DAR File No. 31187

Human Resource Management, Administration

R477-2

Administration

NOTICE OF PROPOSED RULE

DAR File No.: 31187
Filed: 04/25/2008, 09:20
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

These amendments remove redundant language relative to unlawful harassment, add greater alignment with the Immigration Reform and Control Act of 1986, and correct record keeping procedures for employee files. Nonsubstantive changes are also made to comply with rulemaking style.

Summary of the rule or change:

Language deleted from Subsection R477-2-3(2) is redundant because it is covered under Rule R477-15, Unlawful Harassment Policy and Procedure. Language is deleted from Subsection R477-2-5(2)(a) because it is not permitted by federal law. Language in Subsections R477-2-5(3) and R477-2-5(3)(a) is deleted because it is unnecessary. A new Subsection R477-2-5(4) is inserted to provide greater clarity as to the disposition of documentation required under the Immigration Reform and Control Act of 1986. In Subsection R477-2-5(5)(a)(i), language was added to direct employee requests to view employment files specifically to the appropriate agency human resource field office. The requirement of the employee's notarized written consent was added to Subsections R477-2-5(8)(c) and R447-2-5(14) for individuals seeking individual employment records. In Subsection R477-2-5(12), the term "obtained orally" was removed regarding medical documentation because it cannot be documented orally and once information is written it is no longer oral. In Section R477-2-7, the term Employment Eligibility Certification was changed to Employment Eligibility Verification in alignment with terminology of the Immigration Reform and Control Act.

State statutory or constitutional authorization for this rule:

Section 52-3-1, Subsections 63-2-204(5) and 63-2-903(4), and Sections 67-19-6 and 67-19-18

Anticipated cost or savings to:

the state budget:

There may be small incidental costs to agencies for the maintenance of separate files for employee documentation. However, all agencies are known to be in compliance with these amendments already.

local governments:

This rule only affects the executive branch of state government and will have no impact on local governments.

small businesses and persons other than businesses:

This rule may affect individuals seeking a state employee's employment record. Amendments require notarized consent before accessing records which may subject individuals to a small cost and additional labor to seek notarization.

Compliance costs for affected persons:

This rule only affects agencies of the executive branch of state government.

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. This act 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 savings on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business. 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:

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Tina Sweet or J.J. Acker at the above address, by phone at 801-538-3761 or 801-537-9096, by FAX at 801-538-3081 or 801-538-3081, or by Internet E-mail at tinasweet@utah.gov or jacker@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:

06/16/2008

This rule may become effective on:

06/23/2008

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-2. Administration.

R477-2-1. Rules Applicability.

These rules apply to all career and career service exempt state employees except those specifically exempted in Section 67-19-12.

(1) Certificated employees of the State Board of Education are covered by these rules except for rules governing classification and compensation, found in Rule R477-3 and R477-6.

(2) Nonstate agencies with employees protected by the career service provisions [of these rules ]in Rules R477-4, R477-5, R477-9 and R477-11 are exempted by contract from any provisions deemed inappropriate in their jurisdictions by the Executive Director, DHRM.

(3) Unless employees in exempt positions have written contracts of employment for a definite period of time, they are career service exempt employees. The following employees are exempt from mandatory compliance with these rules:

(a) members of the Legislature and legislative employees;

(b) members of the judiciary and judicial employees;

(c) elected members of the executive branch and their direct staff who are career service-exempt employees;

(d) officers, faculty, and other employees of state institutions of higher education;

(e) any positions for which the salary is set by law;

(f) employees in the [Attorney General's ]Office of the Attorney General;

(g) agency heads and other persons appointed by the governor when authorized by statute;

(h) employees of the Governor's Office of Economic Development whose positions have been designated executive/professional by the executive director of the Governor's Office of Economic Development with the concurrence of the Executive Director, DHRM;

(i) employees of the Medical Education Council.

(4) All other exempt positions are covered by [provisions of ]these rules except rules governing career service status in Rule R477-4, R477-5, R477-9 and R477-11.

(5) The above positions may or may not be exempt from federal and other state regulations.

 

R477-2-2. Compliance Responsibility.

Agencies shall comply with these rules. Agencies are authorized to correct any administrative errors.

