Date of Adoption: February 11, 1999.

Purpose: These changes will bring general government rules into compliance with Initiative 200.

Citation of Existing Rules Affected by this Order: See sections below.

Statutory Authority for Adoption: RCW 41.06.150.

Adopted under notice filed as WSR 99-02-053 on January 5, 1999.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 15, Repealed 1.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 15, Repealed 1.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 15, Repealed 1. Effective Date of Rule: April 1, 1999.

February 11, 1999

Dennis Karras

Secretary

Affected groups for affirmative action purposes are: Persons age forty and above, people with disabilities, Vietnam Era veterans and disabled veterans, women, Asians and Pacific Islanders, Blacks, Hispanics, Native Americans and Alaska Natives.

[]

Reviser's note: The unnecessary underlining in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 87-02-038 (Order 267), filed 1/2/87)

WAC 356-05-013
Affirmative action.

Procedures by which ((protected)) affected group members are provided with increased employment opportunities designed to correct underutilization. Affirmative action shall not mean any sort of quota system.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-05-013, filed 1/2/87.]

The eight categories designated by the equal employment opportunity commission for ((affirmative action)) reporting to federal agencies: Officials and administrators, professionals, technicians, protective service workers, paraprofessionals, office and clerical, skilled craft workers, and service and maintenance.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-05-207, filed 1/2/87.]

((WAC 356-05-327 Protected group members. Protected groups for affirmative action purposes are: Persons age forty and above, people with disabilities, Vietnam Era veterans, disabled veterans, women, Asians and Pacific Islanders, Blacks, Hispanics, Native Americans and Alaska Natives.))
AMENDATORY SECTION(Amending WSR 87-02-038 (Order 267), filed 1/2/87)

WAC 356-05-447
Underutilization.

((Employment of protected group members in a class or job category at a rate below their workforce availability, and other approved criteria when applicable, as identified in the agency's approved affirmative action plan.)) Having fewer racial/ethnic minorities, women, persons age 40 and over, Vietnam Era and disabled veterans, or persons of disability in a particular job group than reasonably would be expected based upon their availability.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-05-447, filed 1/2/87.]

The purpose of this chapter is to ensure compliance by state agencies with the provisions of chapter 41.06 RCW and executive orders, which provide for affirmative action and equal employment opportunity in appointment, promotion, transfer, recruitment and career development; development and implementation of affirmative action goals ((and timetables)), and monitoring progress toward achieving those goals ((and timetables)).

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-09-010, filed 1/2/87.]

(1) Agencies that are required to maintain an affirmative action plan shall develop them in accordance with the department of personnel affirmative action program guidelines.  Affirmative action plans will be submitted for review to the department of personnel ((and the human rights commission)).

(2) Affirmative action plan updates will be submitted annually to the department of personnel ((and the human rights commission)) for review and approval in accordance with the department of personnel guidelines.

(3) Affirmative action plans must contain, but are not limited to the following elements:

(a) Equal employment opportunity/affirmative action policy statement endorsed by the agency head.

(b) Designation of responsibility for implementation and maintenance of the plan.

(c) Dissemination of plan and policy.

(d) Utilization analysis.

(e) Goals ((and timetables)).

(f) Identification of problem areas.

(g) Action programs to achieve goals.

(h) Monitoring and reporting procedures.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-09-030, filed 1/2/87.]

The department of personnel is responsible for administering the state's affirmative action program and providing technical assistance to state agencies in the development and implementation of their affirmative action programs.  In keeping with these responsibilities, the department of personnel will accomplish the following:

(1) Publish guidelines that will assist agencies in developing and implementing their affirmative action plan.

(2) Provide agencies with the data required to develop and implement affirmative action goals ((and timetables)).

(3) Review agency affirmative action plans and equal employment opportunity policy statements for compliance with applicable merit system rules and established affirmative action guidelines, and recommend changes as appropriate.

(4) When plans and policy statements are in compliance, recommend them for approval to the governor's affirmative action policy committee.

