EMERGENCY RULES
Date of Adoption: July 25, 2001.
Purpose: The purpose of WAC 356-30-012 and 356-26-140 is to address background checks for applicants and/or current employees within the Department of Social and Health Services. WAC 356-26-030 addresses state job register designations. The purpose of WAC 356-34-090 is for applicants to request reviews regarding different aspects of the application process. WAC 356-30-330 addresses reasons, regulations and procedures for reduction in force.
Citation of Existing Rules Affected by this Order: Amending WAC 356-26-030, 356-26-040, 356-30-330, and 356-34-090.
Statutory Authority for Adoption: RCW 41.06.150.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: The above rule modifications are a result of E2SHB [E2SSB] 5606 that became effective July 22, 2001. E2SHB [E2SSB] 5606 requires the Department of Social and Health Services to conduct background checks on current employees as well as applicants for specific positions.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 4, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
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Repealed 0;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Repealed 0;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 4,
Repealed 0.
Effective Date of Rule:
Immediately.
July 26, 2001
E. C. Matt
Secretary
(2) The requirement for background checks shall include the following:
(a) Any employee seeking a covered position because of a reduction-in-force, reallocation, transfer, promotion or demotion.
(b) Any applicant prior to appointment into a covered position, except when appointment is made on a conditional basis under subsection (6)(b) of this section.
(3) A background check will be conducted on the final preferred candidate prior to appointment.
(4) The secretary of the department of social and health services shall use the results of a background check solely to determine the character, competence and suitability of a person for a covered position. The background check information shall consist of:
(a) Conviction records, pending charges, and disciplinary board final decisions.
(b) Evidence that substantiates or mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:
(i) The employee or applicant's background check authorization and disclosure form;
(ii) The employee or applicant's age at the time of conviction, charge, or disciplinary board final decision;
(iii) the nature and severity of the conviction, charge, or disciplinary board final decision;
(iv) the length of time since the conviction, charge, or disciplinary board final decision;
(v) the nature and number of previous offenses;
(vi) vulnerability of the child, vulnerable adult, or individual with mental illness or developmental disabilities to which the employee or applicant will or may have unsupervised access; and
(vii) the relationship between the nature of the conviction, pending charge, or disciplinary board final decision and the duties of the employee or applicant.
(5) A permanent employee with a background check disqualification is subject to any of the following actions:
(a) Job restructuring;
(b) Job reassignment;
(c) Voluntary demotion;
(d) Voluntary resignation;
(e) Non-disciplinary separation. The employee shall be separated by the appointing authority after fifteen calendar days written notice unless the employee requests a shorter notice period;
(f) Disciplinary action for any of the causes listed in WAC 356-34-010; and/or
(g) Interim measures that may be used while the appointing authority explores the availability of actions (not to exceed 30 calendar days):
(i) Voluntary use of accrued vacation, exchange, and/or compensatory time.
(ii) Authorized leave without pay, if there is no paid leave available, or if the employee chooses not to use paid leave.
(iii) Reassignment to another work location.
(h) When considering the above actions, the agency will consider the least restrictive means necessary to prevent unsupervised access.
(6) The secretary of the department of social and health services shall:
(a) Notify employees and applicants that a background check is required for covered positions;
(b) Develop procedures specifying when employees and applicants may be hired on a conditional basis pending the results of a background check; and
(c) Develop policies and procedures pertaining to background checks.
(d) Notify employees of their promotional register rights when they have been separated from their position, either voluntarily or involuntarily due to a background disqualification.
(7) Failure to authorize the secretary of the department of social and health services to conduct a background check disqualifies an employee or applicant from consideration for any covered position including their current covered position.
(8) An applicant for a covered position who is denied employment due to a disqualifying background check may request a review by the appointing authority.
(a) Requests for review must be in writing and received by the appointing authority within fifteen calendar days of the postmark date of the notification.
(b) If the applicant disagrees with the appointing authority's decision, the applicant may request a review by the director of the department of personnel in accordance with WAC 356-34-090.
(9) A separation under subsection (5)(e) of this section shall not be considered a disciplinary action as set forth in WAC 356-34-010.
(10) Permanent employees may appeal to the personnel appeals board in accordance with RCW 41.06.170 and rules promulgated thereunder including WAC 358-20-010 and WAC 358-20-020.
(11) Nothing in this rule shall limit the secretary of the department of social and health services' use of other authorities to conduct background checks.
