APPEALING THE DECISION TO REALLOCATE YOUR POSITION AS PART OF A CLASSIFICATION SURVEY

Answers to some common questions

 The State of Wisconsin periodically implements classification surveys of certain positions within the State classified service. If you have recently received a reallocation notice that the position you occupy has been reallocated, you have a right to appeal the decision to the Wisconsin Employment Relations Commission. Before you file your appeal, please review the information below which should clarify:

1) some of the limits of the WERC’s authority,

2) the requirements for filing an appeal,

3) the steps taken by the WERC to process a reallocation appeal, and

4) how to access more specific information relating to the appeal process.

[Disclaimer: The following material addresses aspects of some of the more common questions that arise when civil service positions are reallocated as part of a classification survey. The responses are not exhaustive and cannot take into account all of the possible circumstances that are encompassed by the particular question.]

Questions addressed below:

(click on the question to link directly to the answer)

What is a reallocation (and regrade)?

What is a classification survey?

What is the role of the class specifications?

What information was used as the basis for the decision?

Who made the decision?

Why didn’t they talk with me first?

Even with the reallocation of my position, I am not getting paid enough. How did they calculate my new pay rate?

What is the WERC’s role?

What if my position description (PD) is inaccurate?

What if someone else does the same work as I do but is assigned to a different classification?

When does the 30-day period for filing an appeal begin?

What has to be done within the 30 days?

Is there a form I must use for filing an appeal of the reallocation decision?

What information goes into a well-drafted appeal?

Is my case limited to the information found in my letter of appeal?

Why is there a filing fee of $50 for appealing a reallocation decision?

How do I pay the filing fee?

What happens if I don’t pay the fee?

Can I get the $50 back if I win?

What is the WERC address?

How will I know if the WERC has received my appeal?

What if I change my mind?

How long will the process take?

What are some of the key steps in the process once the appeal is filed with the WERC?

Who will I be dealing with at the WERC?

How many cases get to the hearing/arbitration stage of the process?

Who has the burden of proof if the case goes to hearing or arbitration?

What if my position fits within two classifications?

What are the chances that I will win?

Should I hire an attorney?

What is a reallocation (and regrade)?

Reallocation is the reassignment of a position in the classified service from one classification to a different classification for one of several possible reasons. The reason behind the reallocation of positions in a classification survey is that various classification specifications that existed before the implementation of the survey have been abolished and a new classification structure has been established. Every position that had been allocated to one of the abolished classifications has to be reallocated somewhere within the new structure. Implicit in most reallocation actions is the decision to regrade the position incumbent rather than to open the reallocated position to competition.

What is a classification survey?

A classification survey is a process by which information is acquired about certain civil service positions in the State classified service. The information is used for the purpose of assessing the appropriate classification of these and other positions and typically results in both the adoption of new classification specifications and the reallocation of individual positions from the old class structure to the new structure.

What is the role of the class specifications?

Classification specifications are documents that serve as the basic authority for assigning positions to a particular classification. The specifications describe a category of positions in the classified civil service. There are well over a thousand different classifications and each one is described in a written specification.

What information was used as the basis for the decision?

The decision to assign a position to a particular classification is based on an analysis of the duties that are assigned to the position in the context of the available classification structure, as that structure is reflected in the language of classification specifications.

Who made the decision?

In the case of many surveys, representatives of the employing agency are involved in the reallocation process, but the actual decision is typically made by the Division of Personnel Management (DPM). The WERC did not make the decision to reallocate your position.

Why didn’t they talk with me first?

The process of reallocating positions as part of a classification survey is based on only a sampling of all available information. DPM generally uses position descriptions and in-person interviews with employees to gather this information. In some instances, the information may be incorrect or may be misunderstood. The appeal process assures that you will have an opportunity to explain to the WERC why you believe your position would be better described at some existing classification level other than the one to which it was assigned.

Even with the reallocation of my position, I am not getting paid enough. How did they calculate my new pay rate?

