WEST virginia Legislature
2017 regular session
By
[
to the Committee on Education then Finance
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new section, designated
§29-6-13, 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 extra 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 §29-6-13, to
read as follows:
ARTICLE 6. CIVIL SERVICE SYSTEM.
§29-6-13. 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. However, 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, shall 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. However, this
section 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. The 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. 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.
(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) Extra-duty assignments. --
(1) For the purpose of this section, "extra-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 extra-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 extra 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 extra-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. However, written
notice shall be provided to employees who 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.
NOTE: The purpose of this bill is to recognize
seniority for public employees for the purposes of promotion, transfer,
advancement, lay off, reduction in force and recall.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.