H. B. 4331
(By Delegate Rodighiero)
[Introduced February 4, 2010
; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
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: Provided, That 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, 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: Provided, That nothing herein allows
a regular full-time employee to be credited with less than a full
day of seniority credit for each day the employee is employed: Provided, however, That this calculation of seniority for parttime
personnel is prospective and does not reduce any seniority credit
accumulated by any employee prior to the effective date of this
section: Provided further, That 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 employee's
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 article, "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: Provided, That written notice shall be
provided to employees that 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.
This section is new; ;therefore, it has been completely
underscored.