Testimony on Assembly Bill 373
Assembly Committee on State Affairs and Government Operations


It’s no secret that the State of Wisconsin’s workforce is facing a two-fold dilemma: an aging workforce and an inefficient hiring process for state workers. Within 10 years, nearly 40 percent of our state’s employees will be eligible for retirement. Meanwhile, it can often take several months for the state to advertise a position, conduct interviews and make a hire. The overarching purpose of Assembly Bill 373 is to proactively address this growing problem by updating our state’s recruiting process, rewarding exemplary employees, and providing a fair and reasonable due process system for the use of state employees.

Let me be very clear, it’s important to first highlight that this bill maintains the integrity of our state’s strong civil service protections. Since Governor La Follette approved Wisconsin’s civil service law in 1905, Wisconsin has had a long, proud history of attracting the best and the brightest to work for the people of our state. This bill isn’t looking to diminish this. Instead, with this legislation, we’re simply taking steps to keep pace with a changing workforce and updating our current law to meet the needs of a 21st century job market.

This legislation includes changes in four areas: the hiring process, merit pay, the definition of “just cause,” and the appeals process.

First, AB 373 seeks to modernize our state’s hiring process to enable the state to attract top-quality employees. That’s difficult to do under our state’s current hiring structure which allows agencies an exorbitant amount of time to hire. The current expectation is for an agency to fill a position in 105 days. But some agencies have reported up to 239 days to hire and even eight months for certain IT positions. As an employer, when we’re competing for the best and brightest to serve our state, it’s naïve to think that applicants will wait for months before they find out if they have an interview or are offered a job. This bill expedites the hiring process by setting a 60-day hiring goal, allowing 30 days for an agency and the Division of Personal Management (DPM) to post a job and collect resumes, and 30 days for the agency to conduct interviews and make the final hire.

The entire hiring process by state agencies will also become more consistent under this bill. The Division of Personal Management, formerly OSER, will serve as a centralized human resource agency and assist agencies with such tasks as posting vacancies and conducting interviews. Each agency will still offer positions and make hires based upon their leadership’s decision.

Another way that the state can reflect the best-practice hiring methods of the private sector is to transition towards a resume-based system. State agencies are currently required to administer an exam-based system to each applicant applying for a classified civil service position. As has been noted by myself and other in recent weeks, there have been instances where we’ve learned that these exams may be manipulated or serve as an unneeded detriment to someone applying for a job. For those who have applied for work in the private sector or have been involved in a hiring process, I believe most would agree that a resume-based system is a far more recognized tool in identifying an applicant’s skillsets.

Also included in these hiring reforms is a measure to “ban the box.” In other words, unless a conviction record disqualifies applicants from a civil service position, the state would be prohibited from asking an applicant to supply information about a conviction record as a part of their application process. By including this provision, it provides every applicant going through this process with an equal opportunity and helps to further ensure we’re evaluating candidates based upon their experience and merit.

The hiring process reforms will continue to provide a preference for veterans and certain spouses of veterans in the hiring process for a classified position in the civil service. Under the bill, if a veteran or qualifying spouse of a veteran is included on a certification list, the appointing authority must offer an interview to the veteran or spouse of a veteran. Additionally, after interviewing candidates for a position, if minimum qualifications, skills, abilities, competencies, and knowledge are equal among the candidates, an appointing authority shall give a preference to the veteran. This replaces the current system where veterans and their spouses receive preference points which are applied during the process of creating a certification list for a position.

Once we attract top-quality employees to work for our state, our next challenge is to retain them. We want state employees to know that their service is valued and if their work is exemplary, they should be awarded accordingly. Currently, there are no consistent performance evaluations across state agencies. This bill requires the administrator of DPM to create a discretionary merit award program and provide additional funding to state agencies for the purpose of providing lump sum monetary awards to classified employees whose performance exceeds agency expectations. The administrator then distributes the allotted funding appropriated for this purpose to state agencies to make the lump sum merit awards to classified employees. The bill establishes a sum of $6 million to be used for these merit pay awards. Essentially, our goal is to create a system that values our workers potential by recognizing their skills and abilities.

This bill also moves to standardize the length of an employee’s probationary period as opposed to the current system of varying periods. In conversations with state agencies, a common concern was how critical a time the probationary period is in determining if an employee is a good worker or capable of their assigned duties. That’s why this bill changes the standard probationary period from six months to two years with a potential waiver after one year. For employees that excel in their positions early on, agencies will be free to reward their performance by waiving the second year of probation. For those that are not coming along as quickly, this allows them additional time to grow into the position before the agency has to make the ultimate decision about their long term prospects.

The bill also makes some common-sense changes in the way layoffs are conducted. Under this bill, layoffs will no longer be based solely on retirement, but instead be determined by a combined evaluation of job performance, seniority and disciplinary records. Again, the goal is to have the best possible workforce serving the taxpayers.

Another common complaint we’ve heard from state agency officials is the fluid definition of “just cause.” Under current law, an employee who has received permanent status can only be terminated or demoted for “just cause.” However, with no clear definition, a cloud of confusion currently hangs over employees. That’s why this legislation clearly defines the term by outlining specific, egregious acts that would constitute the state’s ability to immediately part ways with an employee.

AB 373 defines “just cause” to mean performance and personal conduct that is inadequate, unsuitable or inferior after progressive discipline. In some instances however, serious offenses may warrant immediate termination. Serious offenses are considered the following: 
• Physical violence or harassment while on duty
• Being intoxicated, under the influence, or possession of a controlled substance while on duty
• Theft of state property
• Conviction of a crime, if it makes it impossible for the employee to perform their duties
• Falsifying business records
• Misuse or abuse of property, including intentional use of workplace equipment to download, view, solicit, seek, display or distribute pornographic material
• No call/no show for any three working days in a calendar year

Taxpayers expect state agencies to take appropriate disciplinary action for misconduct. These reforms align the state on the side of common sense and eliminate gray area surrounding the state’s ability to terminate employment. Ultimately, clarifying “just cause” gives employees certainty in their job by making it clear what is unacceptable workplace behavior.

Even after an employee has engaged in obvious acts of indiscretion, it can currently take years to reprimand the individual because of lengthy appeals processes. At any given time there may be dozens of state employees on paid leave while waiting pending appeals, costing precious taxpayer dollars, and adding the burden of the employee's workload to other employees often costing the state even more because of overtime costs. With these reforms, due process in appealing a decision by the employer is maintained, however there will also be a straightforward appeals process that aims to reduce the dispute time by a year.

To begin the grievance process, an employee must file a complaint challenging the adverse employment decision with the employee’s appointing authority no later than 14 days after the employee is notified. The appointing authority then begins an investigation, meets with the employee, and issues a written decision no later than 14 days after receiving the complaint. To appeal the decision, an employee must file a complaint with DPM no later than 14 days after the decision. Within 30 days of receiving a complaint, the administrator must review the complaint and issue a written decision. If an employee wants to appeal the administrator’s written decision, they can file an appeal with the Employment Relations Commission (WERC) no later than 14 days after the decision. If WERC determines that all of the procedural requirements for an appeal of an adverse employment decision have been satisfied, it will hear the employee’s appeal under its standard process except that a decision must be made no later than 120 days after the appeal is filed.

In closing, I believe strongly that this bill represents an opportunity for the Legislature to be proactive in preserving the strength of our civil service system while keeping pace with a changing workforce. I believe this bill to be both pro-worker in its ability to reward our great state employees and pro-taxpayer in its ability to help streamline and further improve government efficiency. I am pleased to see the strong support this bill has already received, and I look forward to answering your questions.