(1) The Executive Director, DHRM, may authorize exceptions to [provisions of ]these rules when one or more of the following criteria are satisfied:

(a) Applying the rule prevents the achievement of legitimate government objectives;

(b) Applying the rule impinges on the legal rights of an employee.

(2) Agency personnel records, practices, policies and procedures, employment and actions, shall comply with these rules and are subject to compliance audits by DHRM.

(3) In cases of noncompliance with Title 67, Chapter 19, and these rules, the Executive Director, DHRM, may find the responsible agency official to be subject to the penalties [prescribed by]under Subsection 67-19-18(1) pertaining to misfeasance, malfeasance or nonfeasance in office.

 

R477-2-3. Fair Employment Practice.

All state personnel actions must provide equal employment opportunity for all individuals.

(1) Employment actions including appointment, tenure or term, condition or privilege of employment shall be based on the ability to perform the essential duties, functions, and responsibilities assigned to a particular position.

(2) Employment actions [shall]may not be based on race, religion, national origin, color, sex, age, disability, protected activity under the anti-discrimination statutes, political affiliation, military status or affiliation or any other non-job related factor[, nor shall any person be subjected to unlawful harassment by a state employee].

(3) An employee who alleges illegal discrimination may submit a claim to the agency head.

(a) The employee may file a charge with the Utah Anti-Discrimination and Labor Division within 180 days of the alleged harm, or directly with the EEOC within 300 days of the alleged harm.

(b) [No]A state official [shall]may not impede any employee from the timely filing of a discrimination complaint in accordance with state and federal requirements.

 

R477-2-5. Records.

(1) DHRM shall maintain a computerized file for each employee that contains the following, as appropriate:

(a) performance ratings;

(b) records of actions affecting employee salary, current classification, title and salary range, salary history, and other personal data, status or standing.

(2) Agencies shall maintain the following types of records in [each ]employee['s] personnel files:

(a) [applications for employment, Employment Eligibility Certification record, Form I-9, and other documents required by the United States Bureau of Citizenship and Immigration Services Regulations, under the Immigration Reform and Control Act of 1986, ]employee signed overtime agreement, personnel action records, notices of corrective or disciplinary actions, new employee orientation form, performance evaluation records, separation and leave without pay records, including employee benefits notification forms for PEHP and URS;

(b) references to or copies of transcripts of academic, professional, or training certification or preparation;

(c) copies of items recorded in the DHRM computerized file and other materials required by agency management to be placed in the personnel file. The agency personnel file shall be considered a supplement to the DHRM computerized file and shall be subject to the rules governing personnel files;

(d) leave and time records; and

(e) copies of any documents affecting the employee's conduct, status or salary. The agency shall inform employees of any changes in their records based on conduct, status or salary no later than when changes are entered into the file.

(3) Agencies shall maintain a separate file [from the personnel file ]containing confidential employee medical information.

(a) [Information in t]This file shall include all [written and orally obtained ]information pertaining to medical issues, including Family Medical and Leave Act forms, medical and dental enrollment forms which contain health related information, health statements, applications for additional life insurance, and any other medical information.

(b) Information regarding the results from fitness for duty evaluations and drug testing shall be maintained in a file separate from the personnel file and from the file containing confidential employee medical information.

[(c) ]Information in this file [is considered]shall be private or controlled information. Communication shall adhere to Title 63, Chapter 2, the Government Records Access and Management Act.

(d) An employee who violates confidentiality is subject to state disciplinary procedures.

(4) Agencies shall maintain a separate file containing Form I-9 and other documents required by the United States Bureau of Citizenship and Immigration Services regulations, under Immigration Reform and Control Act of 1986, 8 USC Section 1324a.

([4]5) An employee has the right to review the employee's personnel file, upon request, in DHRM or the agency, as governed by law and [as provided through]under agency policy.

(a) An employee may correct, amend, or challenge any information in the DHRM computerized or agency personnel file, through the following process:

(i) The employee shall request in writing to the appropriate agency human resource field office that changes occur.

(ii) The employing agency shall be given an opportunity to respond.

