W. Va. Code R. § 217-1-11

Current through Register Vol. XLII, No. 1, January 3, 2025

Section 217-1-11 - Separations, Suspension, and Reinstatement

11.1. Resignation.

11.1.1. An employee who resigns shall present the reasons for the resignation in writing to the agency. The agency shall forward a copy of the resignation to the Division which shall record the resignation. If a written resignation cannot be obtained, the agency shall notify the Division in writing of the resignation of the employee and the circumstances of the resignation.

11.1.2. The agency shall notify the Division when an employee resigns in lieu of being dismissed. The 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 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 5.4. 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 subsection 9.4. of this rule.

11.2. Dismissal.

11.2.1. An agency may dismiss any employee for cause. The agency shall file the reasons for dismissal and the reply, if any, with the Division. Prior to the effective date of the dismissal, the agency head or his or her designee shall:

11.2.1.a. Meet with the employee in a predetermination conference and advise the employee of the contemplated dismissal, provided that a conference is not required when the public interests are best served by withholding the notice or when the cause of dismissal is gross misconduct;

11.2.1.b. Give the employee oral notice confirmed in writing within three working days, or written notice of the specific reason or reasons for the dismissal; and,

11.2.1.c. Give the employee a minimum of 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 agency head or his or her designee. Provided, that 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.

11.2.2. An agency 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 15 days after vacating the workplace. An agency shall not provide severance pay when notice is withheld as provided in this section. Receipt of severance pay does not affect any other right to which the employee is entitled with respect to the dismissal.

11.2.3. An agency may dismiss an employee for job abandonment who is absent from work for more than three consecutive workdays or scheduled shifts without notice to the agency of the reason for the absence or approval 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 or approval. 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 consecutive scheduled workdays. The dismissal is effective 15 days after the agency 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.

11.2.4. In providing any employment verification or reference to another state agency for a dismissed employee, or an employee who resigns in lieu of dismissal, the agency must 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 must comply with the disclosure requirements of W. Va. Code § 55-7-18a.

11.3. Suspension.

11.3.1. Disciplinary Suspension. -- An agency 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. The agency shall file the statement of reasons for the suspension and the reply, if any, with the Division. Prior to the effective date of the suspension, the agency head, or his or her designee shall:

11.3.1.a. Meet with the employee in a predetermination conference and advise the employee of the contemplated suspension, provided that a predetermination conference is not required in certain cases when the public interests are best served by withholding the notice;

11.3.1.b. Give the employee oral notice confirmed in writing within three working days, or written notice of the specific reason or reasons for the suspension; and,

11.3.1.c. Give the employee a minimum of three 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 agency head or his or her designee. Provided, that three working days' advance notice is not required in certain cases when the public interests are best served by withholding the notice.

11.3.2. Non-disciplinary Suspension. -- An agency 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 agency shall give the employee oral notice confirmed in writing within three working days, or written notice of the specific reason or reasons for the suspension. A predetermination conference and three working days' advance notice are not required; however, the agency shall file the statement of reasons for the suspension and the reply, if any, with the Division. Upon completion of the investigation or criminal proceeding, the agency shall:

11.3.2.a. Initiate appropriate disciplinary action as provided in this rule; and,

11.3.2.b. 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 the retroactive wages may be mitigated by other earnings received during the period of suspension. Further, the agency 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.

11.4. Layoff.

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

11.4.2. Organizational Unit. -- The agency shall submit to the Division for approval a description of the unit or units to which a layoff will apply. The organizational unit may be an entire department, agency, or subunit thereof.

11.4.3. Prior to the separation, involuntary reduction in work schedule, or demotion without prejudice of any employee as a result of layoff, the agency shall file with the Division a proposed plan which shall include:

11.4.3.a. A statement of the circumstances requiring the layoff;

11.4.3.b. The approved organizational unit(s) in which the proposed layoff will take place; and,

11.4.3.c. A list of the employees in each class affected by the layoff in order of retention.

11.4.4. It is the duty of the Division to verify the details on which the lists are based and to notify the agency head in writing of the plan's approval or disapproval.

11.4.5. The plan followed by the agency shall be available, upon request in writing, to any employee or adversely affected former employee.

11.4.6. Order of Separation or Reduction. -- After the agency has determined the number and class of positions to be abolished or reduced, and the Division 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:

11.4.6.a. Employees without permanent status in the same class or classes identified for layoff in the following order: seasonal, contract, temporary, exempt part-time professional, 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.

11.4.6.b. 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, or periods during which the employee is paid temporary total disability benefits under the provisions of W. Va. Code § 23-4-1 et seq. 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 agency head 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 Division in writing of the agreement and the results. In the event that the agency wishes to lay off a more tenured employee, the agency 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.

11.4.7. Bumping Rights. -- A 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 Division 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 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 Division 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 classification range.

11.4.8. Salary Reductions for Layoff. -- Salary reductions resulting from provisions of this subdivision shall follow subsection 4.6. of this rule for pay on demotion.

11.4.9. Recall. -- Recall of a 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 agency. 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 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 or by e-mail with delivery confirmed, of the vacancy. It is the responsibility of the employee to notify the agency of any change in mailing and e-mail address.

11.4.10. Preference Hiring. -- When filling vacancies, agencies shall, for a period of 90 days 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 demonstrated capacity, quality, and length of service 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.

11.4.11. Reporting. -- The agency shall report the names of all employees who are to be laid off to the Division in writing no later than 30 days prior to the date notification of the layoff is mailed to the employee.

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

11.5. Like Penalties for Like Offenses. -- In dismissals for cause and other disciplinary actions, agencies shall impose like penalties for like offenses.

11.6. Reinstatement.

11.6.1. A former employee who had attained permanent status under an agency of the Department of Transportation, who resigned in good standing, retired, or was laid off, is eligible for reinstatement. Provided, that he or she has been certified by the Division 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 Division may require the employee to pass a qualifying examination. The agency may refuse to reinstate a former employee for any of the causes stipulated in subsection 5.4 of this rule. Employees appointed through reinstatement shall serve a probationary period as provided in Section 9 of this rule.

11.6.2. Agencies shall reinstate all qualifying employees who left their employment to enter the armed forces of the United States to their former positions or to positions of like class, tenure and pay within two weeks of their requests. The employees must satisfy the eligibility standards set forth in federal law commonly known as the Uniformed Services Employment and Reemployment Rights Act (USERRA). Agencies 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. Agencies 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 subsection 13.4.h. of this rule.

11.6.3. Any qualifying employee who is reinstated to employment under the provisions of this section 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 employment status. He or she shall be credited with all annual and sick leave accumulated and unused at the time the military leave began. The agency shall uniformly apply the provisions in this subdivision to all qualifying employees who are reinstated to employment under the provisions of this section.

W. Va. Code R. § 217-1-11