(a) The intent of the Legislature in enacting this article and articles eight, nine and nine-a of this chapter is to establish a statewide, integrated higher education human resources system capable of, but not limited to, meeting the following objectives:
(1) Providing benefits to the citizens of the State of West Virginia by supporting the public policy agenda as articulated by state policymakers;
(2) Assuring fiscal responsibility by making the best use of scarce resources;
(3) Promoting fairness, accountability, credibility, and transparency in personnel decisionmaking;
(4) Reducing or, wherever possible, eliminating arbitrary and capricious decisions affecting employees of higher education organizations as defined in section two, article nine-a of this chapter;
(5) Creating a stable, self-regulating human resources system capable of evolving to meet changing needs;
(6) Providing for institutional flexibility with meaningful accountability;
(7) Adhering to federal and state laws;
(8) Adhering to duly promulgated and adopted rules; and
(9) Implementing best practices throughout the state higher education system.
(10) Providing current, reliable data to governing boards, the commission, the council, the Governor and the Legislature to inform the decision-making process of these policymakers.
(b) To accomplish these goals, the Legislature encourages organizations to pursue a human resources strategy which provides monetary and nonmonetary returns to employees in exchange for their time, talents and efforts to meet articulated goals, objectives and priorities of the state, the commission and council, and the organization. The system should maximize the recruitment, motivation and retention of highly qualified employees, ensure satisfaction and engagement of employees with their jobs, ensure job performance and achieve desired results.
(c) It is the intent of the Legislature to establish a human resources strategy that is fair, accountable, credible, transparent and systematic. In recognition of the importance of these qualities, the human resources strategy outlined in this article, together with articles eight, nine and nine-a of this chapter, is designated and may be cited as "FACTS for Higher Education".
(d) It is the intent of the Legislature to require each higher education organization to achieve full funding of the salary schedule established in section three, article nine of this chapter. A higher education organization, as defined in section two, article nine-a of this chapter, is subject to the provisions of article nine of this chapter until full funding is reached.
(e) It is further the intent of the Legislature to encourage strongly that each organization dedicate a portion of future tuition increases to fund the classified salary schedule, and after full funding of the salary schedule is achieved, to move toward meeting salary goals for faculty, classified and nonclassified employees.
For the purposes of this article and articles eight, nine and nine-a of this chapter, the following words have the meanings ascribed to them unless the context clearly indicates a different meaning:
(1) "Benefits" means programs that an employer uses to supplement the cash compensation of employees and includes health and welfare plans, retirement plans, pay for time not worked and other employee perquisites.
(2) "Compensation" means cash provided by an employer to an employee for services rendered.
(3) "Compensatory time" and "compensatory time off" mean hours during which the employee is not working, which are not counted as hours worked during the applicable work week or other work period for purposes of overtime compensation and for which the employee is compensated at the employee's regular rate of pay.
(4) "Employee classification" or "employee class" means those employees designated as classified employees; nonclassified employees, including presidents, chief executives and top level administrators and faculty, as these terms are defined in this article and articles eight, nine and nine-a of this chapter.
(5) "Full-time" means an employee 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
(6) "Health and welfare benefit plan" means an arrangement which provides any of the following: Medical, dental, visual, psychiatric or long-term health care, life insurance, accidental death or dismemberment benefits, disability benefits or comparable benefits.
(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.
(b) The commission, on behalf of the council, governing boards and itself, shall contract for a retirement plan for their employees, to be known as the "Higher Education Retirement Plan". The commission, council and governing boards shall make periodic deductions from the salary payments due employees in the amount they are required to contribute to the Higher Education Retirement Plan, which deductions shall be six percent.
(c) The commission, council and governing boards may contract for supplemental retirement plans for any or all of their employees to supplement the benefits employees otherwise receive. The commission, council and governing boards may make additional periodic deductions from the salary payments due the employees in the amount they are required to contribute for the supplemental retirement plan.
(d) An organization, by way of additional compensation to their employees, shall pay an amount, which, at a minimum, equals the contributions of the employees into the higher education retirement plan from funds appropriated to the commission, council or governing board for personal services.
(e) As part of an overall compensation plan, the commission, council or a governing board, each at its sole discretion, may increase its contributions to any employee retirement plan to an amount that exceeds the contributions of employees.
(f) Each participating employee has a full and immediate vested interest in the retirement and death benefits accrued from all the moneys paid into the Higher Education Retirement Plan or a supplemental retirement plan for his or her benefit. Upon proper requisition of a governing board, the commission or council, the Auditor periodically shall issue a warrant, payable as specified in the requisition, for the total contributions so withheld from the salaries of all participating employees and for the matching funds of the commission, council or governing board.
