DAR File No. 32634

Human Resource Management, Administration

R477-1

Definitions

NOTICE OF PROPOSED RULE

DAR File No.: 32634
Filed: 04/30/2009, 05:18
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Unnecessary or obsolete definitions are removed, new definitions are added, the definitions of reassignment and transfer are redefined for greater clarity. Other changes remove incorrect terms or unnecessary words from definitions. One reference is corrected.

Summary of the rule or change:

Obsolete or unnecessary definitions in Subsections R477-1-1(23), (33), (38), (64), (103), (105), and (111) are removed. New definitions: Subsection R477-1-1(50) "highly sensitive position", Subsection R477-1-1(86) "proficiency", and Subsection R477-1-1(104) "unlawful discrimination" are added. The new Subsections R477-1-1(93) and (102) redefine reassignment and transfer.

State statutory or constitutional authorization for this rule:

Section 67-19-6

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:

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 [email protected] or [email protected]

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

Interested persons may attend a public hearing regarding this rule:

6/02/2009 at 9:00 AM, State Capitol, Room 250

This rule may become effective on:

07/01/2009

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-1. Definitions.

R477-1-1. Definitions.

The following definitions apply throughout these rules unless otherwise indicated within the text of each rule.

(1) Abandonment of Position: An act of resignation resulting when an employee is absent from work for three consecutive working days without approval.

(2) Actual FTE: The total number of full time equivalents based on actual hours paid in the state payroll system.

(3) Actual Hours Worked: Time spent performing duties and responsibilities associated with the employee's job assignments.

(4) Actual Wage: The employee's assigned salary rate in the central personnel record maintained by the Department of Human Resource Management.

(5) Administrative Leave: Leave with pay granted to an employee at management discretion that is not charged against the employee's leave accounts.

(6) Administrative Adjustment: A DHRM approved change of a position from one job to another job or a salary range change for administrative purposes that is not based on a change of duties and responsibilities.

(7) Administrative Salary Decrease: A decrease in the current actual wage of one or more salary steps based on non-disciplinary administrative reasons determined by an agency head or commissioner.

(8) Administrative Salary Increase: An increase in the current actual wage of one or more salary steps based on special circumstances determined by an agency head or commissioner.

(9) Agency: An entity of state government that is:

(a) directed by an executive director, elected official or commissioner defined in Title 67, Chapter 22 or in other sections of the code;

(b) authorized to employ personnel; and

(c) subject to DHRM rules.

(10) Agency Head: The executive director or commissioner of each agency or a designated appointee.

(11) Agency Human Resource Field Office: An office of the Department of Human Resource Management located at another agency's facility.

(12) Agency Management: The agency head and all other officers or employees who have responsibility and authority to establish, implement, and manage agency policies and programs.

(13) Appeal: A formal request to a higher level for reconsideration of a grievance decision.

(14) Appointing Authority: The officer, board, commission, person or group of persons authorized to make appointments in their agencies.

(15) Budgeted FTE: The total number of full time equivalents budgeted by the Legislature and approved by the Governor.

(16) Bumping: A procedure that may be applied prior to a reduction in force action (RIF). It allows employees with higher retention points to bump other employees with lower retention points as identified in the work force adjustment plan, as long as employees meet the eligibility criteria outlined in interchangeability of skills.

(17) Career Mobility: A time limited assignment of an employee to a different position [of equal or higher salary range ]for purposes of professional growth or fulfillment of specific organizational needs.

(18) Career Service Employee: An employee who has successfully completed a probationary period in a career service position.

(19) Career Service Exempt Employee: An employee appointed to work for an unspecified period of time or who serves at the pleasure of the appointing authority and may be separated from state employment at any time without just cause.

(20) Career Service Exempt Position: A position in state service exempted by law from provisions of [competitive ]career service under Sections 67-19-15 and R477-2-1.

(21) Career Service Status: Status granted to employees who successfully complete a probationary period for competitive career service positions.