(((5) Monitor for adverse impact on protected group members in the areas of recruitment, testing, appointment, promotion, transfer, termination, formal disciplinary actions, and career development.  Records in these areas will be maintained by protected group status.))

(((6))) (5) With the assistance of state agencies, initiate the recruitment of ((protected)) affected group members, including target recruitment ((when the representation of protected group members on the register is less than their availability)) when appropriate.

(((7))) (6) Monitor items submitted to the personnel board for possible negative effect on affirmative action.

(((8))) (7) Monitor ((protected)) affected group participation in agencies' human resource development activities.

(((9))) (8) ((Conduct an annual audit to assess)) Monitor agencies' progress in meeting goals and addressing problems identified in their affirmative action program.  ((The audit will be conducted in accordance with the established department of personnel affirmative action program guidelines.))

[Statutory Authority: RCW 41.06.150.  98-19-034, § 356-09-040, filed 9/10/98, effective 10/12/98; 87-02-038 (Order 267), § 356-09-040, filed 1/2/87.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 91-20-034 (Order 388), filed 9/23/91, effective 11/1/91)

WAC 356-09-050
Affirmative action program--Testing.

(1) The department of personnel will make reasonable accommodations for persons of disability who require such during test procedures.

(2) The department of personnel may test ((a protected group member)) persons with disabilities, Vietnam Era veterans and disabled veterans, and persons age 40 and above after the closing date of the recruitment announcement, provided:

(a) A register exists for the class; and

(b) The employing agency or the state has not met affirmative action goals for ((a)) the specific ((protected group)) category for that class or job ((category)); and

(c) The ((protected group's)) category's representation ((on the register)) in the state workforce is less than ((the)) availability ((for the protected group)); and

(d) The applicant is a member of the ((protected group)) category identified in (b) and (c) of this subsection, and met minimum qualifications at the time of application; and

(e) The ((protected group member)) applicant being examined has not been tested under the same recruitment announcement within the past thirty calendar days.

(f) The test may not be taken more than three times within a 12-month period unless the examination content has been substantially changed.

[Statutory Authority: RCW 41.06.040 and 41.06.150.  91-20-034 (Order 388), § 356-09-050, filed 9/23/91, effective 11/1/91.  Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-09-050, filed 1/2/87.]

(1) Recruitment shall be conducted publicly in any manner which the director or designee determines will attract a sufficient number of qualified persons to meet the needs of the classified service, and shall include methods designed to attract ((protected)) affected group members.  Recruitment announcements shall be posted publicly, as selected by the director, and at all offices of the department of personnel.  Each recruitment announcement shall give the title and salary range of the class, a general description of the duties performed, the applicable minimum or desirable qualifications, the expected type of examination, and shall encourage ((protected)) affected group members to apply.

(2) The director may limit recruitment to applicants meeting selective criteria.

(3) The director may limit open competitive recruitment to applicants available for employment to specific geographic locations.

(4) Registers established under subsections (2) and (3) of this section will be used exclusively for filling positions for which such recruitment has been conducted.

[Statutory Authority: RCW 41.06.040 and 41.06.150.  90-05-029 (Order 338), § 356-22-010, filed 2/13/90, effective 4/1/90.  Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-22-010, filed 1/2/87; Order 63, § 356-22-010, filed 2/26/74; Order 36, § 356-22-010, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-16-010.]

(1) All applications shall be on a form prescribed by the department of personnel.  The applicant's signature shall certify the truth of the stated information.

(2) The application shall include pertinent information regarding experience, training, and other information as deemed necessary by the director of personnel.  A certificate of physical fitness from one or more licensed physicians based upon job-related criteria may be required by the director of personnel or designee.

(3) No information shall be solicited or accepted which reveals an applicant's religious or political affiliations.  Information regarding an applicant's ((protected)) affected group status shall be solicited only for use in an affirmative action program and shall be accepted only if it is voluntarily given by the applicant.

(4) Information regarding the nature and extent of a ((handicap)) disability including a physician's statement, may be requested for affirmative action purposes and/or admittance to modified examinations under conditions specified in ((Merit System Rule)) WAC 356-22-130.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-22-040, filed 1/2/87; Order 81, § 356-22-040, filed 8/21/75, effective 9/21/75; Order 80, § 356-22-040, filed 7/16/75, effective 8/16/75; Order 36, § 356-22-040, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-16-070 and 356-16-080.]

