FISCAL NOTE
West Virginia Legislature
2017 Regular Session
Introduced
House Bill 2074
(By Delegate Caputo)
to the Committee on Government Organization then Finance.]
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new section, designated
§29-6-9a, relating to establishing seniority rights for public employees;
defining when seniority begins; setting standards for accumulation of
seniority; requiring notice of job postings; requiring registers or certified
lists of eligible applicants; allowing senior employees the first right of
refusal for additional duty, overtime and promotions; and determining seniority
in case of absence.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new section,
designated §29-6-9a, to read as follows:
ARTICLE 6. CIVIL SERVICE SYSTEM.
§29-6-9a. Determination of seniority for public
employees.
(a) A classified or
classified exempt public employee begins to accrue seniority upon commencement
of the employee's duties.
(b) An employee shall
receive seniority credit for each day the employee is employed regardless of
whether the employee receives pay for that day: Provided, That an employee who is on an
approved leave of absence accrues seniority during the period of time that the
employee is on the approved leave of absence.
(c) Any employee whose
employment is terminated either voluntarily or through a reduction-in-force shall,
upon reemployment with the same employer in a regular full-time position,
receive credit for all seniority previously accumulated at the date the
employee's employment was terminated.
(d) Any employee whose
employment has been terminated through a reduction in force shall be listed by
name on the preferred recall list and shall retain all accumulated seniority
for the purpose of seeking reemployment with the employer from which he or she
was terminated and nothing in this article may be construed to the contrary.
(e) Any employee
employed for a full employment term but in a part-time position shall receive
seniority credit for each day of employment prorated to the proportion of a
full employment day the employee is required to work: Provided, That this subsection does not
allow a regular full-time employee to be credited with less than a full day of
seniority credit for each day the employee is employed: Provided, however, That this calculation
of seniority for part-time personnel is prospective and does not reduce any
seniority credit accumulated by any employee prior to the effective date of
this section: Provided further,
That for the purposes of this section a part-time employee is defined as an
employee who is employed less than three and one-half hours per day.
(f) Seniority
accumulation for a regular employee:
(1) Begins on the date
the employee enters upon regular employment duties;
(2) Continues until the
public employee's employment as a
regular employee is severed; and
(3) Does not cease to
accumulate in any event where the employer has authorized an absence whether
without pay or due to illness or other reason over which the employee has no
control.
(g) Seniority of a
regular employee does not continue to accumulate under the following
conditions:
(1) When an employee is
willfully absent from employment duties because of a concerted work stoppage or
strike; or
(2) When an employee is
suspended without pay.
(h) For all purposes
including the filling of vacancies and reduction in force, seniority shall be
accumulated within particular classification categories of employment as those
classification categories are referred to in this article.
(i) When implementing a
reduction in force, the employee with the least seniority within a particular
classification category shall be properly released and placed on the preferred
recall list. The particular classification title held by an employee within the
classification category may not be considered when implementing a reduction in
force.
(j) On or before
December 31 of each year, each employer shall post at each office the current
certified list of public employees by seniority in each classification. Each certified list shall contain the name of
each regularly full-time and part-time employed person employed in each
classification and the date that each employee began performing his or her
assigned duties in each classification.
Current seniority lists of all classifications shall be available to
employees upon request at the Division of Personnel office. The division shall
provide the requested information within fifteen working days.
(k) The seniority of a
public employee who transfers out of a class title or classification category
of employment and subsequently returns to that class title or classification
category of employment is calculated as follows:
(1) The employer shall
establish the number of calendar days between the date the employee left the
class title or category of employment in question and the date of return to the
class title or classification category of employment;
(2) This number of days
shall be added to the employee's initial seniority date to establish a new
beginning seniority date within the class title or classification category;
(3) The employee then
shall be considered as having held uninterrupted service within the class title
or classification category from the newly established seniority date; and
(4) The seniority of an
employee who has had a break in the accumulation of seniority as a result of
being willfully absent from employment duties because of a concerted work
stoppage or strike shall be calculated in the same manner.
(l) All decisions
affecting promotions, transfers and the filling of any vacancy or job posted
for employment by any employer shall be made on the basis of seniority,
qualifications and evaluation of past service.
Where similarly qualified employees are applicants who bid for the same
position, the employee with the greatest length of service time in a particular
category of employment shall be given priority consideration and shall have the
first right of refusal in all promotions and transfers.
(m) Additional-duty
assignments.
(1) For the purpose of
this article, "additional-duty assignment" means an irregular job
that occurs periodically or occasionally such as, but not limited to, overtime
due to periodic work-related activity, overtime due to staffing shortages and
seasonal overtime activity.
(2) Notwithstanding any
other provisions of this chapter to the contrary, decisions affecting public
employees with respect to additional-duty assignments are made in the following
manner:
(A) The employee with
the greatest length of service time in a particular category of employment is
given priority in accepting additional-duty assignments, followed by fellow
employees on a rotating basis according to the length of their service time
until all employees have had an opportunity to perform similar assignments. The
cycle then is repeated.