(12) Information pertaining to background checks is confidential and shall be used solely for the purpose of determining the character, suitability and competence of the applicant and/or employee. Misuse of background check information is a criminal offense and may result in prosecution and/or disciplinary action as provided under WAC 356-34-010.
(13) The department of social and health services will submit a report to the board by January 31, 2002, reporting actions taken under subsection (5) of this rule and placement of employees into other positions within the agency.
[]
(a) Composition.
(i) The agency reduction in force register will consist of classes and the names of all employees who hold or have held permanent status in those classes and: (A) Have been notified they are scheduled for reduction in force; or (B) held permanent status prior to separation due to a reduction in force; or (C) who have accepted a voluntary demotion in a class in lieu of a reduction in force; or (D) were in a trial service period with another department and separated due to reduction in force; or (E) employees requesting to be placed on this register for classes held immediately prior to the position being reallocated downward; or (F) who were separated due to disability within the last year as provided in WAC 356-35-010 and who have submitted to the director of personnel a current statement from a physician or licensed mental health professional that they are physically and/or mentally able to perform the duties of the class for which the register is established.
(ii) The employee's name shall appear for all classifications for which he/she is not disabled in which he/she held permanent status since the employee's last separation other than a reduction in force, or in which he/she served more than six months on a position which would have meant permanent status had it been under the jurisdiction of the board at the time.
(b) Method of ranking.
(i) This register will be ranked according to seniority.
(c) Life of register.
(i) An eligible's name will normally remain on this register for three years.
(d) Special provisions.
(i) Employees appointed from this register will assume the same status they held prior to the reduction in force. Persons on this register will indicate the geographic areas in which they are available. Appointment of persons from this register to seasonal positions will be as provided in WAC 356-30-130.
(ii) An employee's name shall not appear for classes at or below the range level of a class in which the employee is serving on a permanent full-time basis, except:
(A) When the employee has accepted an option beyond a reasonable commuting distance in lieu of separation due to reduction in force. The employee's name may appear for classes at the same or lower range levels when the availability would return the employee back to his/her previous work location.
(B) When the employee has accepted a position in lieu of separation due to a reduction in force, in a different class series.
(C) Any other exceptions shall be approved by the director or designee.
(2) Service-wide reduction in force.
(a) Composition.
(i) This register will consist of the same names as the agency reduction in force register, except for those requesting to be on the agency reduction in force register following a reallocation downward.
(b) Method of ranking.
(i) This register will be ranked according to seniority.
(c) Life of register.
(i) An eligible's name will normally remain on this register for two years.
(d) Special provisions.
(i) Employees appointed from this register will assume the same status they held prior to the reduction in force. Persons on this register will indicate the geographic areas and departments for which they are available. Appointment of persons from this register to seasonal positions will be as provided in WAC 356-30-130.
(3) Dual-agency reversion.
(a) Composition.
(i) This register will contain the names of employees who while serving a trial service period in another agency or a higher education institution were either voluntarily or involuntarily reverted to their former class and status.
(b) Method of ranking.
(i) This register will be ranked according to total unbroken classified service.
(c) Life of register.
(i) An eligible's name will normally remain on this register for two years.
(d) Special provisions.
(i) This register refers to the agency from which promoted and the agency from which reverted. Employees appointed from this register will assume the status they held prior to promotion. Persons on this register will indicate the geographic area in which they are available.
(4) Agency promotional.
(a) Composition.
(i) This register will be established by appropriate classes for each agency and shall include the names of those current permanent employees of each agency who have served six months of a probationary period, or past permanent employees who have been separated due to reduction in force within the last year and who have received a passing final grade in the total promotional examination and are eligible to be certified. The names of past permanent employees who were separated due to disability within the last year as provided in WAC 356-35-010 shall also be included on this register provided that they submit to the director of personnel a statement from a physician or licensed mental health professional that they are physically and/or mentally able to perform the duties of the class for which the register is established and they have received a passing final grade as required for other promotional applicants. The names of employees in the department of social and health services who have been separated from their position, voluntarily or involuntarily due to a background check disqualification, except through disciplinary action, shall also be included on this register in accordance with subsection (4)(d)(ii) of this section.
(b) Method of ranking.
(i) This register shall be ranked according to final score from the highest to the lowest.
(c) Life of register.
(i) An eligible's name will normally remain on this register for an indefinite period unless replaced by a register established by the use of a substantially new examination.
(d) Special provisions.
(i) An employee may convert any current open competitive rating to this register after six months.
(ii) An employee in the department of social and health services who has been separated from their position, voluntarily or involuntarily due to a background check disqualification, except through disciplinary action, may request placement on this register. The employee must meet the desirable qualifications and pass a qualifying exam for classes that are at the same salary level or lower than the position from which he/she was separated. Employees appointed from this register shall be required to serve a trial service period for classes in which they have not held permanent status. For three years from the date of separation from the position requiring the background check, an employee:
(A) May apply and have his/her name remain on this register for the appropriate classes.
(B) Shall continue to accrue seniority.
(C) Will maintain promotional rights from the position requiring the background check.
Upon appointment from this register the employee's name shall be removed from registers authorized by this subsection.
(5) Higher education reduction in force.
(a) Composition.
(i) This register shall contain the names of permanent employees ranked in order of seniority from higher education institutions or related boards laid off or scheduled for layoff and who have requested placement on this register. The employee's name shall appear for all classifications or equivalent classifications for which the employee held permanent status.
(b) Method of ranking.
(i) This register will be ranked according to seniority.
(c) Life of the register.
(i) An eligible's name will normally remain on this register for two years from the date of placement on the register.
(d) Special provisions.
(i) The employee must request placement on this register within thirty calendar days of the effective date of layoff or previously have requested placement on the inter-system employment register due to layoff. The employee may request placement on lower classes in the same class series or equivalent classes and must demonstrate the ability to meet the minimum qualifications and pass the qualifying examination for classes in which the employee has held permanent status, or lower classes in the same class series, or equivalent classes. Employees appointed from this register shall be required to complete a trial service period of six months.
(6) Service-wide reversion.
(a) Composition.
(i) This register will contain the names of employees who while serving a trial service period in another agency or higher education institution were either voluntarily or involuntarily reverted to their former class and status.
(b) Method of ranking.
(i) This register will be ranked according to total unbroken classified service.
(c) Life of register.
(i) An eligible's name will normally remain on this register for two years.
(d) Special provisions.
(i) This register refers to all agencies, except the two which are involved with the dual-agency transaction. Persons on this register will indicate the geographic areas and agencies for which they are available.
(7) Transfer.
(a) Composition.
(i) This register shall contain the names of all permanent employees who have submitted a request to be considered for transfer.
(b) Method of ranking.
(i) This register will be unranked.
(c) Life of register.
(i) An eligible's name shall normally remain on this register for one year.
(d) Special provisions.
(i) To use this register, the employee must transfer either within the same class or the same pay range having the same salary range number.
(8) Voluntary demotion.
(a) Composition.
(i) This register shall contain the names of all permanent employees who have submitted a request for and are eligible under the rules to be considered for a voluntary demotion.
(b) Method of ranking.
(i) This register shall be unranked. However, employees subject to reduction in force shall have priority.
(c) Life of register.
(i) An eligible's name shall normally remain on this register for one year.
(d) Special provisions.
(i) Employees appointed from this register to a class not previously held will serve a trial service period. All examination ratings for the class from which demoted shall be nullified; however, the employee may be elevated to the class from which demoted with permanent status without benefit of certification provided permanent status was achieved at the higher level.
(9) Service-wide promotional.
(a) Composition.
(i) This register shall contain the names of those permanent employees who have served six months of a probationary period or past permanent employees who have been separated due to reduction in force within the last year who have obtained a passing final grade in the total promotional examination. The names of past permanent employees who were separated due to disability within the last year as provided in WAC 356-35-010 shall also be included on this register provided that they submit to the director of personnel a statement from a physician or licensed mental health professional that they are physically and/or mentally able to perform the duties of the class for which the register is established and they have received a passing final score as required for other promotional applicants.
(b) Method of ranking.
(i) This register shall be ranked according to final score, from the highest to the lowest.
(c) Life of register.
(i) An eligible's name will normally remain on this register for an indefinite period unless replaced by a register established by the use of a substantially new examination.
(d) Special provisions.
(i) An employee may convert any current open competitive rating to this register after six months. Persons on this register will indicate the geographic areas and agencies for which they are available.
(10) Reemployment.
(a) Composition.
(i) This register shall contain the names of all past permanent employees who have submitted a request and an application for reemployment within five years from the date of separation, provided that the names of employees separated for cause while performing similar duties shall not be placed on this register except with the approval of the agency from which they were separated for cause. This register shall also contain the names of those employees who have been in reversion or reduction in force status and have been offered and declined employment. The director of personnel may extend the time during which an employee may apply for reemployment if the director of personnel has determined that a need for eligibles exists in a certain class and/or geographical area.
(b) Method of ranking.
(i) This register shall be unranked.
(c) Life of register.
(i) An eligible's name will normally remain on this register for two years.
(d) Special provisions.
(i) Persons reemployed from this register will serve a probationary period. The former employee may limit or enlarge upon his/her area of availability either by department or geographic area.
(11) Inter-system employment.
(a) Composition. This register shall contain the names of permanent classified employees at higher education institutions who have submitted an application and who have passed the required examination.
(b) Method of ranking. This register shall be ranked according to final passing score from the highest to the lowest.
(c) Life of register. An eligible's name will normally remain on this register for one year.
(d) Special provisions. Employees appointed from this register will serve a six month trial service period.
(12) Open competitive.
(a) Composition.
(i) This register will contain the names of all persons who have passed the entrance examination.
(b) Method of ranking.
(i) This register shall be ranked by the final score.
(c) Life of register.
(i) An eligible's name will normally remain on this register for one year unless changed by the director of personnel.
(d) Special provisions.
(i) Persons on this register will indicate the geographic areas for which they are available.
[Statutory Authority: RCW 41.06.150. 98-19-034, 356-26-030, filed 9/10/98, effective 10/12/98. Statutory Authority: Chapter 41.06 RCW and RCW 41.06.150. 94-10-008, 356-26-030, filed 4/21/94, effective 5/31/94. Statutory Authority: RCW 41.06.040 and 41.06.150. 93-12-088 (Order 421), 356-26-030, filed 5/28/93, effective 7/1/93. Statutory Authority: RCW 41.06.150. 85-14-008 (Order 224), 356-26-030, filed 6/24/85; 85-05-030 (Order 217), 356-26-030, filed 2/15/85; 84-14-006 (Order 207), 356-26-030, filed 6/22/84; 84-11-091 (Order 204), 356-26-030, filed 5/23/84, effective 9/1/84; 83-01-115 (Order 179), 356-26-030, filed 12/22/82. Statutory Authority: RCW 41.06.150(17). 82-19-092 (Order 175), 356-26-030, filed 9/22/82; 81-20-060 (Order 161), 356-26-030, filed 10/5/81; 80-13-047 (Order 147), 356-26-030, filed 9/16/80; Order 58, 356-26-030, filed 9/10/73; Permanent and Emergency Order 50, 356-26-030, filed 10/19/72; Order 40, 356-26-030, filed 12/10/71; Order 36, 356-26-030, filed 7/1/71, effective 8/1/71. Formerly WAC 356-16-330, 356-16-340, 356-16-350, 356-16-360, 356-16-370, 356-16-380, 356-16-390, 356-16-400.]
(1) The department of social and health services shall conduct background checks on employees in covered positions and persons under final consideration for a covered position in accordance WAC 356-30-012.
(((2) The department of social and health services shall
ensure that all applicants being considered for positions covered
by this section are aware of the background inquiry requirement.
(3) Positions covered by this section are all positions which have either a direct or supervisory accountability for the supervision, care, or treatment of residents or clients who are children, developmentally disabled, or mentally ill persons. Positions assigned duties that provide access to residents or clients who are either children or developmentally disabled, or mentally ill persons, but which are not directly accountable for their supervision, care, or treatment are not covered by this section.
(4) A background inquiry shall be completed on the applicant prior to any permanent or nonpermanent appointment into a position covered by this section, except as waived by the secretary of the department of social and health services or designee. The inquiry shall be conducted only with the applicant's written authorization. Failure to provide written authorization shall disqualify the applicant for both appointment and referral to positions covered by this section. Employees who at the time of consideration for appointment have current probationary, trial service or permanent status in positions covered by this section are exempt from the background inquiry requirement.
(5) A background inquiry shall be completed on applicants prior to an intermittent appointment to a position covered by this section. Individuals on intermittent appointments in positions covered by this section may not exceed twelve continuous months in such an appointment unless they are cleared following a subsequent background inquiry.
(6) Inquiry findings to be considered in determining the applicant's character, suitability and competence to perform in the position shall be limited to:
(a) Conviction of a felony directly related to the position sought if the date of conviction is less than ten years ago. Such conviction will not be considered if it has been the subject of a pardon, annulment or other equivalent procedure based on a finding of innocence.
(b) Conviction of a felony directly related to the position sought, if the date of conviction is more than ten years ago but the date of prison release is less than seven years ago. Such conviction will not be considered if it has been the subject of a pardon, annulment or other equivalent procedure based on a finding of innocence.
(c) Pending felony charges directly related to the position.
For purposes of applying subsection (6)(a) through (c) of this section, the following offenses shall be considered directly related to all positions covered by this section: All crimes involving physical harm or threat of physical harm to persons; all sex related offenses; all public indecency/prostitution offenses; and all offenses identified as being against children or developmentally disabled persons, or mentally ill persons.
(d) Disciplinary board final decisions.
(e) Any combination of two or more felony convictions for drug related or malicious harassment offenses if the date of conviction is less than seven years ago. Such conviction will not be considered if it has been the subject of a pardon, annulment or other equivalent procedure based on a finding of innocence.
(f) Conviction of or pending charges for a gross misdemeanor or misdemeanor involving either a minor or prostitution for which the date of conviction or jail release, whichever is more recent, is less than seven years ago.
(7) If the inquiry reveals information listed under subsection (6) of this section, no appointment decision shall be made prior to providing the applicant with an opportunity to present evidence to the appointing authority that the inquiry findings should have no bearing on the applicant's character, suitability and competence to perform in the position. In reviewing the inquiry findings, the appointing authority shall take into consideration the recentness and seriousness of the crime, the number of previous offenses, the likelihood of rehabilitation, as well as the vulnerability of the clients to be cared for in determining the applicant's character, suitability, and competence to perform in the position.
(8) An applicant who has been notified of inquiry findings may appeal, pursuant to WAC 356-34-090, the appointing authority's decision not to appoint him or her only after having requested and completed the review provided in subsection (7) of this section.
(9) Background inquiry information is confidential and shall be used solely for the purpose of determining the character, suitability and competence of the applicant. Misuse of background inquiry information is a criminal offense and may result in prosecution and/or disciplinary action as provided under WAC 356-34-010.))
[Statutory Authority: RCW 41.06.150 and chapters 43.43 and 72.23 RCW. 89-19-062 (Order 329), 356-26-140, filed 9/20/89, effective 10/21/89. Statutory Authority: RCW 41.06.150. 87-06-024 (Order 271), 356-26-140, filed 2/24/87.]
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 98-19-034, filed 9/10/98,
effective 10/12/98)
WAC 356-34-090
Protests -- Requirements for applicants,
examinees, and eligibles.
(1) An applicant whose application has
been rejected; an examinee who feels that the examination is
unfair, or not applied uniformly, or that the score is in error
or not uniformly derived; an eligible whose name has been removed
from the register and/or certification; or an applicant who is
not appointed following a background ((inquiry)) check and review
conducted pursuant to WAC ((356-26-140)) 356-30-012 may request a
review by the director of personnel or designee. The request
must be in writing and received at the director of personnel's
office within twenty calendar days following the postmarked date
of the notification of the application rejection, examination
score, removal from a register and/or certification, or the
appointing authority's decision.
(2) The director of personnel or designee shall notify the party requesting a review of the date and place of the review at least ten calendar days prior to the review. The review shall be informal and conducted by the director of personnel or designee. The director of personnel or designee may limit attendance of other interested parties if good order, justice, and fairness will be promoted. Within ten calendar days following the review and the receipt of any additional necessary information, the director of personnel or designee shall issue a written determination and send a copy to each of the participating parties.
(3) An adversely affected party may request a hearing of the board to review the determination of the director of personnel or designee. The request for a board hearing must be in writing and received at the director of personnel's office within twenty calendar days following the postmarked date of the notification of the director's or designee's determination. A hearing before the board shall be scheduled and each party shall be afforded not less than ten calendar days' notice. The board will issue a written decision which will be final.
