P.R. Laws tit. 3, § 8799
The procedure to carry out Phase II shall be as provided in this section.
(a) Temporary suspension. — With the immediate implementation of Phase II, all clauses, precepts and/or provisions applicable to employees and/or positions subject to the provisions of this chapter, contained in laws, collective bargaining agreements, agreements, supplementary agreements, policies, employment manuals, circular letters, contractual letters, addenda, certifications, employment regulations, rules and terms, normative letters, classification plans and/or compensation plans regarding:
(1) Promotions, demotions, relocations and/or transfers;
(2) retentions and layoffs that are in conflict with what is adopted in this chapter;
(3) downsizing of the workforce or layoffs, as well as any other provision that requires compliance with certain necessary measures prior to the implementation of any downsizing of the workforce or layoffs;
(4) reinstatement and adoption of a register for eligible persons;
(5) any provision that prevents assigning the corresponding tasks to a group of employees, employment classifications, grades, labor union, or appropriate union;
(6) any provision that prevents the outsourcing of tasks assigned to a group of employees, employment classifications, grades, labor union, or appropriate union;
(7) any provision that prevents the consolidation of tasks in positions, employment classifications or grades;
(8) provisions on the limitations of managerial or administrative rights of the agencies, excepting that which is not in conflict with this chapter;
(9) provisions or clauses through which the agency is bound to faithful compliance with what is agreed or pacted upon, regarding the aspects that are in conflict with the provisions of this chapter;
(10) requirements on the use of seniority, to the extent that the seniority provisions are contrary to the provisions of this chapter or that constitute a limitation to make changes in the functions, promotions, demotions, relocations, transfers, assignments or other transactions that are necessary to prevent that services be affected;
(11) procedures for the resolutions of controversies, review and/or appeals that are in conflict with the provisions that, with respect to such areas, are provided in this chapter.
The suspension of the clauses and provisions described in this subsection shall be for a term of two (2) years, being the Governor able to reduce this period through an Executive Order, should the OMB certify that the economies resulting from the implementation of the mechanisms provided in this section are enough to cover the objectives.
(b) Layoffs. —
(1) In view of the situation of fiscal emergency, the scarcity of fiscal resources, the seriousness of the problems we face, and the urgency to correct the fiscal problems, the agencies are hereby exempted from exhausting measures such as relocation of personnel, retraining of employees, enjoyment of accrued vacation leaves, enjoyment of leave without pay, and the reduction or work days or demotions, prior to the implementation of layoffs.
(2) Agencies shall notify the termination to all employees who, on the effective date of this act, have a transitory or non-regular appointment; therefore, it shall not be necessary to observe the seniority criteria with respect to such employees. The written notice to such effect that the agencies shall remit shall advise employees of their right to request a review of the decision of the agency before CASARH, pursuant to the provisions of § 1468m of this title, and its regulations. Such notice shall be delivered by hand or by certified mail with acknowledgment of receipt to the address that appears in the records of the agency.
(3) The layoff of employees with a permanent or career appointment shall be implemented by exclusive observance of the seniority criteria, so that those who have less seniority shall be the first ones to be laid off.
(4) In order to determine the seniority of the affected employees, all services rendered by the same in the public service shall be taken into consideration, regardless of the provisions of collective bargaining agreements, regulations, circular letters and other normative documents.
(5) The JREF is hereby created, which shall be constituted by the President of the GDB, who shall direct the Board, the Secretary of Labor, the Secretary of the Department of Economic Development and Commerce of Puerto Rico, the Secretary of the Department of the Treasury and the Executive Director of OMB. Its members, in the performance of this task, shall not receive additional remuneration to that received for the discharge of their duties in their agencies or departments.
(6) In addition to the powers granted by this chapter, the JREF shall have all the powers necessary and convenient to undertake the task entrusted to it by this act, including but without being limited to conduct or direct the agencies or departments that are in its charge, to conduct the needed studies; require of the agencies the information needed to perform its task; advise the Governor and the agencies in all that pertains employees to be dismissed; evaluate, approve or reject petitions from employees for the reduction of workdays in the positions they hold; conduct meetings between themselves and with the heads of agencies; hire, temporarily and through assignment, the personnel needed to carry out its task. Its Chairperson shall also be empowered to assign and/or make available to JREF all the resources of the GDB that are needed to discharge its obligations under this Chapter III. The task of the JREF and its duration shall conclude once the objective of the act is achieved.
