W. Va. Code R. § 143-1-12

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 143-1-12 - Separations, Suspension, and Reinstatement

12.1. Resignation.

12.1.a. An employee who resigns shall present the reasons for the resignation in writing to the appointing authority. The appointing authority shall forward a copy of the resignation to the Director who shall record the resignation. If a written resignation cannot be obtained, the appointing authority shall notify the Director in writing of the resignation of the employee and the circumstances of the resignation.

12.1.b. The appointing authority shall notify the Director when an employee resigns in lieu of being dismissed. Such notice shall specify the reasons for the intended dismissal. Employees informed of contemplated dismissal who choose to resign prior to issuance of formal notice or employees permitted to resign through settlement after being dismissed are considered to have not separated in good standing, and the employee is ineligible for reinstatement and may be disqualified from employment in the classified service as provided in subsection 6.4 of this rule. Provided, that employees resigning in lieu of dismissal for failure to return to work from medical leave of absence without pay, maintain required licensure, or meet probationary performance expectations shall not be disqualified from future employment except as provided in subdivision 10.5.b of this rule.

12.2. Dismissal.

12.2.a. An appointing authority may dismiss any employee for cause. The appointing authority shall file the reasons for dismissal and the reply, if any, with the Director. Prior to the effective date of the dismissal, the appointing authority or his or her designee shall:

12.2.a.1. meet with the employee in a predetermination conference and advise the employee of the contemplated dismissal.

12.2.a.2. give the employee oral notice confirmed in writing within three (3) working days, or written notice of the specific reason or reasons for the dismissal; and,

12.2.a.3. give the employee a minimum of fifteen (15) days' advance notice of the dismissal to allow the employee a reasonable time to reply to the dismissal in writing, or upon request to appear personally and reply to the appointing authority or his or her designee. Provided, that fifteen (15) days' advance notice is not required when the public interests are best served by withholding the notice or when the cause of dismissal is gross misconduct.

12.2.b. An appointing authority may require that a classified employee dismissed for cause immediately vacate the workplace, or a classified employee dismissed for cause may elect to do so. If the appointing authority requires a dismissed employee to immediately vacate the workplace in lieu of working during the notice period, or if an employee who receives notice of dismissal elects to immediately vacate the workplace, the employee is entitled to receive severance pay attributable to the time he or she otherwise would have worked, up to a maximum of fifteen (15) days after vacating the workplace. An appointing authority shall not provide severance pay when notice is withheld as provided in subdivision 12.2.a of this rule. Receipt of severance pay does not affect any other right to which the employee is entitled with respect to the dismissal.

12.2.c. An appointing authority may dismiss an employee for job abandonment who is absent from work for more than three (3) consecutive workdays or scheduled shifts without notice to the appointing authority of the reason for the absence as required by established agency policy. Consecutive scheduled workdays or scheduled shifts are determined without regard to scheduled days off that occur during the period of absence without notice. Thus, annual leave, holidays, modified holiday observance, compensatory time, regularly scheduled days off, or any other time for which the employee was not scheduled to work during the period of absence shall not constitute a break when determining the three (3) consecutive scheduled work days. The dismissal is effective fifteen (15) days after the appointing authority notifies the employee of the dismissal. Whereas job abandonment is synonymous with the term resignation, a predetermination conference is not required and an employee dismissed for job abandonment is not eligible for severance pay.

12.2.d. In providing any employment verification or reference to another appointing authority for a dismissed employee, or an employee who resigns in lieu of dismissal, the appointing authority shall disclose that the separation was due to dismissal, or resignation in lieu of dismissal, and that the employee did not leave employment in good standing and shall comply with the disclosure requirements of W. Va. Code § 55-7-18a.

12.3. Suspension.

12.3.a. Disciplinary Suspension. -- An appointing authority may suspend any employee without pay for a specified period of time for cause. Accrued leave shall not be paid to employees during the period of suspension. Further, an employee who works additional hours during the same workweek or work period as the suspension will still have tenure reduced for the length of the suspension. The appointing authority shall file the statement of reasons for the suspension and the reply, if any, with the Director. Prior to the effective date of the suspension, the appointing authority or his or her designee shall:

12.3.a.1. meet with the employee in a predetermination conference and advise the employee of the contemplated suspension.

12.3.a.2. give the employee oral notice confirmed in writing within three (3) working days, or written notice of the specific reason or reasons for the suspension; and,

12.3.a.3. give the employee a minimum of three (3) working days' advance notice of the suspension to allow the employee being suspended a reasonable time to reply in writing, or upon request to appear personally and reply to the appointing authority or his or her designee. Provided, that three (3) working days' advance notice is not required in certain cases when the public interests are best served by withholding the notice.

