DAR File No. 27170

Human Resource Management, Administration

R477-12

Separations

NOTICE OF PROPOSED RULE

DAR File No.: 27170
Filed: 05/14/2004, 03:11
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The proposed amendments are a clarification of policy for an employee resignation and make an important policy change for an employee's rights in a reductions in force and make various nonsubstantive changes.

Summary of the rule or change:

In Section R477-12-1, this amendment is designed to make it clear that a notice of resignation and a withdrawal of that notice must be made to the immediate supervisor or another appropriate person in the employee's "chain of command" or "management team". It also requires a written follow up within 24 hours of the withdrawal if it is made orally. In Section R477-12-3, new language is added as a basic policy change designed to give the RIF'd employee more options for reemployment by the state. The RIF'd employee is no longer limited to jobs where he has an "interchangeability of skills" which is defined tightly as a job the employee has held or supervised (Subsection R477-1-1(67)). This amendment allows the employee to be placed in a job for which he meets the qualifications. This will allow the employee to take advantage of all his job skills and opens up a larger number of possible employment opportunities with the state. All other amendments to this rule are nonsubstantive corrections or replacement of words consistent with changes in definitions.

State statutory or constitutional authorization for this rule:

Sections 67-19-6, 67-19-17, and 67-19-18

Anticipated cost or savings to:

the state budget:

Amendments to this rule will require no changes to the operating procedures or practices of state agencies and thus will generate no costs or savings.

local governments:

By law, Section 67-19-15, this rule has no effect beyond the executive branch of state government.

other persons:

By law, Section 67-19-15, this rule has no effect beyond the executive branch of state government.

Compliance costs for affected persons:

By law, Section 67-19-15, the Department of Human Resource Management's (DHRM) rules effect only persons employed by the executive branch of state government. Rule amendments that create a cost for an employee will either impose a fee for a choice which an employee may make or will cancel a monetary benefit that an employee currently enjoys because of rule. The amendments to this rule will do neither of these as they clarify the procedure for submitting and retracting a resignation.

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. Section 67-19-15 limits the provisions of career service and this rule to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or saving on to businesses through fees. However, no such costs or saving will accrue with this amendment.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Conroy Whipple at the above address, by phone at 801-538-3067, by FAX at 801-538-3081, or by Internet E-mail at cwhipple@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2004

This rule may become effective on:

07/02/2004

Authorized by:

Kim Christensen, Executive Director

RULE TEXT

R477. Human Resource Management, Administration.

R477-12. Separations.

R477-12-1. Resignation.

[Employees]A career service employee may resign by giving written or verbal notice to the [appointing authority]immediate supervisor or an appropriate representative of management in the work unit.[ In this rule, the word employee refers to career service employees, unless otherwise indicated.]

(1) Agency management may accept an employee's resignation without prejudice when the resignation is received at least ten working days before its effective date.

(2) After submitting a resignation, an employee[s] may withdraw [their]it [resignation ]on the next working day by notifying the immediate supervisor or an appropriate representative of management in the work unit.[ After the close of the next working day following its submission, withdrawal of a resignation may occur only with the consent of the appointing authority.]

(a) After the close of the next working day following submission, withdrawal of a resignation may occur only with the consent of agency management.

(b) If the resignation withdrawal notice is verbal, the employee shall submit a written notification within 24 hours of the verbal notice.

R477-12-2. Abandonment of Position.

[Employees]An employee who [are]is absent from work for three consecutive working days and [are]is capable of providing proper notification to [their]the supervisor, but does not, shall be considered to have abandoned [their]his position.

(1) [Management may terminate an]An employee who has abandoned his position may be separated from state employment. Management shall inform the employee of the action in writing.

(a) The employee shall have the right to appeal to the agency head within five working days of receipt or delivery of the notice of abandonment to the last known address.

(b) If the [termination action]separation is appealed, management may not be required to prove intent to abandon the position.

R477-12-3. Reduction in Force.

Reductions in force shall be required when there are inadequate funds, a change of workload, or lack of work. Reductions in force shall be governed by DHRM business practices, standards and the following rules:

(1) When staff will be reduced in one or more [classes]categories of work, agency management shall develop a work force adjustment plan (WFAP). [Career]A career service employee[s] shall only be given formal written notification of separation after a WFAP has been reviewed and approved by the Executive Director, DHRM, or designee. The following items shall be considered in developing the work force adjustment plan:

(a) the categories of work to be eliminated, including positions impacted through bumping, as determined by management;

(b) a decision by agency management allowing or disallowing bumping;

(c) specifications of measures taken to facilitate the placement of affected employees through normal attrition, retirement, reassignment, relocation, and movement to vacant positions for which the employee qualifies[based on interchangeability of skills];

(d) a list of all affected employees showing the retention points for each employee.

(2) Eligibility for RIF.

(a) Only career service employees who have been identified in an approved WFAP and given an opportunity for a hearing with the agency head may be RIF'd.

(b) [Employees]An employee covered by USERRA and in a leave without pay status must be identified, assigned retention points, and notified of the RIF of [their]the previous position in the same manner as a career service employee[s].

