DAR File No. 27890

Human Resource Management, Administration

R477-12-3

Reduction in Force

NOTICE OF PROPOSED RULE

DAR File No.: 27890
Filed: 05/13/2005, 11:33
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to implement two adjustments in policy on the placement of employees on the reduction in force (RIF) list and the hiring of former employees from that list and make nonsubstantive changes.

Summary of the rule or change:

In Subsection R477-12-3(7)(c), these amendments give a former employee on the RIF list rehire rights to any vacant position for which he qualifies at a salary range equal to or less than the salary range of the employees last career service position. If the salary range of the previous career service position has moved upward than this will be the new range to which the rehired employee is entitled. In Subsection R477-12-3(9), the new language permits management to place a former career service employee currently serving in a career service exempt position into a vacant career service position for which he qualifies as an alternative to being placed on the RIF list if the employee agrees to waive all reappointment rights. Without this adjustment, the employee would automatically be placed on the RIF list. By law (Section 67-19-18), the employee would then be appointed to the next available position for which he qualifies.

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:

These policy adjustments will be cost neutral. Vacant positions are filled by a former employee on the RIF list or with a new recruitment. In neither case will the person be given a salary outside the approved range and beyond what the agency can pay.

local governments:

This rule only impacts the executive branch of state government and will not affect local governments.

other persons:

This rule only impacts the executive branch of state government and will not affect other persons.

Compliance costs for affected persons:

No new resources are required to implement this policy change.

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

Rules published by the Department of Human Resource Management (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 these rules 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 savings will accrue with this amendment. Jeff Herring, Executive Director

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:

May Vang or Conroy Whipple at the above address, by phone at 801-537-3081 or 801-538-3067, by FAX at 801-538-3377 or 801-538-3081, or by Internet E-mail at mvang@utah.gov or 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:

07/01/2005

This rule may become effective on:

07/02/2005

Authorized by:

Jeff Herring, Executive Director

RULE TEXT

R477. Human Resource Management, Administration.

R477-12. Separations.

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 categories of work, agency management shall develop a work force adjustment plan (WFAP). A career service employee 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;

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

(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) 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 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) career service exempt employees;

(b) probationary employees;

(c) career service employees [in the order of their retention points ]with the lowest retention 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) An employee, including one covered under USERRA in a leave without pay status, who 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]12 months from the date of separation, unless reappointed sooner.

(b) During a statewide mandated freeze on hiring wherein the Governor disallows increases in each 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 career service salary range to the [new]current career service salary range maximum step is required. A RIF'd individual shall have RIF rights to any vacant position for which he qualifies. The basis for comparison shall be:

(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.]The current salary range of a vacant position if it is equal to or lesser than the individual's previous salary range, or;

(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]the new range shall be used.

(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 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) A career service employee in an exempt position. 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]the 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.

(d) In lieu of placement on the reappointment register, management may place an employee in a vacant career service position consistent with R477-12-3(7)(c) for which he qualifies. A memorandum of understanding waiving all appeal rights concerning the reassignment shall be signed by the employee.

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

[July 2, 2004]July 2, 2005

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 May Vang or Conroy Whipple at the above address, by phone at 801-537-3081 or 801-538-3067, by FAX at 801-538-3377 or 801-538-3081, or by Internet E-mail at mvang@utah.gov or 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.