COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 161
(By Senators Jackson and Tomblin)
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[Originating in the Committee on Education; reported February
5, 1999.]
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A BILL to amend and reenact section one, article seven, chapter
eighteen-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to deleting the
limitation of one year relative to the application of
certain seniority rights of employees involuntarily
transferred to nonclassified positions.
Be it enacted by the Legislature of West Virginia:
That section one, article seven, chapter eighteen-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 7. PERSONNEL GENERALLY.
ยง18B-7-1. Seniority for full-time classified personnel;
seniority to be observed in reducing work force; preferred recall list; renewal of listing; notice
of vacancies.
(a) Definitions for terms used in this section shall be in
accordance with those provided in section two, article nine of
this chapter except that the provisions of this section shall
apply only to classified employees whose employment, if
continued, shall accumulate to a minimum total of one thousand
forty hours during a calendar year and extend over at least nine
months of a calendar year: Provided, That this section shall
also apply for one year to any classified employee who is
involuntarily transferred to a position in nonclassified status
for which he or she did not apply: Provided however, That any
classified employee involuntarily transferred to a position in
nonclassified status may only exercise the rights set out in this
section for positions ezquivalent to or lower than the last job
class the employee held.
(b) All decisions by the appropriate governing board or
their agents at state institutions of higher education concerning
reductions in work force of full-time classified personnel,
whether by temporary furlough or permanent termination, 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 so 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 wishes to lay off a more senior
employee, the institution must 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: Provided, That if an employee refuses to accept a
position in a lower job class, such employee shall retain all
rights of recall hereinafter provided. If two or more employees
accumulate identical seniority, the priority shall be 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
work force shall be placed upon a preferred recall list and shall
be recalled to employment by the institution on the basis of
seniority. An employee's listing with an institution shall remain 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
classification(s) 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 shall not
forfeit the right to recall by the institution if compelling
reasons require such employee to refuse an offer of reemployment
by the institution.
The institution shall be required to notify all employees
maintaining active listings on the preferred recall list of all
position openings that from time to time exist. Such notice
shall be sent by certified mail to the last known address of the
employee. It shall be the duty of each employee listed to notify
the institution of any change in address and to timely renew the
listing with the institution. No position openings shall 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, including a nonexempt
employee who has not accumulated a minimum total of one thousand
forty hours during the calendar year or whose contract does not
extend over at least nine months of a calendar year, who meets
the minimum qualifications for a job opening at the institution
where the employee is currently employed, whether the job be a
lateral transfer or a promotion, and applies for same shall be
transferred or promoted before a new person is hired unless such
hiring is affected by mandates in affirmative action plans or the
requirements of Public Law 101-336, The Americans With
Disabilities Act. If more than one qualified, nonexempt
classified employee applies, the best-qualified nonexempt
classified employee shall be awarded the position. In instances
where such classified employees are equally qualified, the
nonexempt classified employee with the greatest amount of
continuous seniority at that state institution of higher
education shall be awarded the position. 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.
NOTE: The purpose of this bill is to delete the limitation
of one year relative to the application of certain seniority
rights of employees involuntarily transferred to nonclassified
positions.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.