(22) Category of Work: A job series within an agency that is designated by the agency head as having positions to be eliminated agency wide through a reduction in force. Category of work may be further reduced [after review by DHRM ]as follows:

(a) a unit smaller than the agency upon providing justification and rationale for approval, for example:

(i) unit number;

(ii) cost centers;

(iii) geographic locations;

(iv) agency programs.

(b) positions identified by a set of essential functions, for example:

(i) position analysis data;

(ii) certificates;

(iii) licenses;

(iv) special qualifications;

(v) degrees that are required or directly related to the position.

[(23) Certifying: The act of verifying the qualifications and availability of individuals on the hiring list. The number of individuals certified shall be based on standards and procedures established by the Department of Human Resource Management.

](2[4]3) Change of Workload: A change in position responsibilities and duties or a need to eliminate or create particular positions in an agency caused by legislative action, financial circumstances, or administrative reorganization.

(2[5]4) Classification Grievance: The approved procedure by which an agency or a career service employee may grieve a formal classification decision regarding the classification of a position.

(2[6]5) Classified Service: Positions that are subject to the classification and compensation provisions stipulated in Section 67-19-12.

(2[7]6) Classification Study: A Classification review conducted by DHRM under Section R477-3-4. A study may include single or multiple job or position reviews.

(2[8]7) Compensatory Time: Time off that is provided to an employee in lieu of monetary overtime compensation.

(2[9]8) Contractor: An individual who is contracted for service, is not supervised by a state supervisor, but is responsible for providing a specified service for a designated fee within a specified time. The contractor shall be responsible for paying all taxes and FICA payments, and may not accrue benefits.

([30]29) Corrective Action: A documented administrative action to address substandard performance of an employee under Section R477-10-2.

([31]30) Critical Incident Drug or Alcohol Test: A drug or alcohol test conducted on an employee as a result of the behavior, action, or inaction of an employee that is of such seriousness it requires an immediate intervention on the part of management.

([32]31) Demotion: A disciplinary action resulting in a reduction of an employee's current actual wage.

[(33) Designated Hiring Rule: A rule promulgated by DHRM that defines which individuals on a certification are eligible for appointment to a career service position.

](3[4]2) DHRM: The Department of Human Resource Management.

(3[5]3) DHRM Approved Recruitment and Selection System: The state's recruitment and selection system, which is a centralized and automated computer system administered by the Department of Human Resource Management.

(3[6]4) Disability: Disability shall have the same definition found in the Americans With Disabilities Act (ADA) of 1990, 42 USC 12101 ([1994]2008); Equal Employment Opportunity Commission regulation, 29 CFR 1630 ([1993]2008); including exclusions and modifications.

(3[7]5) Disciplinary Action: Action taken by management under Rule R477-11.

[(38) Discrimination: Unlawful action against an employee or applicant 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 factor, as prohibited by law.

](3[9]6) Dismissal: A separation from state employment for cause under Section R477-11-2.

([40]37) Drug-Free Workplace Act: A 1988 congressional act, 34 CFR 85 (1993), requiring a drug-free workplace certification by state agencies that receive federal grants or contracts.

([41]38) Employee Personnel Files: For purposes of Title 67, Chapters 18 and 19, the files maintained by DHRM and agencies as required by Section R477-2-5. This does not include employee information maintained by supervisors.

([42]39) Employment Eligibility Verification: A requirement of the Immigration Reform and Control Act of 1986, 8 USC 1324 (1988) that employers verify the identity and eligibility of individuals for employment in the United States.

([43]40) "Escalator" Principle: Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), returning veterans are entitled to return back onto their seniority escalator at the point they would have occupied had they not left state employment.

([44]41) Excess Hours: A category of compensable hours separate and apart from compensatory or overtime hours that accrue at straight time only when an employee's actual hours worked, plus additional hours paid, exceed an employee's normal work period.

([45]42) Fitness For Duty Evaluation: Evaluation, assessment or study by a licensed professional to determine if an individual is able to meet the performance or conduct standards required by the position held, or is a direct threat to the safety of self or others.

([46]43) FLSA: Fair Labor Standards Act. The federal statute that governs overtime. See 29 USC 201 (1996).

([47]44) FLSA Exempt: Employees who are exempt from the Fair Labor Standards Act.