(1) The director of personnel, or designated representative, shall determine, by uniform standards, the appropriate examination for a register for a class and the tests, or combination of tests and relative weights to be assigned.  Examinations shall be practical in nature and of such character as to determine the capacity of the applicant to perform the duties of the particular class of positions for which the applicant is competing as well as the applicant's general background and related knowledge, and shall be rated objectively.  Examinations will be developed and administered in a manner that minimizes bias due to cultural differences.  A passing score may be required on each test included in the examination.

Examinations shall normally consist of one or a combination of the following:

(a) A written test.

(b) A performance test.

(c) An oral test.

(d) An evaluation of experience and training.

(2) When the director of personnel determines that the number of applicants responding to an examination announcement is excessive in relation to the number of projected job openings, the director may limit admission to the oral test to those scoring highest on a preliminary test which may be a written test, performance test, or an evaluation of experience and training.  The number admitted to the oral test shall be at least twice the number of anticipated vacancies for the subsequent year or 20% of those applicants with passing scores, whichever is greater; but never less than 16 or the entire body of passing applicants, whichever is less.

(((3) When the director of personnel determines that the number of applicants to be admitted to the oral examination will be limited by a screening procedure as authorized by WAC 356-22-090(2), the department will ensure that, in addition, a representative number of those protected group members who were accepted under the examination announcement and who passed the preliminary test are also admitted to the oral examination.))

[Statutory Authority: RCW 41.06.040 and 41.06.150.  91-20-036 (Order 390), § 356-22-090, filed 9/23/91, effective 11/1/91.  Statutory Authority: RCW 41.06.150(17).  81-13-030 (Order 157), § 356-22-090, filed 6/15/81; Order 49, § 356-22-090, filed 8/17/72; Order 44, § 356-22-090, filed 4/14/72; Order 36, § 356-22-090, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-16-180 and 356-16-190.]

(1) The members of oral examining panels shall be chosen primarily for their ability to judge the qualifications of applicants objectively.  At least one member by past experience and training shall be generally familiar with the nature of the work for which the examination is being given.  Emphasis will be placed on including at least one ((protected)) affected group member on each oral examining board.

(2) No examining panel shall have fewer than two members.  No person holding political office or any officer or committee member of any political organization shall serve as a member of such panel.

(3) If conditions require establishing multiple panels, tests and instructions shall be structured to ensure uniformity of examining conditions and rating standards.

(4) Members of oral examining panels shall disclose each instance in which they know an applicant to the extent that they have formed a prior personal bias for or against an applicant and shall disqualify themselves without rating the applicant or biasing the remaining members.

[Statutory Authority: RCW 41.06.150.  98-19-034, § 356-22-180, filed 9/10/98, effective 10/12/98; 87-02-038 (Order 267), § 356-22-180, filed 1/2/87.  Statutory Authority: RCW 41.06.150(17).  78-04-014 (Order 117), § 356-22-180, filed 3/9/78; Order 36, § 356-22-180, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-16-220.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 87-02-038 (Order 267), filed 1/2/87)

WAC 356-26-010
Registers--Responsibility--Duration--Maintenance.

(1) The establishment, maintenance, and adequacy of all ranked and unranked registers shall be the responsibility of the director of personnel.

(2) A person's standing on a register shall be measured from the date that person's name is placed on the register.

(3) Each register shall indicate the person's geographic availability, available information on ((protected)) affected group status, and other appropriate considerations as determined by the director of personnel.

(4) The director of personnel may, as requested, designate agency personnel officers to act as agents of the department of personnel for the purposes of establishing and/or maintaining ranked and unranked local list registers unique to the employing agency and certifying names therefrom under these ((merit system)) rules.  The director of personnel will be responsible for establishing the necessary procedures which shall include ((a periodic audit of)) monitoring agency activity.  Applicants shall have appeal rights to the director in accordance with all other provisions of the rules.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-26-010, filed 1/2/87; Order 77, § 356-26-010, filed 5/7/75; Order 36, § 356-26-010, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-16-320.]