(3) Retention points shall be calculated for all affected employees within a category of work as follows:

(a) Seniority shall be determined by the length of total state career service, which commenced in a competitive career service position for which the probationary period was successfully completed.

(i) For part-time work, length of service shall be determined in proportion to hours actually worked.

(ii) Exempt service time subsequent to attaining career service tenure with no break in service shall also be counted for purposes of seniority.

(iii) In the event of ties in retention points, the amount of time employed in the affected agency or department serves as the tie breaker.

(b) Length of state service shall be measured in years and additional days shown as a fraction of a year.

(c) Time spent in a leave without pay status for service in the uniformed services covered under USERRA shall be counted for purposes of seniority.

(d) Any time spent in leave without pay status, to include worker's compensation leave, may not be counted for purposes of seniority.

(e) [All employees]An employee within a category of work, including employees covered under USERRA in a leave without pay status, shall be assigned a job proficiency rating. The job proficiency rating shall be an average of the last three annual performance evaluation ratings as described in R477-10-1(1)(e). If employees have had fewer than three annual performance evaluations, the proficiency ratings shall be an average of all ratings received as of that time.

(f) The numeric values of each employee's job proficiency rating and that employee's actual length of service shall be added together to produce the retention points.

(g) Retention points shall be calculated for [employees]an employee covered under USERRA and in a leave without pay status in the same manner as for current employees in the affected class. If there are no performance evaluation ratings for an employee covered under USERRA, no proficiency rating shall be included in the retention points.

(4) The order of separation shall be:

(a) [non-career service]career service exempt employees;

(b) probationary employees;

(c) career service employees in the order of their retention points with the lowest points are released first. In the event of ties in retention points, the amount of seniority in the affected agency serves as the tie breaker.

(5) [Employees]An employee, including [those]one covered under USERRA in a leave without pay status, who [are]is separated due to a reduction in force shall be given formal written notification of separation, allowing for a minimum of 20 working days prior to the effective date of the RIF.

(6) Appeals.

(a) An employee notified of separation due to a reduction in force may appeal to the agency head for an administrative review by submitting a written notice of appeal within 20 working days after the receipt of written notification of separation.

(b) The employee may appeal the decision of the agency head according to the appeals procedure of the Career Service Review Board.

(7) Reappointment of RIF'd individual.

(a) A RIF'd individual is eligible for reappointment into a half time or greater career service position for which he qualifies in a salary range comparable to or less than the last career service position held, for a period of one year following the date of separation. R477-4-4 applies for selection of individuals from the reappointment register.

(i) The Executive Director, DHRM, shall maintain a reappointment register and shall make the final determination on whether an eligible RIF'd individual meets the job requirements for position vacancies.

(ii) A RIF'd individual shall remain on the state reappointment register for twelve months from the date of separation, unless reappointed sooner.

(b) During a statewide mandated freeze on hiring wherein the Governor disallows increases in each [department's]agency's FTEs, eligibility for the reappointment register shall be extended for the entire length of time covered by a freeze.

(c) When determining comparable salary ranges in cases of RIF eligibility, a comparison of the previous to the new salary range maximum step is required.

(i) The previous salary range shall be considered comparable if the maximum step is equal to or greater than the maximum step of the new salary range.

(ii) If the maximum step of the job or position previously held by the RIF'd individual has moved upward, the RIF'd individual shall be eligible to exercise RIF rights for vacancies with that job or position as long as the duties remain essentially the same as when the RIF'd individual held the job or position.

(d) A RIF'd individual who is reappointed to a career service position shall not be required to serve a probationary period. The RIF'd individual shall enjoy all the rights and privileges of a regular career service employee.

(e) At agency discretion, an individual[s] reappointed from a reappointment register may buy back part or all accumulated annual and converted sick leave that was cashed out when RIF'd.

(8) Appeal rights of RIF'd individual. An individual whose name is on the reappointment register as a result of a reduction in force may use the grievance procedure regarding their reappointment rights.

(9) [Career]A career service employee[s] in an exempt position[s]. Any career service employee accepting an exempt position without a break in service, who is later not retained by the appointing officer, unless discharged for cause as provided for by these rules, shall be placed on a reappointment register.

(a) The Executive Director, DHRM, shall maintain a reappointment register for this purpose. An individual on this register shall:

(i) be appointed to any half time or greater career service position for which the individual qualifies in a pay range comparable to the individual's last position in the career service, provided an opening exists; or

(ii) be appointed to any lesser career service position for which the individual qualifies, pending the opening of a position at the last career service salary range held.

(b) The Executive Director, DHRM, shall make the final determination on whether an eligible individual meets the job requirements for position vacancies.

(c) The individual shall declare a desire to remain on the reappointment register upon inquiry by DHRM.

R477-12-4. Exceptions.

The Executive Director, DHRM, may authorize exceptions to provisions of this rule consistent with R477-2-2(1).

KEY: administrative procedures, employees' rights, grievances, retirement

[July 1, 2003]2004

Notice of Continuation June 11, 2002

67-19-6

69-19-17

69-19-18

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Conroy Whipple at the above address, by phone at 801-538-3067, by FAX at 801-538-3081, or by Internet E-mail at cwhipple@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.