- non-managerial employees, not covered by a collective bargaining agreement, have a standard probation of 6-months compared to 12-months in Wisconsin (Minnesota Commissioner's Plan, Chapter VII);
- probationary periods may be extended for up to 6 additional months;
- probation is optional for reinstatement, transfer to a new class, transfer to a different agency or jurisdiction, and voluntary demotion;
- an employee with permanent status who does not complete an optional probation is restored to the former class and agency. In Wisconsin, similar re-employment provisions apply following non-completion of probationary periods when the probation is a result of intra-agency movement; and
- Minnesota provides a trial period for 15 calendar days for a non-managerial employee, not covered by a collective bargaining agreement, who moves to a new class and/or agency to decide whether the employee will remain in the new position.
Grievances: In Wisconsin employees are provided a grievance process for certain personnel actions and adverse employment decisions described in Chapter 230, Wis. Stats. Chapter ER 46 of the Wisconsin Administrative Code has the grievance process for conditions of employment which existed before Act 150 and 2011 Wisconsin Act 10. The proposed changes align all grievance procedures which will create consistency and lessen process and timeline confusion. With the changes from Act 150, the process is now a three-step process which requires submission to the employee’s appointing authority and a meeting at the first step. Employees, other than those in WLEA, are required to submit the grievance themselves and only individual grievances are permitted. If unresolved at Step 1, Step 2 can occur in which the employee appeals the decision to Administrator of DPM. If the grievance is denied, the employee can appeal the denial to the Wisconsin Employment Relations Commission (WERC) for one last review. Grievance timelines were also reduced in Act 150. Illinois: The Illinois grievance 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 required 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. In Illinois, the CMS Director appoints a grievance committee to hear the grievance and provide 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 and can be ultimately appealed to the WERC if not resolved prior.
Iowa: Iowa provides an informal grievance process for employees similar to the formal grievance process in Wisconsin (IAC 11-61.1 (8A)). The Iowa process requires initial submission to the employee’s immediate supervisor, not required in Wisconsin, and then permits appeal to the Director of DAS (“grievances involving suspension, reduction in pay within the same grade, disciplinary demotion, or discharge” (IAC 11-61.1 (8A)). The time limits at each step are similar to those of Wisconsin (IAC 11-61.1(1)). Iowa permits group grievances which have been eliminated in the proposed Wisconsin rules to mirror the statutory changes from Act 150. Grievance meetings are not required at any step in the Iowa process while Wisconsin requires a meeting at step 1.
Michigan: Michigan rules and regulations provide a three step grievance process for employees similar to the former grievance process in Wisconsin pre-Acts 10 and 150 (Michigan Civil Service Commission Rules 8-1 and Minnesota Civil Service Commission Regulations 8.01). A Step 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. Michigan rules do not provide time requirements for the CSHO to hold the hearing on the grievance and permit the grievant to elect an 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.
Minnesota: Minnesota provides a dispute resolution process for employees similar to that of the grievance process in Wisconsin (Minnesota statutes section 43A.33). Non-managerial employees, not covered by a collective bargaining agreement, make an initial submission of complaint to the employee’s immediate supervisor, followed by the next level supervisor if unresolved (Minnesota Commissioner's Plan, Chapter XII). The time limits at each step in the Minnesota rules are similar to those of Wisconsin. Minnesota encourages employees to use the dispute resolution process for adverse employment decisions, but the employee may appeal directly to the Bureau of Mediation Services at any time (Minnesota Commissioner's Plan, Chapter XII). Employees in Wisconsin must use the grievance procedure provided in statute.
Layoff – Layoff procedures for classified employees of the State of Wisconsin were modified in Act 150. Layoff is still determined by limiting the layoff group to the agency, employing unit, and employee classification. The order of layoff has been modified such that seniority is no longer the governing factor and has been replaced by performance, discipline records, special skills, and then seniority. Displacement or bumping was eliminated as an option and agencies are no longer required to terminate probationary employees (those serving an original probationary period) or limited term employees prior to laying off permanent employees. Layoff plans require the approval of the BMRS director and are expected to occur over a 60-day period (formal notification to layoff effective date); however, the proposed rules do include an option for a shorter timeline due to budget or funding factors. Upon layoff from state service, employees are provided a 3-year eligibility for reinstatement to a position at the same or lower level as the position of layoff. Wisconsin no longer has a mandatory restoration, or recall, from layoff other than in the Wisconsin Law Enforcement Association collective bargaining agreement.
Illinois: Illinois rules provide similar procedures for implementing a layoff of employees within an organizational unit “based on class, option, agency, county or other designation” (80 ILADC 302.520). 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). All temporary, provisional, and probationary employees, in such order, must be released prior to layoff of a permanent employee (80 ILADC 302.530).
The notice requirement in the Illinois rules provides for 30 days compared to 60 calendar days in Wisconsin (80 ILADC 302.540). Illinois requires 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: 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 agency wide 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 is responsible for notifying the appointing authority of the class in which class the employee’s wishes to bump (IAC 11-60.3(2) and (3)). The employee receives written confirmation of the ability to bump and then has 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))
Michigan: Like Wisconsin, Michigan rules and regulations include 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 an hour formula (Michigan Civil Service Commission Regulations 2.01(4)(N)(3)(c)). Employees may displace other employees with less seniority in the same classification or series currently, 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)).
