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WEST VIRGINIA ADMINISTRATIVE RULE
DIVISION OF PERSONNEL
Chapter 29-6-10
Series I
2005 amended
Subject: Administrative Rule of the West Virginia Division of Personnel
Section 1. General [Top]
1.1. Scope - This rule implements the provisions set forth in W.Va.
Code §29-6-1 et seq. regarding classification plans, pay plans, open
competitive examinations, promotions, layoff and recall, appointments,
dismissals, demotions and other matters consistent with W.Va. Code §29-6-1 et
seq.
1.2. Authority - This rule is issued under the authority of W.Va.
Code, §29-6-10.
1.3. Filing Date - June 3, 2005.
1.4. Effective Date - July 1, 2005.
Section 2. Preamble. The general purpose of the Division of Personnel is to
attract to the service of this State personnel of the highest ability and
integrity by the establishment of a system of personnel administration based
on merit principles and scientific methods governing the appointment,
promotion, transfer, layoff, removal, discipline, classification,
compensation, and welfare of its employees, and other incidents of state
employment. All appointments and promotions to positions in the classified
service shall be made solely on the basis of merit and fitness and no person
shall be in any unlawful way favored or discriminated against with respect to
any incident of state employment because of his or her political or religious
opinions or affiliations or race, gender, age, disability, or national origin.
All employment positions not in the classified service, with the exception of
the State College System of West Virginia and the University System of West
Virginia, are included in a classification plan known as classified-exempt
service.
Section 3. Definitions [Top]
3.1. Accrue: To increase or accumulate periodically or by increment.
3.2. Accrual Rate: The grouping by the cumulative years of eligible
employment which is used to determine the rate of accrual of annual leave
benefits.
3.3. Administrator: Any person who fills a statutorily created
position within or related to an agency or board (other than a board member)
and who is designated by statute as the commissioner, deputy commissioner,
assistant commissioner, director, chancellor, chief, executive director,
executive secretary, superintendent, deputy superintendent or other
administrative title, however designated.
3.4. Agency: Any administrative department of state government ,
including any authority, board, bureau, commission, committee, council,
division, section, office, or any county health department.
3.5. Allocation: The assignment of a position to a class by the
Director of Personnel on the basis of the duties performed and
responsibilities assumed.
3.6. Annual Leave: An earned employee benefit of paid time off from
work with prior approval of the appointing authority or designee.
3.7. Appeal: The complaint to the State Personnel Board to correct or
reverse an alleged injustice done or error committed.
3.8. Appointing Authority: The executive or administrative head of an
agency who is authorized by statute to appoint employees in the classified or
classified-exempt service. By written notification to the Director of
Personnel, the appointing authority may delegate specific powers authorized by
this rule to persons who satisfy the definition of employee as established in
this rule.
3.9. Appointment: The act of hiring an applicant for employment.
3.10. Assembled Examination: An examination which, due to the testing
process used, necessitates that applicants come to a testing location.
3.11. Availability: The indication, by an eligible, of the employment
location and conditions under which employment would be accepted including,
but not limited to, salary and starting date of employment.
3.12. Board: The State Personnel Board as provided for in W.Va. Code
§29-6-7 whose members are appointed by the Governor with the advice and
consent of the Senate.
3.13. Carry Forward Days: The maximum number of annual leave days
which can be accredited for use as of the first day of January based on an
employee's length of service category.
3.14. Certification: The official list of eligibles given to an
appointing authority for filling vacancies.
3.15. Class or Class of Positions: One or more positions sufficiently
similar in duties, training, experience and responsibilities, as determined by
specifications, that the same title, the same qualifications, and the same
schedule of compensation and benefits may be equitably applied to each
position in the class.
3.16. Classification Action: The actions of allocation, reallocation,
classification, and reclassification.
3.17. Classification Plan: The plan by which positions in the
classified service and classified-exempt service have been allocated by class.
3.18. Class Specification: The official description of a class of
position which describes the nature of work, provides examples of work
performed, and knowledges, skills, and abilities, and states the generally
accepted minimum qualifications required for employment.
3.19. Classified Employee: An employee who occupies a position
allocated to a class in the classified service.
3.20. Classified-Exempt Service: As established by statute, those
positions which satisfy the definitions for "class" and "classify" but which
are not covered under the Division of Personnel merit system standards or by
the State College System of West Virginia or the University System of West
Virginia.
3.21. Classified Service: Those positions which satisfy the
definitions for "class" and "classify" and which are covered under the
Division of Personnel merit system standards.
3.22. Classify: The process of ascertaining, analyzing, and evaluating
the duties and responsibilities of positions to determine the number and kind
of classes existing in the service and to group the positions in classes.
3.23. Compensation Plan: The official schedule of pay rates, the range
assigned to each class of positions and the salary regulations used in pay
administration in the classified service.
3.24. Daily Rate: The usual rate of pay for the pay period divided by
the total number of workdays plus paid holidays in the pay period for an
employee whose position is assigned to a monthly pay rate.