Upon receipt of a request for certification, the director of personnel shall normally certify to the appointing authority a list of names equal in number to six more than there are vacancies to be filled from the ranked registers except:

(1) One name will constitute a complete certification when referrals are made from the agency reduction in force register, the service-wide reduction in force register, or the dual agency reversion register.  When an appointing authority requests a selective certification for specialized qualifications, the eligible candidate must meet the selective criteria in order to be referred to the position, provided:

(a) The criteria were approved when the position was established, reallocated, or last filled; or

(b) The specialized qualifications were previously required for a classification that was later merged with other classifications that did not require them; or

(c) It has been determined that the position involves new duties that would warrant future selective certification.  Such selective criteria shall not be applied for certification purposes until six months after the department of personnel approves the selective criteria for the position.

(d) In the case of (a), (b), or (c) of this subsection, the director of personnel or designee must determine that the specialized qualifications are still required for successful job performance and cannot be learned within a reasonable length of time.

(2) Where all names are certified exclusively from an open competitive register, the director of personnel may certify in ranked order up to all of the names from the open competitive register: Provided, That the appointing authority shall select from those eligibles available from the highest ranking names which constitute seven names per vacancy to be filled.

(3) The names of candidates from the same register who have the same score as the lowest score to be certified will also be certified.

(4) An unranked register may be used to complete a certification.  An agency may request the transfer, reemployment, and/or voluntary demotion register(s) to complete a certification.  In such cases, all names appearing on the specified register shall be certified.  Subsequent unranked registers shall not be used until the certification is again incomplete.

(5) When the vacancy to be filled is identified as part of an agency's affirmative action goals as established by their approved affirmative action plan, the director of personnel may, except where there are employees on the reduction in force register, refer up to three additional names per vacancy of individuals who are on existing registers and who are ((members of the protected groups)) persons with disabilities, Vietnam Era veterans and disabled veterans, and persons age 40 and above.  More than three additional names per vacancy will be certified if there are ((protected group candidates)) eligibles in these categories with the same score as the lowest score to be certified.  This action may be taken when necessary to comply with the best standards of personnel administration as contemplated by chapter 41.06 RCW.

Prior to the utilization of this subsection, the agency shall determine if there are ((protected group members)) eligibles in these categories on the existing registers.  If there are fewer than three ((protected group members)) such eligibles on the register, the agency shall:

(a) Appoint one of the eligibles from the register; or

(b) Request assistance from the department of personnel in completing the certification.  The department of personnel and the agency will then initiate targeted recruitment.

(6) When one or more of the following conditions exist, the director of personnel or designee may certify a sufficient number of names to assure that the requesting agency has not less than seven names available for consideration:

(a) The position is in an isolated or undesirable location.

(b) The position has undesirable working conditions.

(c) The agency needs to fill several positions in the class.

(d) One or more agencies have had difficulty filling positions in the class.

(e) The director of personnel or designee determines that such certification is necessary to provide the requesting agency with efficient service.

If such certification contains seven or more available promotional candidates, agencies shall appoint from the promotional candidates.

(7) Permanent employees certified from a ranked register for consideration of appointment shall be notified by the agency at the time of the referral.  Upon appointment the agency shall advise those employees certified but not appointed of the action taken.

