N.Y. Comp. Codes R. & Regs. tit. 4 § 5.6

Current through Register Vol. 46, No. 25, June 18, 2024

Section 5.6 - Layoff of noncompetitive class employees

(a) Definitions. In connection with the suspension, demotion and displacement of noncompetitive class employees authorized by section 80-a of the Civil Service Law, the following terms shall mean:

(1) Retreat shall mean displacement by a permanent incumbent of another incumbent serving in a position in the title in which the displacing incumbent served at a prior time as provided in subdivision 4 of section 80-a of the Civil Service Law.

(2) Satisfactory service shall mean service by an employee during the final rating period of which he did not receive an "unsatisfactory" performance rating and was not found guilty of misconduct or incompetency pursuant to either section 75 of the Civil Service Law or a disciplinary procedure provided by labor contract which, in either case, resulted in the imposition of any of the following penalties upon such employee:

(i) dismissal from the service;

(ii) suspension without pay for a period exceeding one month; or

(iii) demotion in grade and title.

(b) Advance decisions. An appointing authority may take such steps as it may deem necessary in order to secure binding written commitments in advance of suspension, demotion or displacement from employees potentially affected by such suspension, demotion or displacement as to their willingness to accept reassignment or displacement.

(c) Order of displacement. When two or more permanent incumbents of positions in a specific title are suspended, demoted or displaced at the same time, the order in which they shall be entitled to displace shall be determined by their respective retention standing, with those having the greater retention standing entitled to displace first.

(d) Displacement by probationers.

(1) Probationer having a right to a permanent position. An employee who is serving a probationary term and who has a position formerly held by him on a permanent basis being held open for him has no displacement rights from the position in which he is serving the probationary term pursuant to section 80-a of the Civil Service Law and is afforded none by these rules.

(2) Probationer without a right to a permanent position. An employee who is serving a probationary term and who has no position formerly held by him on a permanent basis being held open for him shall nevertheless have the possibility of displacing upon being suspended or displaced from the position wherein he is serving a probationary term; provided, however:

(i) he has previously completed at least five years of continuous service which shall also have been satisfactory service; and

(ii) he shall not be allowed to displace ahead of any permanent incumbents. The order of displacement among such probationers shall be determined by their respective retention standing, with those having the greater retention standing entitled to displace first.

(e) Refusal or failure to accept appointment to a position afforded by displacement. The refusal or failure of a person to accept appointment to a lower grade position to which he is entitled through displacement shall not affect his right to be placed on a preferred list for the position from which he was suspended, demoted or displaced.

(f) Retreat where title of position has been changed. A permanent incumbent who has been suspended or displaced shall be allowed to retreat to a position in which he last served even though the title of such position has been changed; provided, however, that there has been no substantial change in duties.

(g) Preferred list standing for noncompetitive class employees shall be as follows:

(1) Blind employees whose positions are abolished shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service, whether or not they are also disabled veterans or nondisabled veterans; provided, however, that the blind shall be granted absolute preference on the preferred list over all other employees.

(2) Disabled veterans whose positions are abolished shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service; provided, however, that the date of such original appointment shall be deemed to be 60 months earlier than the actual date, determined in accordance with section 30 of the General Construction Law.

(3) Nondisabled veterans whose positions are abolished shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service; provided, however, that the date of such original appointment shall be deemed to be 30 months earlier than the actual date, determined in accordance with section 30 of the General Construction Law.

(4) Nonveterans whose positions are abolished shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service.

(h) Adjunctive opportunities. (Pursuant to the authority to provide adjunctive opportunities for displacement granted by subdivision 4 of section 80-a of the Civil Service Law.) A permanent incumbent having tenure protection, pursuant to paragraph (c) of subdivision 1 of section 75 of the Civil Service Law, who served in a position in State service and who was suspended or displaced from such position, pursuant to section 80-a of the Civil Service Law, shall displace the incumbent with the least retention right, pursuant to subdivisions 1 and 2 of such section, who is serving in a position in the title with a lower salary grade in which the displacing incumbent last served on a permanent basis prior to service in one or more positions in the title from which he is suspended or displaced, if:

(1) the service of the displacing incumbent while in such former title was satisfactory; and

(2) the position of the junior incumbent is in:

(i) the competitive, noncompetitive or labor class;

(ii) the layoff unit from which the displacing incumbent was suspended or displaced; and

(iii) a lower salary grade than the position from which the displacing incumbent is suspended or displaced; provided, however, that no incumbent shall displace any other incumbent having greater retention standing.

(i) Jurisdictional reclassification from competitive to noncompetitive class.

(1) An employee who held a competitive class position by permanent appointment, which position has been reclassified from the competitive to the noncompetitive class, shall be accorded in such position the same protection as is afforded by section 80-a of the Civil Service Law and by this rule.

(2) In addition, a former competitive class employee, who subsequent to the reclassification of his or her position to the noncompetitive class is suspended or displaced from such position pursuant to section 80-a of the Civil Service Law, shall be entitled to exercise the same displacement rights he or she would have been entitled to exercise had such position remained in the competitive class.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 5.6