Chapter 230

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

230.33 230.33 Leave of absence and pay while serving in unclassified position. Employees who have completed an original appointment probationary period in the classified service and are appointed to a position in the unclassified service shall be subject to the following provisions relative to leave of absence, restoration rights, reinstatement privileges and pay:

230.33(1) (1) A person appointed to an unclassified position by the governor, elected officer, judicial body or by a legislative body or committee shall be granted a leave of absence without pay for the duration of the appointment and for 3 months thereafter, during which time the person has restoration rights to the former position or equivalent position in the department in which last employed in a classified position without loss of seniority. The person shall also have reinstatement privileges for 5 years following appointment to the unclassified service or for one year after termination of the unclassified appointment whichever is longer. Restoration rights and reinstatement privileges shall be forfeited if the reason for termination of the unclassified appointment would also be reason for discharge from the former position in the classified service.

230.33(1m) (1m) A person appointed to an unclassified position by an appointing authority other than an appointing authority described under sub. (1), when both the classified and unclassified positions are within the appointing authority’s department, shall be granted a leave of absence without pay for the duration of the appointment and for 3 months thereafter, during which time the person has restoration rights to the former position or equivalent position in the department in which last employed in a classified position without loss of seniority. The person shall also have reinstatement privileges for 5 years following appointment to the unclassified service or for one year after termination of the unclassified appointment whichever is longer. Restoration rights and reinstatement privileges shall be forfeited if the reason for termination of the unclassified appointment would also be reason for discharge from the former position in the classified service.

230.33(2) (2) A person appointed to an unclassified position by an appointing authority other than an appointing authority described under sub. (1), to a department other than the one in which the person was a classified employee may be granted a leave of absence without pay at the option of the person’s former appointing authority in accordance with the leave of absence provisions in the rules of the administrator. An employee granted a leave of absence shall have the same restoration rights and reinstatement privileges as under sub. (1m). If not granted a leave of absence, the employee shall be entitled only to the reinstatement privileges under sub. (1m).

230.33(3) (3) Except for 3 sales representatives of prison industries and one sales manager of prison industries identified under s. 303.01 (10), an employee appointed to a position in the unclassified service from the classified service shall be entitled to receive at least the same pay received in the classified position while serving in such unclassified position.

230.33(4) (4) This section shall supersede any provision of law in conflict therewith but shall not diminish the rights and privileges of employees appointed to the unclassified service from the classified service prior to April 30, 1972.

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

230.335 230.335 Rights of unclassified division administrators. If any employee in a classified position of division administrator is made unclassified under chapter 196, laws of 1977, and if the incumbent division administrator is not thereafter appointed to such position, or if the incumbent is hired and subsequently terminated for any reason except just cause, the incumbent division administrator shall have appointment rights, including bumping if necessary, to a comparable or lower level position which is within the agency wherein the division administrator position is located. The incumbent shall have 90 days after notice of termination to exercise such appointment rights.

230.335 History History: 1977 c. 196.

230.337 230.337 Rights of employees: corrections or parole. If any incumbent member of the parole board in the office of the secretary of health services on January 1, 1990, in a classified position is not appointed to the parole commission created by 1989 Wisconsin Act 31, or if the incumbent member is appointed to the commission and subsequently terminated for any reason except just cause, the incumbent member shall have restoration rights and reinstatement privileges, including the right of displacement if necessary, to a position having a comparable or lower pay rate or range for which the person is qualified which is within the department of corrections, as created by 1989 Wisconsin Act 31, or the department of health services. In the case of termination, the incumbent shall have 90 days after notice of termination to exercise the rights and privileges. The rights and privileges granted under this subsection are subject to the terms of any collective bargaining agreement that covers the incumbent parole board members.

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

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

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

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

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

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

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

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

230.339 History History: 2011 a. 32.

230.34 230.34 Demotion, suspension, discharge and layoff.

230.34(1) (1) 

230.34(1)(a) (a) An employee with permanent status in class or an employee who has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more may be removed, suspended without pay, discharged, reduced in base pay, or demoted only for just cause. It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee for work performance or personal conduct that is inadequate, unsuitable, or inferior, as determined by the appointing authority, but only after imposing progressive discipline that complies with the administrator’s standards under s. 230.04 (13m). It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee without imposing progressive discipline for any of the following conduct:

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

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

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

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

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

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

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

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

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

230.34(1)(am) (am) If an employee fails to report for work as scheduled or to contact his or her supervisor, the appointing authority may discipline the employee. If an employee fails to report for work as scheduled, or to contact his or her supervisor for a minimum of 3 working days during a calendar year, the appointing authority shall consider the employee’s position abandoned and may discipline the employee or treat the employee as having resigned his or her position. If the appointing authority decides to treat the position abandonment as a resignation, the appointing authority shall notify the employee in writing that the employee is being treated as having effectively resigned as of the end of the last day worked.

230.34(1)(ar) (ar) Paragraphs (a) and (am) apply to all employees with permanent status in class in the classified service and all employees who have served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more.

230.34(1)(ax) (ax)

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

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

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 administrator 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.

230.34(2)(a) (a) 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.

230.34(2)(b) (b) 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.

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 director may be limited to employees whose positions are dependent upon specific funding contingencies.

230.34(3) (3) 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.

230.34(4) (4) Resignations shall be regulated by the rules of the administrator.

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. 20 ss. 2365m, 9448; 2013 a. 123, 166; 2015 a. 55, 150, 195; 2019 a. 120.

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 Board, 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 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.

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 administrator.

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.