DAR File No. 32605

Human Resource Management, Administration

R477-2

Administration

NOTICE OF PROPOSED RULE

DAR File No.: 32605
Filed: 04/30/2009, 03:07
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The amendments correct and clarify to whom the Department of Human Resource Management (DHRM) rules apply. Erroneous and unnecessary language is removed. Some terms are replaced with more proper terms. Processes for grieving discrimination are clarified. Administration of records is made compliant with Government Records Access and Management Act (GRAMA). Language is added to comply with code. Nonsubstantive changes correct references to rules and code.

Summary of the rule or change:

Section R477-2-1 is amended to correct and detail to whom rules apply. In Section R477-2-2, language permitting other agencies to correct DHRM rules is removed. Additions in Section R477-2-2 clarify that DHRM's executive director may only make exceptions where permitted by code. Subsection R477-2-3(3), directs employees more clearly on grieving unlawful discrimination. Section R477-2-5 is rewritten. Subsection R477-2-5(8) is added to address breach of confidentiality of records. Subsection R477-2-9(2) is amended to comply with Subsection 63G-7-902(2).

State statutory or constitutional authorization for this rule:

Sections 52-3-1, 63G-2-3, 63G-5-2, 63G-7-9, 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 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:

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:

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

06/15/2009

This rule may become effective on:

07/01/2009

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-2. Administration.

R477-2-1. Rules Applicability.

These rules apply to [all ]the executive branch of Utah State Government and its career and career service exempt [state ]employees[ except those specifically exempted in Section 67-19-12]. Other entities may be covered in specific sections as determined by statute. Any inclusions or exceptions to these rules are specifically noted in applicable sections. Entities which are not bound by mandatory compliance with these rules include:

(1) members of the Legislature and legislative employees;

(2) members of the judiciary and judicial employees;

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

(4) officers, faculty, and other employees of the public education system, other than those directly employed by the State Office of Education;

(5) employees of the Office of the Attorney General;

(6) elected members of the executive branch;

(7) employees of quasi-governmental agencies and special service districts;

(8) employees in any position that is determined by statute to be exempt from these rules.

[ (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 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 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 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 these rules where allowed 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 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 may not be based on race, religion, national origin, color, [sex]gender, age, disability, protected activity under the anti-discrimination statutes, political affiliation, military status or affiliation or any other non-job related factor.

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

(a) submit a grievance to the agency head; and

(b) [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]4) A state official may not impede any employee from the timely filing of a discrimination complaint in accordance with state and federal requirements.

 

R477-2-5. Records.

Access to and privacy of personnel records maintained by DHRM are governed by Title 63G, Chapter 2, the Government Records Access and Management Act (GRAMA) and/or applicable federal laws. DHRM will designate and classify the records and record series it maintains under the GRAMA statute and respond to GRAMA requests for employee records.

(1) DHRM shall maintain an electronic record [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, status and other personal data[, status or standing].

(2) DHRM[Agencies] shall maintain, on behalf of agencies,[ the following types of records in employee personnel files] personnel files containing electronic or hard copy records of the following:

(a) 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 notices[records], including [employee benefits notification ]forms for PEHP and URS such as employee benefits notification forms and military leave worksheets;

(b) copies of professional licensure, training certification and academic transcripts, when required by the job;[references to or copies of transcripts of academic, professional, or training certification or preparation;]

(c) other documents required by agency management; and[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) year end leave summary records.[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) DHRM[Agencies] shall maintain, on behalf of agencies, a separate[ file containing] confidential file for each of the following:[employee medical information.]

(a) Medical File:[This file shall include] all information pertaining to medical issues, including Family Medical and Leave Act [forms]records, medical and dental enrollment forms which contain health related information, health statements, workers compensation records, long-term disability documentation, and applications for additional life insurance[, and any other medical information].

(i) Information in this file shall be private, controlled, or exempt information in accordance with Title 63G-2.

(b) ADA file: records pertaining to requests for reasonable accommodation, associated medical information, and the interactive process required by the ADA.

(i) information in this file is exempt from the provisions of Title 63G-2.

([b]c) Fitness for Duty and Drug and Alcohol Testing File: i[I]nformation 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].

(i) Information in this file shall be private or controlled in accordance with Title 63G-2.[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]d) I-9 File: [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.

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

(a) An employee may request corrections, amendments to, [correct, amend,] or challenge any information in the DHRM [computerized]electronic or hard copy[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.

([6]5) 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]Title and the authority for the action.

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

[ (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.

(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.

] ([10]7) When an employee transfers from one agency to another, the former agency shall transfer the employee's personnel, [and ]medical, and I-9 files to the new agency. The files shall contain [a ]records [of all actions that have affected the employee's status and standing]according to Subsections R477-2-5(2) or R477-2-5(3).

[(11) An employee may request a copy of 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.

(12) Employee medical information documented in separate confidential files 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.

(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.

(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.](8) Employees who violate confidentiuality are subject to disciplinary action and may be personally liable.

 

R477-2-6. Release of Information in a Reference Inquiry.

Reference checks or inquiries made regarding current or former public employees, volunteers, independent contractors, and members of advisory boards or commissions can be released if the information is classified as public, or if the subject of the record has signed and provided a reference release form for information authorized under Title 63G, Chapter 2, of the Government Records Access and Management Act.

(1) The employment record is the property of Utah State Government with all rights reserved to utilize, disseminate or dispose of in accordance with the Government Records Access and Management Act.

(2) Additional information may be provided if authorized by law.

 

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]state employment, shall give immediate notice to his supervisor and to the Department of Administrative Services, Division of Risk Management.

(1) In most cases, under [Sections 63-30-36, and 63-30-37]Title 63G, Chapter 7, 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) Before an agency may defend its employee against a claim,[If a law suit results against an employee, the GIA stipulates that ]the employee [must]shall make a written request for a defense [from his]to the agency head [in writing ]within ten calendar days, in accordance with Subsection 63G-7-902(2).

 

R477-2-10. Alternative Dispute Resolution.

Agency management may establish a voluntary alternative dispute resolution program [in accordance with]under Chapter 63G, Chapter 5[-46C, Utah Code Annotated].

 

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

Date of Enactment or Last Substantive Amendment: July 1, 200[8]9

Notice of Continuation: June 9, 2007

Authorizing, and Implemented or Interpreted Law: 52-3-1; [63-2-204(5)]63G-2-3; 63G-5-2, 63G-7-9; [63-2-903(4); ]67-19-6; 67-19-18