H. B. 4350
(By Delegates Spencer, Fleischauer, Shook,
Martin, Hatfield, Guthrie, Paxton,
Longstreth, Gall and DeLong)
[Introduced January 31, 2008; referred to the
Committee on Education.]
A BILL to amend and reenact §18B-7-1 of the Code of West Virginia,
1931, as amended, relating to full-time classified personnel
workforce reduction at state institutions of higher education
on the basis of seniority.
Be it enacted by the Legislature of West Virginia:
That §18B-7-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-1. Seniority for full-time classified personnel; seniority
to be observed in reducing workforce; preferred
recall list; renewal of listing; notice of vacancies.
(a) Definitions for terms used in this section are in
accordance with those provided in section two, article nine of this
chapter, except that the provisions of this section apply only to
classified employees whose employment, if continued, accumulates to
a minimum total of one thousand forty hours during a calendar year and extends over at least nine months of a calendar year. This
section also applies to any classified employee who is
involuntarily transferred to a position in nonclassified status for
which he or she did not apply. Any classified employee
involuntarily transferred to a position in nonclassified status may
only exercise the rights set out in this section for positions
equivalent to or lower than the last job class the employee held.
(b) All decisions by the appropriate governing board, the
council or commission or its agents at state institutions of higher
education concerning reductions in workforce of full-time
classified personnel, whether by temporary furlough or
permanent
termination layoff, permanent furlough or layoff or by a temporary
or permanent reduction in days or hours worked, shall be made in
accordance with this section. For layoffs by classification for
reason of lack of funds or work, or abolition of position or
material changes in duties or organization and for recall of
employees laid off, consideration shall be given to an employee's
seniority as measured by permanent employment in the service of the
state system of higher education. In the event that the
institution desires to lay off a more senior employee, the
institution shall demonstrate that the senior employee cannot
perform any other job duties held by less senior employees of that
institution in the same job class or any other equivalent or lower
job class for which the senior employee is qualified. If an employee refuses to accept a position in a lower job class, the
employee retains all rights of recall provided in this section. If
two or more employees accumulate identical seniority, the priority
is determined by a random selection system established by the
employees and approved by the institution.
(c) Any employee laid off during a furlough or reduction in
workforce is placed upon a preferred recall list and is recalled to
employment by the institution on the basis of seniority. An
employee's listing with an institution remains active for a period
of one calendar year from the date of termination or furlough or
from the date of the most recent renewal. If an employee fails to
renew the listing with the institution, the employee's name may be
removed from the list. An employee placed upon the preferred list
shall be recalled to any position opening by the institution within
the classifications in which the employee had previously been
employed or to any lateral position for which the employee is
qualified. An employee on the preferred recall list does not
forfeit the right to recall by the institution if compelling
reasons require the employee to refuse an offer of reemployment by
the institution.
The institution shall notify all employees maintaining active
listings on the preferred recall list of all position openings that
periodically exist. The notice shall be sent by certified mail to
the last known address of the employee. It is the duty of each employee listed to notify the institution of any change in address
and to timely renew the listing with the institution. A position
opening may not be filled by the institution, whether temporary or
permanent, until all employees on the preferred recall list have
been properly notified of existing vacancies and have been given an
opportunity to accept reemployment.
(d) A nonexempt classified employee, who applies and meets the
minimum qualifications for a nonexempt job opening at the
institution where currently employed, whether the job is a lateral
transfer or a promotion, shall be transferred or promoted before a
new person is hired.
(1) This subsection does not apply if the hiring is affected
by:
(A) Mandates in affirmative action plans; or
(B) The requirements of Public Law 101-336, the Americans with
Disabilities Act.
(2) This subsection applies to any nonexempt classified
employee, including:
(A) One who has not accumulated a minimum total of one
thousand forty hours during the calendar year; and
(B) One whose contract does not extend over at least nine
months of a calendar year.
(3) If more than one qualified, nonexempt classified employee
applies, the best-qualified nonexempt classified employee is awarded the position. In instances where the classified employees
are equally qualified, the nonexempt classified employee with the
greatest amount of continuous seniority at that institution is
awarded the position.
(4) A nonexempt classified employee is one to whom the
provisions of the federal Fair Labor Standards Act, as amended,
apply.
(e) In addition to any other information required, any
application for personnel governed by the provisions of this
section shall include the applicant's social security number.
(f) Regardless of the level of seniority for any employee, for
the purposes of this section:
(1) In the case of a reduction in force, an employee at a
community and technical college may not displace any employee of an
institution under the jurisdiction of the commission.
(2) In the case of a reduction in force, an employee at an
institution under the jurisdiction of the commission may not
displace any employee of a community and technical college.
(3) For the purpose of this subsection, an employee performing
a dual service for a sponsoring institution and an administratively
linked community and technical college is an employee at an
institution under the jurisdiction of the commission if the
sponsoring institution receives a fee from the administratively
linked community and technical college for the service performed by that employee.
NOTE: The purpose of this bill is to require that all
decisions regarding temporary or permanent reductions in full-time
classified personnel workforce at state institutions of higher
education, in situations where a job is reduced by reducing the
number of days or hours worked, be made on the basis of seniority.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.