DAR File No. 32424

Human Resource Management, Administration

R477-12-3

Reduction in Force

NOTICE OF PROPOSED RULE

DAR File No.: 32424
Filed: 03/02/2009, 04:20
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

These changes are the result of S.B. 126 being passed on 02/18/2009 in the 2009 General Session, and signed by the Governor on 03/02/2009. The amendments revise the method applied to determine retention points giving primary consideration to proficiency and secondary consideration to seniority.

Summary of the rule or change:

The amendments in Section R477-12-3 clarify when and how a Reduction in Force (RIF) can take place. Subsection R477-12-3(1) is amended to change approval of a workforce adjustment plan to the agency head after Department of Human Resource Management (DHRM) review and clarifies the hearing process. Amendments to Subsection R477-12-3(3) revise the calculation of retention points. (DAR NOTE: A corresponding 120-day (emergency) rule is published under DAR No. 32427 is this issue, March 15, 2009, of the Bulletin and was effective 03/02/2009.)

State statutory or constitutional authorization for this rule:

Sections 67-19-6 and 67-19-18

Anticipated cost or savings to:

the state budget:

These changes are administrative and do not directly impact state budgets.

local governments:

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

small businesses and persons other than businesses:

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

Compliance costs for affected persons:

There will not likely be measurable costs to executive branch agencies in order to comply with this rule.

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. 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:

J.J. Acker or Michael Tribe at the above address, by phone at 801-537-9096 or 801-538-3627, by FAX at 801-538-3081 or 801-538-3081, or by Internet E-mail at jacker@utah.gov or miketribe@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:

04/14/2009

This rule may become effective on:

04/21/2009

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-12. Separations.

R477-12-3. Reduction in Force.

Reductions in force (RIF) [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:]required by inadequate funds, a change of workload, or lack of work shall be governed by DHRM rules and business practices.

(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 and approved by Agency Head or designee. The following items shall be [considered]addressed in [developing ]the [work force adjustment plan]WFAP:

(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) job-related criteria as identified in Subsection R477-12-3(3)(a) used for determining retention points; and

(e) 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]to be heard by the agency head or designee may be RIF'd.

(b) An employee covered by USERRA [and in a leave without pay status must]shall 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:]determined for all affected employees within a category of work by giving appropriate consideration for proficiency and seniority with proficiency being the primary factor.

[(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 under Subsection 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.](a) Performance evaluations and performance information for the past three years may be taken into account for assessing job proficiency. The following job-related criteria may be considered:

(i) quality of work;

(ii) productivity;

(iii) skills demonstrated through work performance; or

(iv) other factors that relate to employee performance or conduct.

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

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

(c) In each WFAP, agency management shall develop the criteria they will use for determining retention points.

(i) Agency Management shall consult with Executive Director, DHRM or designee.

(ii) Agency plans shall comply with current DHRM business practices.

(4) The order of separation shall be:

(a) temporary employees;

(b) probationary employees; then

(c) career service employees 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]RIF 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]RIF 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]a) 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. Section 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 one year 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 budgeted 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 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 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 position previously held by the RIF'd individual has moved upward, 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 under these rules, shall be placed on 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 salary 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) Prior to termination and in lieu of placement on the reappointment register, management may reassign an employee to a vacant career service position consistent with Subsection R477-12-3(7)(c) for which he qualifies.

 

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

Date of Enactment or Last Substantive Amendment: [July 1, 2008]2009

Notice of Continuation: June 9, 2007

Authorizing, and Implemented or Interpreted Law: 67-19-6; 67-19-17; 67-19-18