Your human resources or payroll staff may be familiar with how pay calculations were made for your position. The WERC realizes that the pay rate is often the focus of an employee’s concern/dissatisfaction with the classification survey and reallocation process. However, an appeal to the WERC directly addresses only the proper classification of the position rather than whether you are being compensated equitably as a consequence of the survey. A typical statement of the question before the WERC might read as follows: “Whether the Respondent’s decision to reallocate the Appellant’s position to [classification A] rather than [classification B] was correct.” The result of this classification determination may well have a secondary effect on your rate of pay, but the WERC’s analysis on appeal is only of the classification structure, rather than of the companion pay structure (including the pay range to which a particular classification has been assigned) or the method of calculating pay. These concepts are discussed further in the following decisions that were issued by either the WERC or by the WERC’s predecessor in this subject area, the Wisconsin Personnel Commission. Department of Employment Relations (Allen), Dec. No. 30722 (WERC, 1/04), citing Kaminski et al. v. DER, Case No. 84-214-PC (Pers. Comm 12/6/84) and Garr et al. v. DER, Case No. 90-0163-PC (Pers. Comm. 1/11/91)

What is the WERC’s role?

In addition to various other responsibilities that are not relevant here, the WERC is an independent agency granted statutory authority to review certain personnel decisions, including reallocation decisions that relate to the State classified civil service. The WERC does not conduct an investigation as part of its review. It ultimately relies on the parties to present relevant information to the Commission upon which the Commission can render a decision. Secs. 230.44 and 45, Stats. The methods for presenting this information to the Commission for consideration are limited by statute.

What if my position description (PD) is inaccurate?

It is not uncommon for an appellant to assert that the position description (PD) relied upon for the reallocation decision was not an entirely complete or accurate description of the duties that were permanently assigned as of the effective date of the decision. If you wish to appeal the reallocation decision and believe your position description is inadequate, you may wish to indicate as much in your letter of appeal. If, after filing an appeal, the parties are unable to agree on the language of an accurate PD and you wish to proceed to hearing or arbitration, you will have an opportunity to offer information to the Commission supporting your view in terms of which duties were actually assigned to the position.

What if someone else does the same work as I do but s/he is assigned to a different classification?

Comparison positions are often an important element in making a classification decision though they may not be determinative. The S may be willing to change the initial reallocation decision upon learning of information that was not considered at the time of the initial decision.

What if I disagree with how the new class specifications were written?

There is a long line of cases concluding that the Commission lacks the authority to rewrite class specifications and that the Commission’s authority is limited to deciding how the existing specifications should be applied to assigned duties. Kaminski et al. v. DER, Case No. 84-214-PC (Pers. Comm 12/6/84)

When does the 30-day period for filing an appeal begin?

The filing period begins on the first day after the effective date of the reallocation decision or the date you are notified of the decision, whichever is later. Sec. 230.44(3), Stats.

What has to be done within the 30 days?

The WERC must actually receive your appeal within the 30 day time limit. An appeal that is received on the 31st day rather than the 30th day is usually deemed to be untimely, even if the appeal was mailed before the 30 day period had ended. There are certain defenses (to what would otherwise be an untimely appeal) that have been recognized in past rulings in this area, but the specifics of the defenses extend well beyond the scope of this webpage.

Is there a form I must use for filing an appeal of the reallocation decision?

No. An appropriate format is simply a letter addressed to the Commission.

What information goes into a well-drafted appeal?

While the absolute legal requirements are quite limited, the Commission recommends that your appeal document reflects 1) yourname; 2) the mailing address, phone number and e-mail address you would like the Commission to use when contacting you; 3) youremploying agency; and 4) one or two paragraphs summarizing why you believe the reallocation decision was incorrect. Please attach a copy of the reallocation notice. If you are aware of a comparison position that appears to support your view of the decision, you may wish to identify the current incumbent in that position. If you are sufficiently familiar with the class specifications to name the classification you feel better describes your position (i.e. better than the classification to which your position was reallocated) then it is helpful to identify the requested class level in your letter of appeal. At some point in the appeal procedure, you will have to specify one or more of such existing classifications. Also, remember there is a filing fee.