(g) Any person whose employment commences on or after July 1, 1991, and who is eligible to participate in the Higher Education Retirement Plan, shall participate in that plan and is not eligible to participate in any other state retirement system: Provided, That the foregoing provision does not apply to a person designated as a 21st Century Learner Fellow pursuant to section eleven, article three, chapter eighteen-a of this code. The additional retirement plan contracted for by the governing boards prior to July 1, 1991, remains in effect unless changed by the commission. Nothing in this section considers employees of the council or governing boards as employees of the commission, nor is the commission responsible or liable for retirement benefits contracted by, or on behalf of, the council or governing boards.
The rules shall encourage continuing education and staff development and shall require that employees be selected on a nonpartisan basis using fair and meaningful criteria which afford all employees opportunities to enhance their skills. These rules also may include reasonable provisions for the continuation or return of any faculty or classified employee receiving the benefits of the education or training, or for reimbursement by the state for expenditures incurred on behalf of the faculty member or classified employee.
(b) Subject to legislative appropriation therefor, the commission and council shall provide additional, regular, training and professional development for employees engaged in human resources-related activities at all organizations. The training and professional development:
(1) Shall be mandatory with appropriate consideration given to limiting travel demands on employees; and
(2) Shall be in addition to and may not supplant the training and professional development regularly provided to any class of employees by each organization prior to the effective date of this section.
(b) Each governing board, with the advice and assistance of the staff councils and other groups representing classified employees, shall promulgate and adopt a rule in accordance with section six, article one of this chapter that discourages temporary, nonemergency, institutionally-imposed changes in an employee's work schedule; that maintains reasonable continuity in working schedules and conditions for employees; and that requires institutions to consider feasible and innovative ways to use the institution's classified employees most efficiently. These innovations may include, but are not limited to, flexibility in employee scheduling, job-sharing and four-day work weeks.
(a) Annual personnel reports. --
(1) No later than December 1, 2013, and annually thereafter, the commission and council shall report to the Legislative Oversight Commission on Education Accountability addressing the following issues:
(A) Progress made by organizations toward achieving full funding of the temporary classified employees' salary schedule pursuant to section three, article nine of this chapter; and
(B) Detailed data disaggregated by organization and employee category or classification, comparing funding for salaries of faculty, classified employees and nonclassified employees as a percentage of the average funding for each of these classes or categories of employees among the organization's state, region or national markets, as appropriate, and among similar organizations within the state systems of public higher education.
(2) The commission and council shall prepare a human resources report card summarizing the performance of organizations on key human resources measures established by the commission and council. The report card shall be presented to the Legislative Oversight Commission on Education Accountability annually and shall be made available to the general public. At a minimum, the human resources report card shall contain the following data:
(A) Human resources department metrics by organization:
(i) Number of human resources staff;
(ii) Ratio of human resources staff to total number of full- time equivalent employees;
(iii) Percentage of human resources staff functioning in supervisory roles and percentage in administrative roles;
(iv) Number of positions reporting to the head of human resources;
(v) Areas of human resources functions outsourced to external entities;
(vi) Total expenses per full-time equivalent employee; and
(vii) Tuition revenue per full-time equivalent employee.
(B) Human resources expense data:
(i) Ratio of human resources expenses to operating expenses;
(ii) Ratio of human resources expenses to number of full-time equivalent employees; and
(iii) Total human resources expense per organization employee.
(C) Compensation data:
(i) Average amount of annual salary increase per full-time equivalent organization employee;
(ii) Total amount of organization employee salaries as a percent of operating expenses; and
(iii) Total amount of organization employee benefit costs as a percent of cash compensation.
(D) System metrics:
(i) Comparisons of faculty salaries at each organization to market averages; and
(ii) Comparisons of classified and nonclassified employee salaries at each organization to current market averages;
(E) An account of the total amount, type of training or professional development provided, the number of employees who participated and the overall cost of the training and professional development provided to employees pursuant to section six of this article; and
(F) Other measures the commission or council considers appropriate to assist policymakers in evaluating the degree of success in implementing best human resources practices by higher education organizations.
(b) Job classification system report. --
By July 1, 2016, and at least once within each five-year period thereafter, the commission and council jointly shall review the effectiveness of the system for classifying jobs and submit an in-depth report to the Legislative Oversight Commission on Education Accountability. The report shall include, but is not limited to, findings, recommendations and supporting documentation regarding the following job classification issues:
(1) The effectiveness of the point factor methodology and a determination of whether it should be maintained; and
(2) The status of the job evaluation plan, including the factors used to classify jobs or their relative values, and a determination of whether the plan should be adjusted.
(c) It is the responsibility of the head of human resources for each organization to prepare and submit to the president or chief executive officer all human resources data requested by the commission and council. The president or executive officer of each organization shall submit the requested data at times established by the commission and council.