12.3.b. Non-disciplinary Suspension. -- An appointing authority may suspend any employee without pay indefinitely to perform an investigation regarding an employee's conduct which has a reasonable connection to the employee's performance of his or her job or when the employee is the subject of an indictment or other criminal proceeding. Such suspensions are not considered disciplinary in nature and an employee may choose to use accrued annual leave during the period of non-disciplinary suspension but is not eligible for any other leave afforded in this rule. The appointing authority shall give the employee oral notice confirmed in writing within three (3) working days, or written notice of the specific reason or reasons for the suspension. A predetermination conference and three (3) working days' advance notice are not required; however, the appointing authority shall file the statement of reasons for the suspension and the reply, if any, with the Director.

Upon completion of the investigation or criminal proceeding, the appointing authority shall:

12.3.b.1. initiate appropriate disciplinary action as provided in this rule; and,

12.3.b.2. unless the employee is dismissed or otherwise separates from employment prior to completion of the investigation or criminal proceeding, provide retroactive wages or restore annual leave for the period of suspension; provided, that such retroactive wages may be mitigated by other earnings received during the period of suspension. Further, the appointing authority and employee may agree to consider all or part of the period of unpaid suspension pending investigation or criminal indictment or proceeding as fulfilling the period of any disciplinary suspension without pay.

12.4. Layoff.

12.4.a. When due to business necessity, as defined in this rule, it becomes necessary to implement the provisions of this subdivision, the appointing authority may initiate a layoff in accordance with the provisions of this rule.

12.4.b. Organizational Unit. -- The appointing authority shall submit to the Board for approval a description of the unit or units to which a layoff shall apply. The organizational unit may be an entire department, agency, or subunit thereof.

12.4.c. Prior to the separation, involuntary reduction in work schedule, or demotion without prejudice of any employee as a result of layoff, the appointing authority shall file with the Director a proposed plan which shall include:

12.4.c.1. a statement of the circumstances requiring the layoff;

12.4.c.2. the approved organizational unit(s) in which the proposed layoff shall take place; and,

12.4.c.3. a list of the employees in each class affected by the layoff in order of retention.

12.4.d. The Director shall verify the details on which the lists are based and to notify the appointing authority in writing of the plan's approval.

12.4.e. The plan followed by the appointing authority shall be available, upon request in writing, to any employee or adversely affected former employees.

12.4.f. Order of Separation or Reduction. -- After the appointing authority has determined the number and class of positions to be abolished or reduced and the Board has approved the organizational unit to which the layoff will apply, the order of separation or reduction shall be applied in the following manner and order:

12.4.f.1. employees without classified permanent status in the same class or classes identified for layoff in the following order: contract, temporary, exempt part-time professional, provisional, and probationary. Provided, that an employee in the organizational unit to which the layoff will apply may volunteer to be separated through layoff in place of a probationary or permanent employee with less tenure.

12.4.f.2. permanent employees by job class on the basis of tenure as a permanent employee of a state agency or in the classified service regardless of job class or title. No tenure credit accrues for periods during which terminal annual leave is paid nor for periods during which an employee is not paid a wage or salary except for military leave, subsidized education leave, or periods during which the employee is paid temporary total disability benefits under the provisions of W. Va. Code § 23-4-1 for a personal injury received in the course of and resulting from covered employment as a permanent employee of a state agency or in the classified service, or unless otherwise provided by State or federal statute. In the event of a tie in the order of separation or reduction, the appointing authority or his or her representative and those employees who are tied shall agree on a means of breaking the tie by either a coin toss or lot drawing and shall notify the Director in writing of the agreement and the results. In the event that the agency wishes to lay off a more tenured employee, the appointing authority must demonstrate that the tenured employee cannot perform any other job duties held by less tenured employees within the designated organizational unit in the job class or any other equivalent or lower job class for which the tenured employee is qualified.