([48]45) FLSA Nonexempt: Employees who are not exempt from the Fair Labor Standards Act.

([49]46) Follow Up Drug or Alcohol Test: Unannounced drug or alcohol tests conducted for up to five years on an employee who has previously tested positive or who has successfully completed a voluntary or required substance abuse treatment program.

([50]47) Furlough: A temporary leave of absence from duty without pay for budgetary reasons or lack of work.

([51]48) Grievance: A career service employee's claim or charge of the existence of injustice or oppression, including dismissal from employment resulting from an act, occurrence, omission, condition, discriminatory practice or unfair employment practice not including position classification or schedule assignment.

([52]49) Grievance Procedures: The statutory process of grievances and appeals as set forth in Sections 67-19a-101 through 67-19a-408 and the rules promulgated by the Career Service Review Board.

([53]50) Highly Sensitive Position: A position approved by DHRM that includes the performance of functions:

(a) requiring an employee to operate motorized machinery;

(b) directly related to law enforcement;

(c) involving direct access or having control over direct access to controlled substances;

(d) directly impacting the safety or welfare of the general public;

(e) requiring an employee to carry or have access to firearms; or

(f) permitting or requiring an employee to access an individual's highly sensitive, personally identifiable, private information, including:

(i) financial assets, liabilities, and account information;

(ii) social security numbers;

(iii) wage information;

(iv) medical history;

(v) public assistance benefits;

(vi) household composition; or

(vii) driver license

(51) Gross Compensation: Employee's total earnings, taxable and nontaxable, as shown on the employee's pay statement.

([54]52) Hiring List: A list of qualified and interested applicants who are eligible to be considered for appointment or conditional appointment to a specific position.

([55]53) HRE: Human Resource Enterprise; the state human resource management information system.

([56]54) Immediate Supervisor: The employee or officer who exercises direct authority over an employee and who appraises the employee's performance.

([57]55) Incompetence: Inadequacy or unsuitability in performance of assigned duties and responsibilities.

([58]56) Inefficiency: Wastefulness of government resources including time, energy, money, or staff resources or failure to maintain the required level of performance.

([59]57) Interchangeability of Skills: Employees are considered to have interchangeable skills only for those positions they have previously held successfully in Utah state government executive branch employment or for those positions which they have successfully supervised and for which they satisfy job requirements.

([60]58) Intern: An individual in a college degree program assigned to work in an activity where on-the-job training is accepted.

([61]59) Job: A group of positions similar in duties performed, in degree of supervision exercised or required, in requirements of training, experience, or skill and other characteristics. The same salary range and test standards are applied to each position in the group.

([62]60) Job Description: A document containing the duties, distinguishing characteristics, knowledge, skills, and other requirements for a job.

([63]61) Job Identification Number: A unique number assigned to a job by DHRM.

[(64) Job Proficiency Rating: An average of the last three annual performance evaluation ratings used in reduction in force proceedings.

]([65]62) Job Requirements: Skill requirements defined at the job level.

([66]63) Job Series: Two or more jobs in the same functional area having the same job class title, but distinguished and defined by increasingly difficult levels of duties and responsibilities and requirements.

([67]64) Legislative Salary Adjustment: A legislatively approved salary increase for a specific category of employees based on criteria determined by the Legislature.

([68]65) Malfeasance: Intentional wrongdoing, deliberate violation of law or standard, or mismanagement of responsibilities.

([69]66) Market Based Bonus: One time lump sum monies given to a new hire or a current employee to encourage employment with the state.

([70]67) Market Comparability Adjustment: Legislatively approved change to a salary range for a job [or to an employee's actual wage ]based on a compensation survey conducted by DHRM.

([71]68) Merit Increase: A legislatively approved and funded salary increase for employees to recognize and reward successful performance.

([72]69) Misfeasance: The improper or unlawful performance of an act that is lawful or proper.

([73]70) Nonfeasance: Failure to perform either an official duty or legal requirement.

([74]71) Performance Evaluation: A formal, periodic evaluation of an employee's work performance.

