for the CSHO to hold the hearing on the grievance. Additionally, the grievant may elect for arbitration rather than a hearing. Once a decision is issued, either party may file an appeal to the Civil Service Commission within 28 calendar days.
Layoff – Like Wisconsin, the Michigan rules and regulations provide procedures for implementing a layoff of employees based on classification or classification series, within a department and county. (Michigan Civil Service Commission Rules 2-4 and Michigan Civil Service Commission Regulations 2.01). A layoff plan must only be submitted State Personnel Director of CSC for approval if the agency is going to deviate from the standard layoff process. (Michigan Civil Service Commission Rules 2-4 and Michigan Civil Service Commission Regulations 2.02). The order of layoff is based on continuous service which is calculated to the day using a hour formula. (Michigan Civil Service Commission Regulations 2.01(4)(N)(3)(c)) In Michigan, employees may displace other employees with less seniority in the same classification or series currently held or previously held during the current period of employment. (Michigan Civil Service Commission Rules 2-5.4 and Michigan Civil Service Commission Regulations 2.01(4)(c)) Displacement is no longer allowed in Wisconsin. The notice requirement in the Michigan regulations provides for 15 days compared to 60 calendar days in Wisconsin. (Michigan Civil Service Commission Regulations 2.01(4)(m)) Contrasted to Wisconsin, Michigan rules and regulations provide an employee who has been laid off shall be placed on a recall list for mandatory recall for 1 year with the option for the employee to request an additional year twice, for up to a total of 3 years. (Michigan Civil Service Commission Regulations 3.09(5)(E)) Wisconsin rules provide for transfer and if not available, demotion in lieu of layoff and no recall rights for employees who have been laid off.
Other – Michigan rules do not define job abandonment but provide that an employee who fails to report to work for 3 consecutive days may be disciplined. (Michigan Civil Service Commission Rules 2-6.2(b)(3))
Minnesota
The state of Minnesota is a merit based civil service system and allows for collective bargaining.
Recruitment –The Commissioner of Minnesota Management & Budget (MMB) is responsible for developing rules on the process for determining the extent of competition required for vacancies, conducting selection procedures, and making appointments. (Minnesota statute section 43A.04, subdivision 3) A resume database of applicants who meet the minimum application requirements is maintained by MBB. (Minnesota Personnel Rule 3900.6650) The rules provide for a 1-year eligibility period for applicants in the database with a 6-month minimum provided for by statute. (Minnesota statute section 43A.09, subdivision 2b and Minnesota Personnel Rule 3900.6650) This is comparable to Wisconsin rules. Applicants may also apply directly to the appointing authority for specific vacancies. (Minnesota statute section 43A.09, subdivision 2a) When filling a vacancy, consideration may be limited to current employees, recall lists, reinstatement lists, and transfer candidates. (Minnesota statute section 43A.10, subdivision 6a and Minnesota Personnel Rule 3900.3100) Wisconsin statutes and rules no longer allow for vacancies to be filled using servicewide promotional or transfer lists. The Commissioner of MBB may refuse to consider applicants for similar reasons available in Wisconsin. (Minnesota statute section 43A.10, subdivision 6b and Minnesota Personnel Rule 3900.4200, subpart 3) In Minnesota, applicants have a period of 7 days to respond to an inquiry about availability for appointment, whereas the proposed Wisconsin rules would provide for 2 working days to respond to an offer to participate in subsequent steps of the selection process. Minnesota allows applicants to be removed from consideration immediately upon a failure to appear for a scheduled interview, whereas Wisconsin allows 1 day for the applicant to provide a valid reason before being removed from consideration. Minnesota rules specifically provide for the removal from consideration of an applicant that does not follow instructions specified in a vacancy announcement. Minnesota provides for similar non-competitive appointments including for disabled veterans. (Minnesota statute sections 43A.111. 43A.15, and Minnesota Personnel Rules 3900.8200 to 3900.900) Minnesota does not require the appointing authority to interview additional individuals when making a non-competitive appointment of a disabled veteran whereas Wisconsin requires the consideration of any other interested disabled veteran prior to appointment. There is no time requirement within Minnesota statutes or rules for which appointments must be made.