[Statutory Authority: RCW 41.06.040 and 41.06.150.  93-19-147 (Order 432), § 356-26-060, filed 9/22/93, effective 10/23/93; 93-08-048 (Order 416), § 356-26-060, filed 4/2/93, effective 5/3/93; 91-02-030 (Order 366), § 356-26-060, filed 12/24/90, effective 2/1/91; 90-12-022 (Order 348), § 356-26-060, filed 5/30/90, effective 6/30/90.  Statutory Authority: RCW 41.06.150.  87-24-025 (Order 284), § 356-26-060, filed 11/24/87, effective 1/1/88; 87-02-038 (Order 267), § 356-26-060, filed 1/2/87; 86-21-114 (Order 261), § 356-26-060, filed 10/20/86, effective 12/1/86; 85-23-048 (Order 238), § 356-26-060, filed 11/18/85.  Statutory Authority: RCW 41.06.150(17).  82-19-092 (Order 175), § 356-26-060, filed 9/22/82; 81-20-060 (Order 161), § 356-26-060, filed 10/5/81; 81-03-017 (Order 151), § 356-26-060, filed 1/12/81.  Statutory Authority: RCW 41.06.140(17).  80-04-025 (Order 142), § 356-26-060, filed 3/14/80.  Statutory Authority: RCW 41.06.150(17).  79-12-072 (Order 138), § 356-26-060, filed 11/30/79, effective 1/1/80; 79-11-046 (Order 136), § 356-26-060, filed 10/15/79, effective 1/1/80; Order 112, § 356-26-060, filed 11/7/77; Order 96, § 356-26-060, filed 12/10/76 and 12/20/76; Order 77, § 356-26-060, filed 5/7/75; Order 68, § 356-26-060, filed 6/25/74; Order 66, § 356-26-060, filed 5/28/74; Order 56, § 356-26-060, filed 6/25/73; Order 54, § 356-26-060, filed 4/26/73; Order 36, § 356-26-060, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-20-020.]

The director of personnel will normally certify names from the registers in the following order:

(1) Agency reduction in force register.

(2) Service-wide reduction in force register.

(3) Dual-agency reversion register.

(4) Agency promotional register.

(5) Higher education reduction in force register.

(6) Service-wide reversion register.

(7) Transfer register.

(8) Voluntary demotion register.

(9) Service-wide promotional register.

(10) Reemployment unranked register.

(11) Inter-system employment register.

(12) Open competitive register.

However, if the director of personnel or agency designee with local list authority establish that it is in the best interest of the state to broaden the competition, agencies may request the director of personnel or agency designee to certify names combined from registers (4), (9), (11), and (12) provided:

(a) The written request to the director or agency designee shall be evidence of assurance that:

(i) Such a request will not harmfully affect utilization of ((protected)) affected group members who are applicants for this class.

(ii) If the position is within a collective bargaining unit, the exclusive representative has been provided a copy of the request.

(iii) That the request is in the best interest of the state and not solely intended to circumvent the policy of promotion from within the state as provided in WAC 356-30-150.

(b) Request for combined registers must be made on a position-by position or a class basis and prior to recruitment or referral.

[Statutory Authority: RCW 41.06.150.  95-19-098, § 356-26-070, filed 9/20/95, effective 11/1/95.  Statutory Authority: Chapter 41.06 RCW and RCW 41.06.150.  94-10-008, § 356-26-070, filed 4/21/94, effective 5/31/94.  Statutory Authority: RCW 41.06.150.  84-11-091 (Order 204), § 356-26-070, filed 5/23/84, effective 9/1/84; 83-09-030 (Order 183), § 356-26-070, filed 4/15/83.  Statutory Authority: RCW 41.06.150(17).  81-20-060 (Order 161), § 356-26-070, filed 10/5/81; 79-12-072 (Order 138), § 356-26-070, filed 11/30/79, effective 1/1/80; Order 72, § 356-26-070, filed 1/30/75; Order 36, § 356-26-070, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-20-030.]

All appointments and assignments of work in the state service shall be made on the basis of merit.  However, restrictions based on creed, sex, or disability may be considered by the appointing authority when such restrictions have been approved by the human rights commission as bona fide occupational qualifications.  Appointing authorities need not obtain approval from the human rights commission when taking action to reasonably accommodate a person of disability or when appointing ((a protected group member)) persons with disabilities, Vietnam Era veterans and disabled veterans, and persons age 40 and above from a supplemental referral.

[Statutory Authority: RCW 41.06.150.  87-02-038 (Order 267), § 356-30-010, filed 1/2/87; Order 36, § 356-30-010, filed 7/1/71, effective 8/1/71.  Formerly WAC 356-20-105.]

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