The notice requirement is 15 days compared to 60 calendar days in Wisconsin (Michigan Civil Service Commission Regulations 2.01(4)(m)). After layoff in Michigan, an employee is placed on a recall list for mandatory recall for one year with the option for the employee to request an additional year twice, for up to a total of three 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.
Minnesota: In Minnesota, non-managerial employees, not covered by a collective bargaining agreement, who are permanent or probationary employees may be laid off (Minnesota Commissioner's Plan, Chapter X). A discussion with employees regarding voluntary reduction of hours, job sharing or other actions prior to initiating layoff is permissible (Minnesota Commissioner's Plan, Chapter X). Employees shall be reassigned to another position in same class, agency, and employment condition within 35 miles prior to initiating layoffs (Minnesota Commissioner's Plan, Chapter X). All provisional employees must be released prior to layoffs.
The Minnesota statute provides that if layoffs become necessary, each agency with more than 50 full time employees must reduce management and supervisory positions by the same percentage as line and support staff (Minnesota statute section 43A.046). There is no such requirement in Wisconsin.
Minnesota requires a layoff notice of at least 3 weeks which will include all of the following options if available: (1) accept layoff; (2) bumping of least senior employee within 35 miles in same employment condition, same agency, and same class, or if not available, a comparable or lower class employee previously served in order of previous service; (3) available vacancy in same agency; (4) reduction in hours in same agency and the same class or comparable or lower class for which the employee is qualified; (5) bumping least senior employee with no geographic limits; (6) bumping least senior employee from full-time to part-time and part-time to full-time if no bumping options to same class and employment condition or vacancies in same agency and employment condition within 35 miles are available; and (7) claiming a transfer or demotion to another agency unless a vacancy within the agency has been offered (Minnesota Commissioner's Plan, Chapter X). If the employee is laid off or demotes in lieu of layoff, the employee is placed on a layoff list for their class within the agency for one to three years, depending on continuous service, and may request to be added to the enterprise layoff list (Minnesota Commissioner's Plan, Chapter X). Recall from the layoff list is mandatory.
Other – In addition to the comparison categories noted above, job abandonment in Wisconsin was modified in Act 150. The proposed rules now reflect absences that may be considered job abandonment have changed from 5 consecutive days to 3 absences in a calendar year. Iowa rules do not define job abandonment but provide that an employee who fails to report to work for three consecutive days without prior authorization may be considered to have voluntarily terminated employment (IAC 11-60.1(1)). Similarly, Michigan rules also do not define job abandonment but provide that an employee who fails to report to work for three consecutive days may be disciplined (Michigan Civil Service Commission Rules 2-6.2(b)(3)). Illinois and Minnesota do not have provisions comparable to job abandonment.
8. Summary of the factual data and analytical methodologies that the agency used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule:
The Department is proposing this rule to update existing rules and interpretations of existing statutes.
9. Effect on small business:
The rule has no effect on small businesses.
10. Any analysis and supporting documents used in support of the agency’s determination of the rule’s effect on small business or in preparation of economic impact report:
The proposed rule has no effect on small businesses because only governmental employers and their employees are governed by ch. 230, Wis. Stats., as administered by the Department of Administration, Division of Personnel Management. 11. Agency Contact Person:
Nicole Rute, Executive Human Resources Officer
Department of Administration
Division of Personnel Management
101 E. Wilson Street
P.O. Box 7855
Madison, WI 53707-7855
Telephone: (608) 267-1019
RULE TEXT
Section 1. ER 1.02 (2) (b) and (9) are amended to read:
ER 1.02 (2) (b) Eliminating a substantial disparity between the proportion of members of racial and ethnic, gender or handicap disability groups either in the classified civil service determined by grouping classifications according to similar responsibilities, pay ranges, nature of work, other factors recognized in the job evaluation process and any other factors the division considers relevant, or in similar functional groups in the unclassified service, and the proportion of members of racial and ethnic, gender or handicap disability groups in the relevant labor pool.
(9) “Discrimination” means unlawful actions or practices which constitute unequal or different treatment of, or create an unequal or different effect on an individual or group of people, on the basis of age, race, creed or religion, color, handicap disability, sex, marital status, national origin or ancestry, political affiliation, arrest or conviction record, sexual orientation, or other bases specified under subch. II of ch. 111, Stats. Section 2. ER 1.02 (13g) and (13r) are created to read:
ER 1.02 (13g) “Involuntary demotion” means a demotion directed by the appointing authority.
(13r) “Involuntary transfer” means a transfer directed by the appointing authority.
Section 3. ER (22) and (42) are amended to read:
ER 1.02 (22) “Original appointment” means the appointment of a person who has not attained permanent status in class or permanent status, or the appointment of a current or former employee on a basis other than a demotion, promotion, reinstatement or , restoration basis or transfer to a classified position in which permanent status can be attained.
(42) “Restoration” means the act of mandatory reappointment without competition of an employee or former employee under s. 230.34, 2013 Stats., s. 230.31, 230.32, or 230.33 or 230.34, Stats., to a position: (a) in the same class in which the person was previously employed; (b) in another classification to which the person would have been eligible to transfer had there been no break in employment; or (c) in a class having a lower pay rate or pay range maximum for which the person is qualified to perform the work after the customary orientation provided to newly hired workers in the position. Section 4. ER 18.01 (2) (b), (2) (e), (3) (f), (4m), and (6) (a) are amended to read:
