Section 22.08. Alternatives to termination from the service as a result of layoff.

  If an employee with permanent status in a class has received a notice of layoff under s. ER-MRS 22.07 these alternatives shall be available in the order listed below until the effective date of the layoff. Employees in the same layoff group who are laid off on the same date shall have the right to exercise the following alternatives to termination from the service as a result of layoff in direct order of their seniority, most senior first:

(1)   Transfer.

(a) All employees who have received a notice of layoff have the right to transfer:

1. Within the employing unit, to any vacancy in the same or counterpart pay range for which the employee is qualified to perform the work after being given the customary orientation provided to newly hired workers in the position; or

2. Within the agency, to any vacancy in the approved layoff group from which the employee is being laid off for which the employee is qualified to perform the work after being given the customary orientation provided to newly hired workers in the position.

(b) An employee who transfers within the agency as an alternative to termination from the service immediately attains permanent status in class in the class to which the employee transfers, except that:

1. An employee who is serving a promotional probationary period must complete that probationary period in the new position.

2. An employee who is serving a permissive probationary period may be required to complete that probationary period in the new position.

3. An employee who transfers to a position in a different employing unit of the same agency may be required to serve a probationary period in accordance with s. 230.28 (1) (am) or (4) , Stats., as applicable. During this probationary period, the employee may be removed from the position without the right of appeal and restored to his or her former position or transferred to a different position. If the employee's former position has been abolished, and there is no other vacant position in the agency in the same or counterpart pay range for which the employee is qualified to perform the work after being given the customary orientation provided for a newly hired worker, the employee shall be treated as if he or she had been restored to the previous position, and the provisions for making layoffs under this chapter shall apply.

(c) An employee who transfers between agencies as a result of layoff may be required by the appointing authority to serve a probationary period, except that an employee who is serving a promotional probationary period must complete that probationary period in the new position. In addition, an employee who is serving a permissive probationary period may be required to complete that probationary period in the new position. If on probation, the employee may be terminated without the right of appeal. However, if terminated while on probation as a result of transfer between agencies as a result of layoff, the employee shall have restoration rights under s. ER-MRS 22.10 (2) . If the employee is not required to serve a probationary period, the employee immediately attains permanent status in class in the class to which the employee has transferred.

(2)   Demotion as a result of layoff. If no transfer under sub. (1) is available and if there is a vacancy available for which the employee is qualified to perform the work after being given the customary orientation provided to newly hired workers in such positions, in a higher level position than could be obtained through displacement under sub. (3) , an appointing authority shall offer the employee a demotion to that vacancy. This offer shall be subject to the criteria for a reasonable offer of appointment under s. ER-MRS 22.09 and the following:

(a) Within an agency. An employee may demote to a position in a lower classification in the same agency in lieu of being terminated as a result of layoff.

1. An employee demoted under this sub. immediately attains permanent status in class in the class to which the employee is demoted, except that an employee demoted to a position in a different employing unit of the same agency may be required to serve a probationary period in accordance with s. 230.28 (1) (am) or (4) , Stats., as applicable. During this probationary period, the employee may be removed from the position without the right of appeal and restored to his or her former position or transferred to a different position. If the employee's former position has been abolished, the employee shall be given consideration for any vacancy within the agency in the same or counterpart pay range for which the employee is qualified to perform the work after being given the customary orientation provided for newly hired workers. If no such vacancy exists, the employee shall be treated as if he or she has been restored to the previous position, and the provisions for making layoffs under this chapter shall apply.

2. For pay provisions regarding an employee who is demoted by the appointing authority, as a result of a layoff to the highest level vacancy available for which the employee is qualified, see s. ER 29.03 (8) (c) or the compensation plan.

3. For pay provisions regarding an employee who chooses, with the approval of the appointing authority, to be demoted as a result of layoff to a vacancy which is at a lower level than other available vacancies to which the employee could be demoted, see s. ER 29.03 (8) (d) 1. or the compensation plan.

(b) Between agencies. An employee may demote to a position in a lower classification in a different agency in lieu of being terminated as a result of layoff.

1. The employee may be required to serve a probationary period at the discretion of the appointing authority, and if during this period the employee's services are found to be unsatisfactory, the employee may be terminated without the right of appeal. However, if terminated while on probation, the employee shall have restoration rights under s. ER-MRS 22.10 (2) . If the employee is not required to serve a probationary period, the employee immediately attains permanent status in class in the class to which the employee is demoted.

2. An employee who demotes as a result of layoff between agencies shall have his or her pay determined under s. ER 29.03 (8) (d) 2. or the compensation plan.

(3)   Displacement.

(a) If there is no position obtainable under subs. (1) and (2) at the same or higher level than any position obtainable under this subsection, an employee may exercise a right of displacement within the employing unit.

1. The employee may exercise the right of displacement in the order which will achieve the highest level position to which the employee has rights. If qualified to perform the work after customary orientation provided for newly hired workers in such positions, an employee may exercise the right of displacement only to one of the following:

a. A position in the same or counterpart pay range in which the employee had previously attained permanent status in class.

b. A lower level within the employee's present classification series.

c. A position in a lower class in which the employee had previously attained permanent status in class.

d. A lower level within an approved progression series in which the employee had previously attained permanent status in class at a higher level.

2. If the employee has previously attained permanent status in class in a position whose classification had been affected by an action of the administrator, the employee shall immediately attain rights to the classification which replaced the original classification of the position previously held by the employee.

3. Exercise of such displacement rights does not guarantee the employee a position in the class or subtitle selected. It only requires the employee to be included along with other employees in the class or subtitle when the layoff process as provided in s. ER-MRS 22.06 is applied to determine which employee is laid off as a result of displacement.

4. An employee who elects to exercise displacement rights has 5 calendar days from the date of written notification of impending layoff or receipt of such written notification, whichever is later, to exercise that option.

5. If there is more than one position in the same or counterpart pay range to which the employee is eligible to exercise the right of displacement, the appointing authority may designate the position to which the employee shall first exercise the right of displacement.

(b) An employee who exercises displacement rights within the employing unit as a result of layoff immediately attains permanent status in class in the class into which the employee has been placed.

(c) An employee who exercises displacement rights shall have his or her pay determined under s. ER 29.03 (8) (c) or the compensation plan.

History: Cr. Register, October, 1972, No. 202 , eff. 11-1-72; emerg. am. 4-25-75; am., Register, September, 1975, No. 272 , eff. 10-1-72; (intro.), (1) and (2) renum. from Pers 22.04 and am., r. (3) and (4), cr. (3), Register, February, 1981, No. 302 , eff. 3-1-81; am. (intro.), (1) (a) 1. and 2., (b) and (c), cr. (1) (b) 3., renum. (2) and (3) to be (3) and (2) and am., Register, February, 1983, No. 326 , eff. 3-1-83; am. (1) (a) 1. and 2., (b) 3., (2) (intro.) and (a), (b) 2., (3) (a) and (c), Register, May, 1988, No. 389 , eff. 6-1-88; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, October, 1994, No. 466 ; emerg. am. (3) (a) 1., eff. 6-12-95; am. (3) (a) 1., Register, December, 1995, No. 480 , eff. 1-1-96; CR 04-138 : am. (2) (a) 2. and 3., (2) (b) 2., (3) (a) 2. and (3) (c) Register June 2005 No. 594 , eff. 7-1-05; correction in (3) (a) 2. made under s. 13.92 (4) (b) 6., Stats., Register September 2015 No. 717 .