[Statutory Authority: RCW 41.06.150. 98-19-034, 356-34-090, filed 9/10/98, effective 10/12/98. Statutory Authority: RCW 41.06.040 and 41.06.150. 93-02-040 (Order 414), 356-34-090, filed 1/5/93, effective 2/1/93. Statutory Authority: RCW 41.06.150. 87-13-040 (Order 278), 356-34-090, filed 6/15/87, effective 8/1/87; 87-06-024 (Order 271), 356-34-090, filed 2/24/87; 86-08-035 (Order 244), 356-34-090, filed 3/26/86, effective 5/1/86; Order 87, 356-34-090, filed 5/4/76, effective 6/5/76; Order 81, 356-34-090, filed 8/21/75, effective 9/21/75; Permanent and Emergency Order 50, 356-34-090, filed 10/19/72; Order 36, 356-34-090, filed 7/1/71, effective 8/1/71. Formerly WAC 356-28-020.]
(2) When employees have statutory and merit system rule rights to return to the classified service, such employees first shall be returned to the classification selected. If such return causes the total number of employees to exceed the number of positions to be filled in the classification, the least senior person in the position shall have the reduction in force rights prescribed in this section.
(3) The agencies shall develop a reduction in force procedure that is consistent with the following:
(a) For purposes of reduction in force (WAC 356-30-330), seniority shall be determined by the definition in WAC 356-05-390. Ties in seniority will be broken by first measuring the employees' last continuous time within their current classification; if the tie still exists, by measuring the employees' last continuous time in their current agency; and if the tie still exists, by lot.
(b) Clearly defined layoff units, either geographically or by administrative units or both, so as to limit the disruption of an agency's total operation; but not to unduly restrict the options available to employees with greater seniority. The definition of layoff units may be a series of progressively larger units within an agency when a valid option in lieu of separation cannot be offered to respective employees within a lesser-sized unit. Employment projects, established under the provisions of WAC 356-30-145, Project employment, are distinct layoff units, separate and exclusive of any other defined layoff unit or employment project. Seasonal career layoff units, established under the provisions of WAC 356-30-130, Seasonal career employment, are distinct layoff units, separate and exclusive of any other defined layoff unit.
(c) Options in lieu of separation by reduction in force shall be offered by an agency only when such options are in accordance with the agency's reduction in force procedure which has been approved by the director of personnel.
(d) Agency reduction in force procedures shall specify the rights and obligations for employees to accept or reject options offered in lieu of separation due to reduction in force.
(e) "Bumping" by employees with greater seniority will be limited to:
(i) The same layoff unit; and
(ii) Classification in which the "bumping" employee previously held permanent status; and
(iii) Position at the current salary range of the employee doing the bumping, or lower; and
(iv) Employee with the least seniority within the same category of full-time or part-time employment; and
(v) Competition at one progressively lower classification at a time.
(f) An employee may not exercise a bumping option in lieu of separation due to a reduction in force if there is within the agency a vacant position which satisfies all of the criteria set forth below.
The position is one which:
(i) The agency intends to fill;
(ii) Is in the current classification of the employee being offered the option, or in a classification within which the employee being offered the option previously held permanent status;
(iii) Is at a salary range no lower than the range that would have otherwise been a bumping option;
(iv) Is located within a reasonable commuting distance of the employee's permanent work location; and
(v) Is on the same or similar workshift as the one which the employee currently holds.
(g) When an employee has previously held permanent status in more than one classification at the same salary range and is eligible to bump, then the employee shall be offered the option to bump into the position occupied by the employee with the least seniority.
(h) The right to actually "bump" shall be exercised only after the employee to be "bumped" has received at least fifteen calendar days' notice of the scheduled action.
(i) Options of full-time positions will be offered first to full-time employees before part-time positions are offered. For the purpose of these offers, employees who previously accepted part-time positions due to a reduction in force action or to lessen the impact of a reduction in force shall be considered full-time employees.
(j) Seniority for part-time employees will be computed on a basic payroll hour basis within the same provision and restrictions of the general definition of seniority. When part-time employees become full-time employees, their payroll hours will be integrated on a comparable time basis as full-time employees.
(k) Permanent employees who have been scheduled for reduction in force shall have the right to take a transfer or a voluntary demotion to a vacancy that is to be filled in their own layoff unit for which they qualify, as determined by the director of personnel. This right is to be exercised according to the seniority of those desiring the same vacancy.
(l) Options of other than permanent positions as named in (m) of this subsection are to be made if no permanent position to be filled is available within a reasonable commuting distance.
