(1) Who is classified and 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; or
(2) Who is transferred involuntarily 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 exercise the rights set out in this section only for positions equivalent to or lower than the last job class the employee held.
(b) All decisions by an organization or its agents concerning reductions in workforce of full-time classified employees, whether by temporary furlough or permanent termination, shall be made in accordance with this section.
(1) 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. (2) If the organization desires to lay off a more senior employee, it shall demonstrate that the senior employee cannot perform any other job duties held by less senior employees of that organization 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.
(3) 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 organization.
(c) Each employee laid off during a furlough or reduction in workforce is placed upon a preferred recall list and is recalled to employment by the organization on the basis of seniority.
(1) An employee's listing with an organization 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 organization, the employee's name may be removed from the list.
(2) An employee placed upon the preferred recall list shall be recalled to any position opening by the organization within the classifications in which the employee had previously been employed or to any lateral position for which the employee is qualified.
(3) An employee on the preferred recall list does not forfeit the right to recall by the organization if compelling reasons require the employee to refuse an offer of reemployment by the organization.
(d) The organization shall notify all employees maintaining active listings on the preferred recall list of all position openings that periodically exist.
(1) 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 organization of any change in address and to keep the listing with the organization current.
(2) A position opening may not be filled by the organization, 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.
(e) A nonexempt classified employee is one to whom the provisions of the federal Fair Labor Standards Act, as amended, apply. A nonexempt classified employee, who applies and meets the minimum qualifications for a nonexempt job opening at the organization 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 mandates in affirmative action plans or the requirements of Public Law 101-336, the Americans with Disabilities Act.
(2) This subsection applies to any nonexempt classified employee, including one who has not accumulated a minimum total of one thousand forty hours during the calendar year and 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 organization is awarded the position.
(f) In addition to any other information required, applications for employment by personnel governed by this section shall include each applicant's social security number.
(g) Regardless of the level of seniority for an employee, for the purposes of this section in the case of a reduction in force:
(1) An employee at an organization under the jurisdiction of the council may not displace an employee of an organization under the jurisdiction of the commission.
(2) An employee at an organization under the jurisdiction of the commission may not displace an employee of an organization under the jurisdiction of the council.
(3) An employee performing a dual service for a formerly administratively linked community and technical college and a former sponsoring institution under the jurisdiction of the commission is an employee of the institution under the jurisdiction of the commission if that institution receives a fee from the community and technical college for the service performed by the employee. Note: WV Code updated with legislation passed through the 2012 1st Special Session