([75]72) Performance Management: The ongoing process of communication between the supervisor and the employee which defines work standards and expectations, and assesses performance leading to a formal annual performance evaluation.

([76]73) Performance Plan: A written summary of the standards and expectations required for the successful performance of each job duty or task. These standards normally include completion dates and qualitative and quantitative levels of performance expectations.

([77]74) Performance Standard: Specific, measurable, observable and attainable objectives that represent the level of performance to which an employee and supervisor are committed during an evaluation period.

([78]75) Personnel Adjudicatory Proceedings: The informal appeals procedure contained in [Title 63, Chapter 46b,]Section 63G-4-2 for all human resource policies and practices not covered by the state employees grievance procedure promulgated by the Career Service Review Board, or the classification appeals procedure.

([79]76) Position: A unique set of duties and responsibilities identified by DHRM authorized job and position management numbers.

([80]77) Position Description: A document that describes the detailed tasks performed, as well as the knowledge, skills, abilities, and other requirements of a specific position.

([81]78) Position Identification Number: A unique number assigned to a position for FTE management.

([82]79) Position Management Report: A document that lists an agency's authorized positions including job identification numbers, salaries, and schedules. The list includes occupied or vacant positions and full or part-time positions.

([83]80) Position Sharing: A situation where two employees share the duties and responsibilities of one full-time career service position. Leave benefits for position sharing employees are pro-rated according to the number of hours worked. To be eligible for benefits, position sharing employees must work at least 50% of a full-time equivalent.

([84]81) Post Accident Drug or Alcohol Test: A Drug or alcohol test conducted on an employee who is involved in a vehicle accident while on duty:

(a) where a fatality occurs;

(b) where the employee receives a citation under state or local law for a moving traffic violation arising from the accident and the accident involves bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident;

(c) where the employee receives a citation under state or local law for a moving traffic violation arising from the accident and the accident involves one or more motor vehicles that incur disabling damage as a result of the accident that must be transported away from the scene by a tow truck or other vehicle;

(d) where there is reasonable suspicion that the employee had been driving while under the influence of a controlled substance.

([85]82) Preemployment Drug Test: A drug test conducted on final candidates for a highly sensitive position or on a current employee prior to assuming highly sensitive duties.

([86]83) Probationary Employee: An employee hired into a career service position who has not completed the required probationary period for that position.

([87]84) Probationary Period: A period of time considered part of the selection process, identified at the job level, the purpose of which is to allow management to evaluate an employee's ability to perform assigned duties and responsibilities and to determine if career service status should be granted.

([88]85) Productivity Step Adjustment: A management authorized salary increase of one to four steps. Management and employees agree to the adjustment for employees who accept an increased workload resulting from actual and budgeted FTE reductions.

(86) Proficiency: An employee's overall quality of work, productivity, skills demonstrated through work performance and other factors that relate to employee performance or conduct.

([89]87) Promotion: An action moving an employee from a position in one job to a position in another job having a higher maximum salary step.

([90]88) Protected Activity: Opposition to discrimination or participation in proceedings covered by the antidiscrimination statutes or the Utah State Grievance and Appeal Procedure. Harassment based on protected activity can constitute unlawful retaliation.

([91]89) Random Drug or Alcohol Test: Unannounced drug or alcohol testing of a sample of highly sensitive employees done in accordance with federal regulations or state rules, policies, and procedures, and conducted in a manner such that each highly sensitive employee has an equal chance of being selected for testing.

([92]90) Reappointment: Return to work of an individual from the reappointment register, whose accrued annual leave, converted sick leave, compensatory time and excess hours in the employee's former position were cashed out upon separation.

([93]91) Reappointment Register: A register of individuals who have prior to March 2, 2009:

(a) held career service status and been separated in a reduction in force;

(b) held career service status and accepted career service exempt positions without a break in service and were not retained, unless discharged for cause;

(c) by Career Service Review Board decision been placed on the reappointment register.

([94]92) Reasonable Suspicion Drug or Alcohol Test: A drug or alcohol test conducted on an employee based on specific, contemporaneous, articulated observations concerning the appearance, behavior, speech or body odors of the employee.

