Human Resource Management, Administration

Rule R477-12

Separations

Five-Year Notice of Review and Statement of Continuation

DAR File No.: 35832
Filed: 02/03/2012 09:13:52 AM

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

This rule is written under the general rulemaking authority granted to the Department of Human Resource Management (DHRM) in Section 67-19-6. This rule establishes procedures by which an employee is separated from state employment and thus contains important legal protections for employees and the state.

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

The Utah Public Employees' Association (UPEA) requested that the state adopt a bumping process when administering a reduction in force. UPEA opposed language that placed performance proficiency as the primary factor in determining retention points for reductions in force (RIF) on account of its perceived arbitrary nature. They also opposed language requiring a RIF'd individual to request preferential consideration when applying for a career service position.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

Separation from employment is a major event for an employee and one that is frequently contested if forced by the employer. As a result, a great deal of precedent has been established by the courts, especially for government merit systems. This rule addresses all the pertinent issues in order to protect both the employee's rights and the state's discretion to terminate. Therefore, this rule should be continued. DHRM did not implement the mandatory "bumping" request because it is cumbersome, difficult to administer, and not required by code. DHRM clarified that proficiency factors are stipulated in rule as the past three years of performance reviews to prevent arbitrary decisions. DHRM did not adopt a mandatory preference system as there have been specific instances where an employee did not want to invoke this privilege. Leaving the language allows the employee flexibility.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

• J.J. Acker at the above address, by phone at 801-538-4297, by FAX at 801-538-3081, or by Internet E-mail at jacker@utah.gov

Authorized by:

Jeff Herring, Executive Director

Effective:

02/03/2012