(d) In meeting reporting requirements established by this article and articles eight, nine and nine-a of this chapter:
(1) The commission and council shall use the most recent data available and, as appropriate, shall benchmark it against best practices and appropriate labor markets; and
(2) With the exception of the annual human resources report card and any other report designated as due no later than a date certain, the commission and council may combine two or more personnel reports if the dates on which they are due to the Legislature fall within a sixty-day period.
(a) The commission and council jointly shall conduct an initial human resources review of each organization to be carried out, subject to legislative appropriation, by an external vendor possessing experience and expertise in conducting these reviews. The initial review shall be completed by October 1, 2011, and shall be designed to compare current human resources practices at each organization to best practices to identify areas of strength or deficiency, to identify functions that should be the responsibility of the human resources department, but are incorrectly assigned or carried out by other offices within each organization, to assist in targeting employee training and development, to determine the degree to which organizations are adhering to state and federal laws related to human resources administration and to provide data necessary to guide policymakers in developing personnel rules and implementing the classification and compensation system.
(b) Following completion of the initial human resources review, the commission and council jointly shall conduct a systematic human resources review of each organization at least once within each five-year period.
(1) The review shall focus on compliance with statutory mandates contained in this article and articles eight, nine and nine-a of this chapter and on adherence to personnel rules of the commission and council.
(2) In the absence of special circumstances, the commission and council shall provide organizations with reasonable notice prior to conducting a human resources review and shall identify the subjects to be examined in the review.
(1) The time is awarded pursuant to a written agreement between the employer and the employee arrived at before the work is performed. A written agreement may be modified at the request of the employer or employee, but under no circumstances may changes in the agreement deny an employee compensatory time already acquired;
(2) The time is recorded in the employer's record of hours worked; and
(3) The employee has not accrued compensatory time in excess of the prescribed limits.
(b) An employee may accrue up to four hundred eighty hours of compensatory time if the employee's work is a public safety activity, an emergency response activity or a seasonal activity. An employee engaged in other work may accrue up to two hundred forty hours of compensatory time. An employee who has accrued four hundred eighty or two hundred forty hours of compensatory time, as the case may be, shall be paid overtime compensation for additional hours of work. If compensation is paid to an employee for accrued compensatory time, the compensation shall be paid at the regular rate earned by the employee at the time the employee received the payment.
(c) If employment is terminated, an employee who has accrued compensatory time pursuant to this section, shall be paid for the unused compensatory time at a rate of compensation not less than the higher amount calculated using one of the following formulas:
(1) The average regular rate received by the employee during the first three years of the employee's employment; or
(2) The final regular rate received by the employee.
(d) An employee who has accrued compensatory time as authorized by this section, and who has requested the use of compensatory time, shall be permitted by the employer to use this time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operation of the employing agency. Compensatory time must be used within one year from the time it is accrued.
(a) Notwithstanding any provision of this code to the contrary, by July 1, 2016, the percentage of personnel placed in the category of nonclassified at a higher education organization may not exceed twenty-five percent of the total number of classified and nonclassified employees of that organization as those terms are defined in section two, article nine-a of this chapter and who are eligible for membership in a state retirement system of the State of West Virginia or other retirement plan authorized by the state. An institution may not have more than ten percent of its total number of classified and nonclassified employees in positions considered by the president to be critical to the institution pursuant to said section two, article nine-a of this chapter.
A higher education organization which has more than twenty- five percent of its employees placed in the nonclassified category as defined by this subsection on July 1, 2015, shall reduce the number of nonclassified employees to no more than twenty-five percent by July 1, 2016.
(b) For the purpose of determining the ratio of nonclassified employees pursuant to this section, the following conditions apply:
(1) Organizations shall count faculty or classified employees, respectively, who retain the right to return to faculty or classified employee positions, in the employee category they are serving in at the time of reporting as required by subsections (a) and (b), section eight of this article. Such employees will be counted in their original category at such time as they exercise their return rights.
(2) Athletic coaches are excluded from calculation of the ratio. The commission and the council shall include consideration of this employee category in each review required by section nine of this article and shall monitor organizations' use of this category and include this information in the report required by (a), section eight of this article.
(c) Powers and duties of commission and council regarding nonclassified staff ratios. -
(1) The commission and council shall provide advice and technical assistance to organizations under their respective jurisdictions in collecting and interpreting data to ensure that they fulfill the requirements established by this section. Consideration of these issues shall be made part of each review required by section nine of this article and information from the review included in the report required by subsection (a), section eight of this article;
(2) The chancellors shall monitor the progress of the organizations in meeting the deadlines established in this section and shall report such in the annual human resources report card.