(7) The JREF shall determine the total number of employees to be laid off, pursuant to the provisions of Section 2 of this Act, and in harmony with the need to assure the continuity and quality of government services.
(8) The agencies shall identify and certify the seniority of each of its employees to the JREF within a term not greater than fifteen (15) calendar days after the beginning of Phase II.
In that same term, the agencies shall certify, in writing and individually, the date of seniority as it appears in their records, to their affected employees. In the case of employees who are members of an appropriate unit represented by a labor union, the latter shall also be notified. Said certification shall be notified to the employees, and if the case, to the labor organization, delivered by hand or by certified mail with receipt acknowledgment, to the address that appears in the records of the agencies and advising the employees of their right to state and express, in writing, the basis of their version as to their seniority date. The date of the notification shall be that of its delivery or remittance.
(9) The employee, and if the case, through his/her labor union, shall have a term not greater than thirty (30) calendar days as of the date of notification, to present in writing to the agency, documentary evidence issued by the competent authority or government entity (attesting documentary evidence) which refutes the certified seniority. For this, the form provided for such purposes by the respective agency shall be used, and shall be completed and submitted to the agency with copy of the attesting documentary evidence that refutes the seniority date notified by the agency.
(10) In the event that the affected employee does not refute or does not present within the term herein provided, attesting documentary evidence that supports his/her position, the seniority to be used shall be that which was notified by the agency. Said seniority shall be conclusive for all purposes pertaining to this chapter.
(11) In the event that the affected employee presents, within the term herein provided, attesting documentary evidence that disputes the seniority that has been notified, the agency shall not make a final determination as to the seniority without first granting him/her the opportunity of a hearing.
(12) The agency shall notify the employee of its final determination regarding seniority, as well as the labor union, if such is the case, within a term not greater than thirty (30) calendar days as of the date on which the informal hearing proceedings established in clause (11) of this subsection are concluded, advising him/oher of the right to request a review of said determination pursuant to the provisions for such purposes in clauses (13) and (14) of this subsection. Such notice shall be served on employees, and if such is the case, on the labor union, delivered by hand or by certified mail with acknowledgment of receipt to the address that appears in the records of the agencies. The date of notice shall be the date of delivery or remittance. Nevertheless, the filing of the review recourse shall not stay the layoffs; Provided, however, That in the case that the employee should prevail, he/she shall be reinstated in his/her position, effective on the date of layoff.
(13) The affected employee may request the review by CASARH of the final determination made by the agency, solely as to his/her seniority, pursuant to the provisions of § 1468m of this title, and its regulations.
(14) Those employees who are members of an appropriate unit, whether affiliated or not to a labor union, may review the final determination of the agency, solely as to his/her seniority, by means of a petition presented to such effect to the arbitrators of the Commission created pursuant to §§ 1451 et seq. of this title, in a term not greater than thirty (30) calendar days as of the receipt of the notification from the agency.
(15) The agency shall notify the layoffs at least thirty (30) calendar days prior to its effective date by means of a written communication directed to the employee, and if the case, to the labor union, indicating the effective date thereof. The notification shall be executed in accordance to clause (12) of this subsection.
(16) The layoffs to be implemented under this Phase II shall be in a staggered manner, starting on July 1, 2009, and during Fiscal Year 2009-2010. The JREF shall establish the order in which the layoffs shall be implemented and when determining said order, it shall take into account the necessary measures to ensure that the affected agencies shall continue to operate properly after the layoffs.
(17) The fact that an affected employee has presented, on a date prior to the effective date of this act, a complaint, claim or contest questioning his/her classification shall not be an obstacle for his/her layoff by using said objected or contested classification. However, if the complaint, claim or contest is resolved favorably for the employee and thus, there is a change in classification to one in which essential functions are performed in accordance with the provisions of § 8797 of this title, the agency shall render the layoff ineffective retroactive to the date of the same.
History —Mar. 9, 2009, No. 7, § 37.04; July 10, 2009, No. 37, § 41.