12.4.g. Bumping Rights. -- A classified permanent employee who is to be separated or reduced in hours due to layoff may request a reassignment and lateral class change or demotion without prejudice to an existing position in a class in the occupational group in the same organizational unit approved by the Board for reduction in force unless the result would be to cause the layoff of another permanent employee who possesses greater tenure. The employee exercising bumping rights must be available for the work schedule and location of the job to which he or she has requested. A permanent employee who is subsequently scheduled for layoff under these provisions as a result of another employee having greater tenure exercising his or her bumping rights by requesting a lateral class change or demotion without prejudice has the same bumping rights as provided for in this procedure. The Director shall develop the occupational groups in the classified service based on similarity of work and required knowledge, skills and abilities. Provided, an employee exercising bumping rights as a result of a reduction in hours shall assume the full work schedule of the position and may have his or her compensation reduced if the position is assigned to a lower compensation range.

12.4.h. Salary Reductions for Layoff. -- Salary reductions resulting from provisions of this subdivision shall follow subsection 5.6 of this rule for pay on demotion.

12.4.i. Recall. -- Recall of a classified permanent employee separated or reduced in hours due to layoff shall be in reverse order of the layoff to the class from which the employee was laid off or any lower class in the class series or to any class previously held in the occupational group. A recall list shall be created and maintained by the appointing authority. A permanent employee shall remain on the recall list for the length of his or her tenure on the date of the layoff or for a period of two (2) years, whichever is less. The agency shall first consider for reemployment those former permanent employees whose names appear on the recall list for the class in which a vacancy has occurred and no original appointment of a new employee or reinstatement of a former permanent employee shall be made to the class until all former permanent employees on the recall list have been given first chance of refusal of the vacancy. A permanent employee shall be recalled to jobs within the county wherein his or her last place of employment is located or within a contiguous county. The agency shall notify any laid off permanent employee who is eligible for recall to a position under these provisions by certified mail of the vacancy. It is the responsibility of the employee to notify the agency of any change in mailing address. Individuals who have been hired for permanent employment after layoff shall not forfeit the remainder of the recall eligibility period and are not required to serve a probationary period.

12.4.j. Preference Hiring. -- When filling vacancies at agencies, appointing authorities shall, for a period of twelve (12) months after a permanent classified employee in another agency has been placed on a preference register due to layoff, give preference to such employee based on tenure and fitness over all but existing classified employees of the agency. This preference shall not supersede the recall rights of employees who have been laid off in the agency. Preference hiring shall be accomplished by original appointment.

12.4.k. Reporting. -- The appointing authority shall report the names of all employees who are to be laid off to the Director in writing no later than the date notification of the layoff is mailed to the employee.

12.4.l. Appeals. -- Employees may file appeals from layoffs in accordance with W. Va. Code § 6C-2-1 et seq.

12.5. Like Penalties for Like Offenses. -- In dismissals for cause and other disciplinary actions, appointing authorities shall impose like penalties for like offenses.

12.6. Reinstatement.

12.6.a. A former employee who had attained permanent status under the Division of Personnel who has resigned in good standing, retired, or who has been laid off is eligible for reinstatement. Provided, that he or she has been certified by the Director as meeting the current minimum qualifications as to training and experience of the class of position to which he or she is being appointed. Prior to making the certification, the Director may require the employee to pass a qualifying examination. The Director may refuse to reinstate a former employee for any of the causes stipulated in subdivision 6.4.a of this rule. Employees appointed through reinstatement shall serve a probationary period as provided in Section 10 of this rule.

12.6.b. Appointing authorities shall reinstate all qualifying employees who left state or classified service to enter the federal armed forces of the United States or armed forces of the State to their former positions or to positions of like class, tenure and pay within two (2) weeks of their requests provided that such employees satisfy the eligibility standards set forth in federal law commonly known as the Uniformed Services Employment and Reemployment Rights Act (USERRA). Appointing authorities shall also reinstate, at the end of their recovery periods, all qualifying employees who are hospitalized for, or convalescing from, illnesses or injuries incurred in, or aggravated during, the performance of military service provided that such employees satisfy the eligibility standards set forth in USERRA. Appointing authorities may permit qualifying employees to return to work at less than full duty, but the terms of return are subject to the same conditions specified in subdivision 14.4.h of this rule.

12.6.c. Any qualifying employee who is reinstated to state or classified employment under the provisions of subdivision 12.6.b of this rule shall be granted all within-range salary adjustments and may be granted salary advancements he or she would have received had he or she remained in active status in the classified service. He or she shall be credited with all annual and sick leave accumulated and unused at the time the military leave began subject to the maximum carry-forward rates established in subsection 14.3 of this rule. The appointing authority shall uniformly apply the provisions in this subdivision to all qualifying employees who are reinstated to state or classified employment under the provisions of subdivision 12.6.b of this rule.

W. Va. Code R. § 143-1-12