([95]93) Reassignment: An action mandated by management moving[A management initiated action moving ]an employee from [his current]one job or position to a different job or position with an equal or lesser salary range maximum for administrative reasons[ not included in the definition of promotion or demotion]. A reassignment may not include a decrease in actual wage except as provided in federal or state law.

([96]94) Reclassification: A DHRM reallocation of a single position or multiple positions from one job to another job to reflect management initiated changes in duties and responsibilities.

([97]95) Reduction in Force: (RIF) Abolishment of positions resulting in the termination of career service staff. RIFs can occur due to inadequate funds, a change of workload, or a lack of work.

([98]96) Reemployment: Return to work of an employee who resigned or took military leave of absence from state employment to serve in the uniformed services covered under USERRA. Accrued annual leave, converted sick leave, compensatory time and excess hours may have been cashed out at separation.

([99]97) Rehire: Return to work of a former career service employee who resigned from state employment. Accrued annual leave, converted sick leave, compensatory time and excess hours in their former position were cashed out at separation.

([100]98) Requisition: An electronic document used for Utah Job Match recruitment, selection and tracking purposes that includes specific information for a particular position, job seekers' applications, and a hiring list.

([101]99) Salary Range: The segment of an approved pay plan assigned to a job.

([102]100) Schedule: The determination of whether a position meets criteria stipulated in the Utah Code Annotated to be career service (schedule B) or career service exempt (schedule A).

[(103) Serious Health Condition: An illness, injury, impairment, physical or mental condition that involves:

(a) inpatient care in a hospital, hospice, or residential medical care facility; or

(b) outpatient care with continuing treatment by a health care provider.

]([104]101) Tangible Employment Action: Any significant change in employment status e.g. hiring, firing, promotion, failure to promote, demotion, undesirable assignment, a decision causing a significant change in benefits, compensation decisions, and work assignment. Tangible employment action does not include insignificant changes in employment status such as a change in job title without a change in salary, benefits or duties.

[(105) Temporary employee: A career service exempt employee on schedule AI, AJ, or AL.

]([106]102) Transfer: An action not mandated by management moving an employee [An employee initiated movement ]from one job or position to another job or position with an equal or lesser salary range maximum for which the employee qualifies[ for reasons not included in the definition of promotion]. A transfer may include a decrease in actual wage.

([107]103) Uniformed Services: The United States Army, Navy, Marine Corps, Air Force, Coast Guard; Reserve units of the Army, Navy, Marine Corps, Air Force, or Coast Guard; Army National Guard or Air National Guard; Commissioned Corps of Public Health Service, National Oceanic and Atmospheric Administration (NOAA), National Disaster Medical Systems (NDMS) and any other category of persons designated by the President in time of war or emergency. Service in Uniformed Services includes: voluntary or involuntary duty, including active duty; active duty for training; initial active duty for training; inactive duty training; full-time National Guard duty; or absence from work for an examination to determine fitness for any of the above types of duty.

(104) Unlawful Discrimination: An action against an employee or applicant 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 factor, as prohibited by law.

([108]105) USERRA: Uniformed Services Employment and Reemployment Rights Act of 1994 (P.L. 103-353), requires state governments to re-employ eligible veterans who resigned or took a military leave of absence from state employment to serve in the uniformed services and who return to work within a specified time period after military discharge.[ Employees covered under USERRA are in a leave without pay status from their state position.]

([109]106) Veteran: An individual who has served on active duty in the armed forces for more than 180 consecutive days, or was a member of a reserve component who served in a campaign or expedition for which a campaign medal has been authorized. Individuals must have been separated or retired under honorable conditions.

([110]107) Volunteer: Any person who donates services to the state or its subdivisions without pay or other compensation except actual and reasonable expenses incurred, as approved by the supervising agency.[

(111) Volunteer Experience Credit: Credit given in meeting job requirements to participants who gain experience through unpaid or uncompensated volunteer work with the state, its subdivisions or other public and private organizations.]

 

KEY: personnel management, rules and procedures, definitions

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

Notice of Continuation: June 9, 2007

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