(d) The current annual salary of a nonclassified employee may not be reduced if his or her position is redefined as a classified position solely to meet the requirements of this section. If such a nonclassified employee is reclassified, his or her salary does not constitute evidence of inequitable compensation in comparison to other employees in the same pay grade.
(e) For the purposes of this section only the commission and council are not considered higher education organizations.
(1) A classified or nonclassified employee who is employed by a higher education governing board, by the commission or by the council; or
(2) A faculty member, as defined in section one, article eight of this chapter, who is eligible to accrue sick leave.
(b) An employee may donate sick and annual leave to a leave bank established and operated in accordance with subsection (d) of this section or directly to another employee in accordance with subsection (e) of this section. No employee may be compelled to donate sick or annual leave. Any leave donated by an employee pursuant to this section shall be used only for the purpose of catastrophic illness or injury as defined in subsection (c) of this section and shall reduce, to the extent of such donation, the number of days of annual or sick leave to which the employee is entitled.
(c) For the purpose of this section, a catastrophic illness or injury is one that is expected to incapacitate the employee and create a financial hardship because the employee has exhausted all sick and annual leave and other paid time off. Catastrophic illness or injury also includes an incapacitated immediate family member as defined by a governing board, the commission or the council, as appropriate, if this results in the employee being required to take time off from work for an extended period of time to care for the family member and if the employee has exhausted all sick and annual leave and other paid time off.
(d) A leave bank or banks may be established at each state institution of higher education, the commission or the council to which employees may donate either sick or annual leave. The bank or banks may be established jointly by the policy commission and the governing boards or may be established for the commission, the council, and each of the governing boards. Sick or annual leave may be deposited in the leave bank, and shall be reflected as a day-for-day deduction from the sick or annual leave balance of the depositing employee.
Donated leave may be withdrawn by any employee experiencing a catastrophic illness or injury when the following conditions are met:
(1) The president of the institution or the chancellor of the commission or the council, as appropriate, verifies that the employee is unable to work due to the catastrophic illness or injury; and
(2) The president of the institution or a chancellor, as appropriate, approves the withdrawal and provides written notice to the personnel office.
The withdrawal shall be reflected as a day-for-day addition to the leave balance of the withdrawing employee.
(e) Sick or annual leave may be donated to an employee experiencing a catastrophic illness or injury. The leave shall be donated at the request of the employee after appropriate verification that the employee is unable to work due to the catastrophic illness or injury as determined by the president of the institution or the appropriate chancellor. When transfer of sick or annual leave is approved by the president of the institution or the appropriate chancellor, any employee may donate sick or annual leave in one-day increments by providing written notice to the personnel office. Donations shall be reflected as a day-for-day deduction from the sick or annual leave balance of the donating employee. An employee receiving the donated sick or annual leave shall have any time which is donated credited to his or her account in one-day increments and reflected as a day-for-day addition to the leave balance of the receiving employee.
(f) Use of donated credits may not exceed a maximum of twelve continuous calendar months for any one catastrophic illness or injury.
(1) The total amount of sick or annual leave withdrawn or received may not exceed an amount sufficient to ensure the continuance of regular compensation and may not be used to extend insurance coverage pursuant to section thirteen, article sixteen, chapter five of this code.
(2) An employee withdrawing or receiving donations of sick or annual leave pursuant to this section shall use any leave personally accrued on a monthly basis prior to receiving additional donated sick or annual leave.
(g) Donated sick or annual leave deposited in an institutional leave bank or transferred under subsection (d) of this section may be inter-institutional in accordance with the policies of the appropriate governing board. Each institution, the commission or the council is responsible for the administration of the sick or annual leave deposits, withdrawals and transfers of its employees. Rules implementing the provisions of this section may be adopted jointly or separately by the governing boards, the commission or the council in accordance with section six, article one of this chapter and, in the case of the commission and council, in accordance with article three-a, chapter twenty-nine-a of this code.
(a) The commission and council shall study the following issues relating to employment practices:
(1) Developing a fair and rational policy based upon best human resources practices for covering reductions in force, furloughs and other issues relating to seniority, including determining how employees shall be treated whose salaries are derived from funds other than state appropriations;
(2) Determining the advantages and disadvantages of maintaining the internal preferences for hiring, promoting and transferring classified employees;
(3) Determining the appropriate definition of a "nonclassified" position, recommending a best practice criteria for designating positions as nonclassified and recommending the appropriate number or ratio of nonclassified positions for commission and council organizations.
(4) Recommending a rational, uniform policy to determine the status of employees whose positions are funded, in whole or in part, by an external grant or contract from a federal, state or local government or a private entity.
(b) The commission and council shall complete the work and report their findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability upon completion, but no later than January 1, 2018.
Note: WV Code updated with legislation passed through the 2016 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.