Is my case limited to the information found in my letter of appeal?

No. Once you file your appeal, you will have ample opportunity to gather together information tending to support your case.

Why is there a filing fee of $50 for appealing a reallocation decision?

The Wisconsin Statutes impose a fee for appeals filed under Sec. 230.44(1)(a), Stats., as well as several other types of appeals. Sec. 230.45(3), Stats.

How do I pay the filing fee?

Payment should accompany your other appeal materials and can take the form of either a money order or a check prepared by a banking institution (i.e. a certified check, a cashier’s check or a bank check) rather than by you. In other words, do not send a personal check or cash. The certified/cashier’s/bank check or money order should be made payable to the State Treasurer of Wisconsin.

What happens if I don’t pay the fee?

Until the Commission receives the filing fee, the appeal will not be processed further.

Can I get the $50 back if I win?

Under certain limited circumstances, it is possible to recover the filing fee. You would need to prevail on the reallocation question after an administrative hearing before the Commission, file a request for fees and costs under a specific statutory provision and then be awarded costs by the Commission. Sec. 227.485, Stats.

What is the WERC address?

The Commission’s mailing address is 4868 High Crossing Blvd., Madison, WI  53704.

How will I know if the WERC has received my appeal?

If you wish to confirm that the Commission has received an appeal, you may ask the Commission to send you a confirming e-mail, so long as you provide us your e-mail address.

What if I change my mind?

You can withdraw your appeal at essentially any time after it has been filed. However, the filing fee cannot be returned to you.

How long will the process take?

The length of the administrative review process varies significantly. The vast majority of cases never require an administrative hearing but if they do, the process will likely extend for six months.

What are some of the key steps in the process once the appeal is filed with the WERC?

After the Commission has received an appeal of a reallocation decision, the initial steps are typically to schedule and conduct a prehearing conference. The conference is held by telephone and includes an attempt to develop a mechanism by which the parties can resolve the matter informally, without resorting to a formal hearing. The time it takes for the parties to fully explore the possibility of an informal resolution is highly variable. If the parties are unable to reach an agreement and if the appellant wishes to pursue the matter, the appellant chooses between two types of proceedings, an “expedited arbitration” or a contested case hearing. If the case is handled as an arbitration, the member of the Commission’s staff who serves as the arbitrator will convene a meeting with the parties and consider the information presented by both sides (including information from witnesses and in documents) during the meeting before announcing a decision. If the case is handled as a contested case, the Commission staff member (hearing examiner) will schedule a quasi-judicial hearing where the parties will have the opportunity to present witnesses and offer exhibits before submitting post-hearing arguments (often in writing) to the hearing examiner. The examiner’s written proposed decision is mailed to the parties who then have a chance to file objections before the Commission reviews the proposed decision and issues the Commission’s decision.

Who will I be dealing with at the WERC?

Most of your contact will be with one or more of the attorneys employed as staff to the Commission.

How many cases get to the hearing/arbitration stage of the process?

Only a small percentage of cases, possibly one of every five cases that are filed, end up with an actual hearing or arbitration.

Who has the burden of proof if the case goes to hearing or arbitration?

The appellant (employee) has the burden of showing that the reallocation decision made by the State was incorrect.

What if my position fits within two classifications?

In some instances, a position in the classified service will be described by two classifications. The Commission’s responsibility is to determine, based on the evidence that is presented, if a specified alternate classification better describes the collection of duties assigned to the appellant.

What are the chances that I will win?

The probability of success depends on the strength of your case, including how well it is presented. Many of the stronger appeals are resolved short of a hearing.

Should I hire an attorney?

You may choose to represent your own interests before the Commission or you may opt to have an attorney or other representative appear on your behalf. Sec. 230.44(4)(e), Stats. The Commission’s role is that of the neutral decision-maker, so the hearing examiner or arbitrator may not serve as your advocate. It is more common than not for an appellant to appear without an attorney.