DAR File No. 32727

Human Resource Management, Administration

R477-2

Administration

NOTICE OF PROPOSED RULE

DAR File No.: 32727
Filed: 06/11/2009, 06:00
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to replace the term "grievance", which is incorrect, with the term "complaint." It also corrects punctuation and spacing errors.

Summary of the rule or change:

In Subsection R477-2-3(3)(a) the term "grievance" is replaced with "complaint." Nonsubstantive changes are made to correct spelling and punctuation.

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:

J.J. Acker at the above address, by phone at 801-537-9096, by FAX at 801-538-3081, or by Internet E-mail at [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:

07/31/2009

This rule may become effective on:

08/07/2009

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-2. Administration.

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, 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 unlawful discrimination may:

(a) submit a [grievance]complaint to the agency head; and

(b) 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.

(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 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.

(2) DHRM shall maintain, on behalf of agencies, 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, performance evaluation records, separation and leave without pay notices, including 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;

(c) other documents required by agency management; and

(d) year end leave summary records.

(3) DHRM shall maintain, on behalf of agencies, a separate confidential file for each of the following:

(a) Medical File: all information pertaining to medical issues, including Family Medical and Leave Act 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.

(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.

(c) Fitness for Duty and Drug and Alcohol Testing File: information regarding the results from fitness for duty evaluations and drug testing.

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

(d) I-9 File: 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) An employee has the right to review the employee's personnel file, upon request, in the presence of a DHRM representative.

(a) An employee may request corrections, amendments to, or challenge any information in the DHRM electronic or hard copy 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) 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 Title and the authority for the action.

(6) Upon employee separation, DHRM shall retain electronic records for thirty years. Agency hard copy records shall be retained at 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.

(7) When an employee transfers from one agency to another, the former agency shall transfer the employee's personnel, medical, and I-9 files to the new agency. The files shall contain records according to Subsections R477-2-5(2) or R477-2-5(3).

(8) Employees who violate confidenti[u]ality are subject to disciplinary action and may be personally liable.

 

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

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

Notice of Continuation: June 9, 2007

Authorizing, and Implemented or Interpreted Law: 52-3-1; 63G-2-3; 63G-5-2, 63G-7-9; 67-19-6; 67-19-18