(iii) Disputes over information that are not resolved between the employing agency and the employee shall be decided in writing by the Executive Director, DHRM. DHRM shall maintain a record of the employee's letter, the agency's response, and the DHRM Executive Director's decision.

([5]6) When a disciplinary action is rescinded or disapproved upon appeal, forms, documents and records pertaining to the case shall be removed from the personnel file.

(a) When the record in question is on microfilm, a seal will be placed on the record and a suitable notice placed on the carton or envelope. This notice shall indicate the limits of the sealed section and the authority for the action.

([6]7) Upon employee separation, DHRM and agencies shall retain computerized records for thirty years. Agency hard copy records shall be retained by the agency for a minimum of two years, then transferred to the State Record Center to be retained according to the record retention schedule.

([7]8) Information classified as private in both DHRM and agency personnel and payroll files shall be available only to the following people:

(a) the employee;

(b) users authorized by the Executive Director, DHRM, who have a legitimate need to know;

(c) individuals who have the employee's notarized written consent.

([8]9) Utah is an open records state, according to Title 63, Chapter 2, the Government Records Access and Management Act. Information classified as public concerning current or former state employees, volunteers, independent contractors, and members of advisory boards or commissions shall be released upon request.

([9]10) When an employee transfers from one agency to another, the former agency shall transfer the employee's personnel and medical file to the new agency. The file shall contain a record of all actions that have affected the employee's status and standing.

([10]11) An employee may request a copy of [any ]documentary evidence used for disciplinary purposes in any formal hearing, regardless of the document's source, prior to such use. An employee may not request documentary evidence used for rebuttal.[This shall not apply to documentary evidence used for rebuttal.]

([11]12) Employee medical information [obtained orally or ]documented in separate confidential files [is considered]shall be private or controlled information. Communication must adhere to Title 63, Chapter 2, the Government Records Access and Management Act. Employees who violate confidentiality are subject to state disciplinary procedures and may be personally liable for slander or libel.

([12]13) In compliance with the Government Records Access and Management Act, only information classified as public or private which can be determined to be related to and necessary for the disposition of a long term disability or unemployment insurance determination shall be approved for release on a need to know basis. The authorized manager in DHRM shall make the determination.

([13]14) An employee may verbally request the release of information for personal use, or authorize in writing the release of personal performance records for use by an outside agent based on a need to know authorization. Private data shall only be released, except to the employee, after a notarized written request has been evaluated and approved.

 

R477-2-7. Employment Eligibility [Certification]Verification (Immigration Reform and Control Act - 1986).

All career and career service exempt employees appointed on and after November 7, 1986, as a new hire, rehire, agency transfer or through reciprocity with or assimilation from another career service jurisdiction must provide verifiable documentation of their identity and eligibility for employment in the United States by completing all sections of the Employment Eligibility [Certification]Verification Form I-9 as required under the Immigration Reform and Control Act of 1986.

 

R477-2-8. Disclosure by Public Officers Supervising a Relative.

It is unlawful for a public officer to appoint, directly supervise, or to make salary or performance recommendations for relatives except as prescribed [in the]under Section 52-3-1.

(1) A public officer supervising a relative shall make a complete written disclosure of the relationship to the agency head in accordance with Section 52-3-1.

 

R477-2-9. Employee Liability.

An employee who becomes aware of any occurrence which may give rise to a law suit, who receives notice of claim, or is sued because of an incident related to his employment, shall give immediate notice to his supervisor and to the Department of Administrative Services, Division of Risk Management.

(1) In most cases, under [provisions of ]Sections 63-30-36, and 63-30-37, the Governmental Immunity Act (GIA), an employee shall receive defense and indemnification unless the case involves fraud, malice or the use of alcohol or drugs by the employee.

(2) If a law suit results against an employee, the GIA stipulates that the employee must request a defense from his agency head in writing within ten calendar days.

 

KEY: administrative responsibility, confidentiality of information, fair employment practices, public information

Date of Enactment or Last Substantive Amendment: [July 1, 2007]2008

Notice of Continuation: June 9, 2007

Authorizing, and Implemented or Interpreted Law: 52-3-1; 63-2-204(5); 63-2-903(4); 67-19-6; 67-19-18