(m) The reduction in force procedure shall contain the statement that, "No permanent employee shall be separated from state service through reduction in force without being offered within fifteen calendar days prior to what would be the permanent employee's effective separation those positions at the same or lesser salary range within the layoff unit for which he/she qualifies, currently being held by emergency, temporary, probationary, or intermittent employees."
(n) The salary of an employee who has accepted a lower position will be reduced to the top of the range of the lower class unless the previous salary is within the range of the new class, in which case it will remain unchanged.
(4) The agency shall submit the procedure to the director of personnel for approval.
(5) Vacancies will not be filled either by local list procedures or on a temporary, intermittent, or seasonal basis without contacting the department of personnel in an effort to fill the positions by qualified employees who have been or are scheduled for separation due to reduction in force.
(6) When a majority of the positions in a layoff unit other than in project employment is to be eliminated because of a lack of funds and/or work, permanent employees in such positions shall be offered, according to their seniority, those positions in classes in which they have held permanent status which are currently being held by emergency, temporary, or probationary employees; provided they have not rejected offers of vacant positions made by certifications from the registers. Such options shall be offered in accordance with the following requirements:
(a) Positions in the employee's own agency and within a reasonable commuting distance shall be offered first; second, in the classified service within a reasonable commuting distance; third, anywhere within the employee's own agency; and fourth, throughout the classified service.
(b) A permanent employee's right to fill a position may be exercised only within fifteen calendar days prior to the effective date of separation.
(c) Offers will be made in accordance with a procedure established by the director of personnel.
(7) In order to exercise an option to a position which may require selective criteria, the following applies. The option may be exercised only by an employee who possesses the required specialized qualifications when:
(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) When, at a subsequent time, it was determined that the position requires the performance of specialized duties that would warrant future selective certification.
(d) In the case of (c) of this subsection, the selective criteria shall not be applied for the purposes of determining reduction in force options until six months after the notification of the new duties has been made to the department of personnel.
(e) In the case of (a), (b) and (c) of this subsection, the director of personnel or designee must have determined that the specialized qualifications are still essential for the successful job performance and the qualifications could not be learned within a reasonable length of time.
(8) Options to positions which are covered by WAC
((356-26-140)) 356-30-012 may be exercised only by employees who,
at the time they are notified they are scheduled for reduction in
force((:)), have authorized a background check as provided for in
WAC 356-30-012 and are not disqualified for the available option
as a result of the background check.
(((a) Are exempt from a background inquiry by WAC 356-26-140(4); or
(b) Authorize a background inquiry as provided for in WAC 356-26-140 and are cleared for the option as a result of the inquiry.))
[Statutory Authority: RCW 41.06.150. 96-02-073, 356-30-330, filed 1/3/96, effective 2/3/96. Statutory Authority: RCW 41.06.040 and 41.06.150. 92-20-026 and 92-22-042 (Orders 411 and 411A), 356-30-330, filed 9/28/92 and 10/27/92, effective 11/1/92 and 11/27/92; 91-23-106 (Order 394), 356-30-330, filed 11/20/91, effective 12/21/91. Statutory Authority: RCW 41.06.150. 88-18-096 (Order 308), 356-30-330, filed 9/7/88, effective 11/1/88; 87-06-024 (Order 271), 356-30-330, filed 2/24/87; 85-19-080 (Order 232), 356-30-330, filed 9/18/85; 85-09-030 (Order 221), 356-30-330, filed 4/12/85. Statutory Authority: RCW 41.06.150, 41.06.175, 41.06.185, 41.06.195 and 41.06.205. 84-17-042 (Order 209), 356-30-330, filed 8/10/84. Statutory Authority: RCW 41.06.150. 83-24-002 (Order 193), 356-30-330, filed 11/28/83; 83-13-091 (Order 186), 356-30-330, filed 6/17/83; 83-08-010 (Order 181), 356-30-330, filed 3/25/83; 83-01-115 (Order 179), 356-30-330, filed 12/22/82. Statutory Authority: RCW 41.06.150(17). 82-19-092 (Order 175), 356-30-330, filed 9/22/82; 81-20-060 (Order 161), 356-30-330, filed 10/5/81; Order 112, 356-30-330, filed 11/7/77; Order 63, 356-30-330, filed 2/26/74; Order 58, 356-30-330, filed 9/10/73; Order 36, 356-30-330, filed 7/1/71, effective 8/1/71. Formerly WAC 356-24-400.]
Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.