3.25. Date of Separation: Last day of work of employees separating
due to dismissal, voluntary resignation, voluntary retirement, layoff, or
sudden death; the date of death of employees who die while on paid or unpaid
leave; or the date of notification by employees resigning or retiring due to
disability as verified by a physician.
3.26. Day: Unless otherwise specified, the use of "day" means a
calendar day.
3.27. Demotion: A change in the status of an employee from a position
in one class to a position in another class of lower rank as measured by
salary range, minimum qualifications, or duties, or a reduction in an
employee's pay to a lower rate in the pay range assigned to the class.
3.28. Director: The Director of Personnel, as provided in W.Va. Code
§29-6-6 and §29-6-9, who serves as the executive head of the Division of
Personnel, or his or her designee.
3.29. Disability: A physical or mental impairment which substantially
limits one or more of a person's major life activities, a record of a physical
or mental impairment which substantially limits one or more of a person's
major life activities, or regarded as a physical or mental impairment which
substantially limits one or more of a person's major life activities.
3.30. Discretionary: Open to individual choice or judgement.
3.31. Dismissal: The separation from employment for good cause of an
employee by an appointing authority.
3.32. Division: The Division of Personnel.
3.33. Division of Personnel: The division of the Department of
Administration responsible for the system of personnel administration for the
classified and classified-exempt service.
3.34. Effective Date: The established date an action takes place .
3.35. Eligible: An applicant accepted for a Division of Personnel
examination who receives a final passing score and whose name is listed on the
register established for the class of position.
3.36. Emergency Appointment: An appointment, for not more than thirty
(30) calendar days in any twelve (12) month period, necessitated by a state of
emergency.
3.37. Employee: Any person who lawfully occupies a position in an
agency and who is paid a wage or salary and who has not severed the employee-
employer relationship.
3.38. Exempt Service: All positions specifically exempted from the
classified service by statute or statutory authority.
3.39. Existing Employee: Any person employed by an agency for
permanent employment in a classified or classified-exempt position.
3.40. Fitness: suitability to perform all essential duties of a
position by virtue of meeting the established minimum qualifications and being
otherwise qualified.
3.41. Full-time Employee: Any employee who works the full work
schedule established for the agency.
3.42. Grievance: Any claim by one or more affected classified or state
classified-exempt employees alleging a violation, a misapplication or a
misinterpretation of the statutes, policies, rules, regulations or written
agreements under which the employees work, filed in accordance with the
provisions of W.Va. Code §29-6A-1 et seq.
3.43. Hourly Rate: The total annual salary (excluding annual
increment) divided by 2,080 hours for full-time permanent and temporary
salaried employees or divided by the actual number of hours worked annually
for part-time permanent and temporary salaried employees. For hourly
employees, the hourly rate is the actual rate established by the State
Personnel Board.
3.44. Immediate Family: Consists of the parents, children, siblings,
spouse, parents-in-law, children-in-law, grandparents, grandchildren, step-
parents, step-siblings, stepchildren, and individuals in a legal guardianship
relationship.
3.45. Incapacity: An illness of or injury to an employee which
temporarily prevents him or her from performing the essential duties of his or
her position.
3.46. Incumbent: Any employee occupying a position.
3.47. Intra-Agency Transfer: Any transfer within a single agency.
3.48. Inter-Agency Transfer: Any transfer from one agency to another.
3.49. Intermittent Appointment: Any appointment from a register to a
position which requires performance on an irregular or "as needed" basis for
no more than 945 hours in a twelve month period.
3.50. Irregular Part-time Employment: Any appointment from a register
for employment in a position for which work hours vary from pay period to pay
period and are less than the full-time work schedule established by the
agency.
3.51. Job Abandonment: The absence from work under such conditions as
to be synonymous with resignation.
3.52. Last Day of Pay: The calendar date and hour an employee's pay
ceases.
3.53. Last Day of Work: The last calendar date and hour an employee is
physically on the job.
3.54. Lateral Class Change: The movement of any employee from one
class to another class in the same pay grade.
3.55. Layoff: A reduction in the number of employees caused by a
reduced work load, curtailment of funds or reorganization.
3.56. Limited Term Employment: Employment of a limited duration
including, but not limited to, 90-day exempt, 30-day emergency, temporary,
intermittent and student appointments and seasonal employment with a state
forest, park or recreational area.
3.57. Local Office: Any unit of an agency which provides services to a
specified section of the State and has employees reporting to locations other
than the state office headquarters.
3.58. Minimum Qualifications: The least experience and/or training
required by the State Personnel Board for employment in a class of position
and admission to an examination for that class of position.
3.59. Month: Any of the twelve parts into which the calendar year is
divided.
3.60. Ninety-Day Exempt Appointment: Employment for no more than
ninety (90) working days in a year.
3.61. Open Competitive Examination: An examination which permits the
competition of all persons who meet the publicly announced minimum
requirements for a class of position.
3.62. Original Appointment: Initial employment of an individual into
the classified service as a result of selection from a certification of names
from a register established by open competitive examination or from a
preference register.