(B) An alternative
procedure for making additional-duty assignments within a particular
classification category of employment may be used if the alternative procedure
is approved both by the Division of Personnel Board and by an affirmative vote
of two thirds of the employees within that classification category of
employment.
(n) Each employer and
the division shall post and date notices of all job vacancies of existing or
newly created positions in conspicuous places for all public employees to
observe for at least ten working days.
(1) Posting locations
include any website maintained by or available for the use of any employer and
the division.
(2) Notice of a job
vacancy shall include the job description, the period of employment, the amount
of pay and any benefits and other information that is helpful to prospective
applicants to understand the particulars of the job. Job postings for vacancies made pursuant to
this article shall be written to ensure that the largest possible pool of
qualified applicants may apply. Job
postings may not require criteria which are not necessary for the successful
performance of the job and may not be written with the intent to favor a
specific applicant.
(3) After the ten day
minimum posting period, all vacancies not filled within thirty days from the
posting date notice of any job vacancies of existing or newly created
positions, shall be posted in the same manner as the initial posting.
(4) The employer shall
notify any person who has applied for a job posted pursuant to this article of
the status of his or her application as soon as possible after the employer
makes a hiring decision regarding the posted position. Notice may be provided by regular mail,
electronic mail return receipt requested or by interdepartmental mail: Provided, That written notice shall be
provided to employees that were not selected within five work days after the
employer makes a hiring decision regarding the posted position.
(o) The seniority of a
public employee is determined on the basis of the length of time the employee
has been employed within a particular job classification. For the purpose of establishing seniority for
a preferred recall list as provided in this article, a public employee who has
been employed in one or more classifications retains the seniority accrued in
each previous classification.
(p) If an employer is
required to reduce the number of public employees within a particular job
classification, the following conditions apply:
(1) The employee with
the least amount of seniority within that classification or grades of
classification is properly released and employed in a different grade of that
classification if there is a job vacancy;
(2) If there is no job
vacancy for employment within that classification or grades of classification,
the public employee is employed in any other job classification which he or she
previously held if there is a vacancy and retains any seniority accrued in the
job classification or grade of classification.
(q) After a reduction in
force or transfer is approved an employer in its sole and exclusive judgment
may determine that the reason for any particular reduction in force or transfer
no longer exists.
(1) If the employer
makes this determination, it shall rescind the reduction in force or transfer
and notify the affected employee in writing of the right to be restored to his
or her former position of employment.
(2) The affected
employee shall notify the employer of his or her intent to return to the former
position of employment within ten work days of being notified or lose the right
to be restored to the former position.
(3) The employer may not
rescind the reduction in force of an employee until all public employees with
more seniority in the classification category on the preferred recall list have
been offered the opportunity for recall to regular employment as provided in
this article.
(4) If there are
insufficient vacant positions to permit reemployment of all more senior
employees on the preferred recall list within the classification category of
the public employee who was subject to reduction in force, the position of the
released employee shall be posted and filled in accordance with this article.
(r) All public employees
whose seniority with the employer is insufficient to allow their retention by
the employer during a reduction in work force shall be placed upon a preferred
recall list and shall be recalled to employment by the employer on the basis of
seniority.
(s) A public employee
placed upon the preferred recall list shall be recalled to any position
openings by the employer within the classification(s) where he or she had
previously been employed, to any lateral position for which the public employee
is qualified or to a lateral area for which a public employee has certification
and/or licensure.
(t) A public employee on
the preferred recall list does not forfeit the right to recall by the employer
if compelling reasons require him or her to refuse an offer of reemployment by
the employer.
(u) The employer shall
notify all public employees on the preferred recall list of all position
openings that exist from time to time. The notice shall be sent by certified
mail to the last known address of the public employee. Each public employee shall notify the
employer of any change of address.
(v) Position openings
may not be filled by the employer, whether temporary or permanent, until all
public employees on the preferred recall list have been properly notified of
existing vacancies and have been given an opportunity to accept reemployment.
(w) Any employer failing
to comply with the provisions of this article may be compelled to do so by
mandamus and is liable to any party prevailing against the employer for court
costs and the prevailing party's reasonable attorney fee, as determined and
established by the court.
(1) A public employee
denied promotion or employment in violation of this article shall be awarded
the job, pay and any applicable benefits retroactively to the date of the
violation.
(2) The employer is
liable to any party prevailing against the employer for any court reporter
costs including copies of transcripts.
(x) The seniority rights
conferred herein shall apply retroactively to all classified and classified
exempt employees and shall commence as of the effective date of this section.
(y) Rules of the
division promulgated pursuant to section ten of this article shall conform or
be construed to conform to the seniority provisions of this section.
NOTE: The purpose of this bill is
to establish seniority preference for all civil service workers bidding on
jobs, seeking to transfer, or affected by reduction in force.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.