3.63. Part-time Employee: Any person who works less than the full-time
work schedule established for an agency.
3.64. Part-time Professional: Any classified-exempt employee engaged
in professional services without administrative duties and who works no more
than half the agency's full-time work schedule.
3.65. Pay Differential: A type of salary adjustment specifically
approved by the Board to address circumstances such as class-wide recruitment
and/or retention problems, regionally specific geographic pay disparities,
apprenticeship program requirements, shift differentials for specified work
periods, and temporary upgrade programs.
3.66. Pay Increment: The percentage increase amounts established by
the State Personnel Board to implement pay practices including hiring rates,
salary advancements, and pay on promotion..
3.67. Pay Rate: One of the monthly or hourly rates within the pay
range established by the State Personnel Board for each class included in the
approved pay plan; the usual rate of pay.
3.68. Per Diem: A daily allowance. [Top]
3.69. Permanent Employee: Any employee who was hired from a register
and who has completed the probationary period prescribed by the State
Personnel Board for the job class.
3.70. Physician/practitioner: A person licensed under the laws of a
state to practice medicine or a medical practitioner approved by the Public
Employees Insurance Agency.
3.71. Policymaking Positions: A position in which the person occupying
it: a) acts as an advisor to or formulates plans for the implementation of
broad goals for the executive or administrative head of the agency; b) is in
charge of a major administrative component of the agency; and c) reports
directly and is directly accountable to the administrative or executive head
of the agency.
3.72. Position: An authorized and identified group of duties and
responsibilities assigned by the proper authority requiring the full-time or
part-time employment of at least one person.
3.73. Position Description: The document prepared by the position
supervisor or the employing agency and approved by the appointing authority,
which describes the officially assigned duties, responsibilities, supervisory
relationships and other pertinent information relative to a position. This
document is the basic source of official information in position allocation.
Position description forms shall be prescribed by the Director.
3.74. Postmarked: An official United States postal marking showing the
mailing date.
3.75. Probationary Period: A specified trial work period prescribed by
the State Personnel Board designed to test the fitness of an employee selected
from a competitive list of eligibles for the position for which an original
appointment has been received.
3.76. Promotion: A change in the status of an employee from a position
in one class to a vacant position in another class of higher rank as measured
by salary range and increased level of duties and/or responsibilities.
3.77. Provisional Appointment: The hiring of an employee to fill a
position pending the administration of an open competitive examination and the
establishment of a register.
3.78. Reallocation: Reassignment by the Director of Personnel of a
position from one class to a different class on the basis of a significant
change in the kind or level of duties and responsibilities assigned to the
position.
3.79. Reclassification: The revision by the State Personnel Board of
the specifications of a class or class series which results in a redefinition
of the nature of the work performed and a reassignment of positions based on
the new definition and may include a change in the title, pay grade, or
minimum qualifications for the classes involved.
3.80. Register: An official list of currently available eligibles for
a job class ranked in the order of the final score as a result of the Division
of Personnel examination for the class of position for competitive appointment
or in seniority order for preference hiring of laid-off permanent classified
employees.
3.81. Regular Part-time Employment: Employment in a position for which
work hours are the same from pay period to pay period but are less than the
full-time work schedule established for the agency.
3.82. Reinstatement: A type of re-employment of a former permanent
classified employee.
3.83. Resignation: Voluntary separation from employment, including job
abandonment, by an employee.
3.84. Salary Adjustment: A salary change resulting from a revision of
the pay plan, the reassignment of a class to a different pay grade, a Board
approved pay differential, a temporary classification upgrade, a general wage
increase mandated by the Legislature or the Governor, or the correction of
payroll errors.
3.85. Salary Advancement: A discretionary advancement in salary
granted in recognition of the quality of job performance.
3.86. Salary Range: The approved monthly and annual salary for a class
which includes the minimum, maximum, and intervening steps.
3.87. Salary Schedule: The official schedule of salaries approved by
the Governor consisting of multiple pay grades with minimum and maximum rates
of pay for each grade.
3.88. Service: Total eligible employment time which may be used for
determining the rate of accrual of annual leave.
3.89. Sick Leave: An earned employee benefit of paid time off as
specified by this rule for illnesses, injuries and other circumstances.
3.90. Student Employee: An employee working for a limited period of
time under the current Student Exempt Policy approved by the Board.
3.91. Suspension: Disciplinary action taken by an agency to
temporarily relieve an employee of his or her duties and place the employee on
leave without pay.
3.92. Temporary Appointment: The hiring of an employee from a register
for a period not to exceed 6 months.
3.93. Terminal Annual Leave: The balance of an employee's accrued and
unused annual leave as of that employee's last day of work.
3.94. Termination: Separation from employment by the appointing
authority as a result of the expiration of a limited term appointment or at
the end of the period of need during limited term employment.
3.95. Title Change: The revision in the title of a class.
3.96. Transfer: The movement of an employee to a different subdivision
or geographic location of the same or a different agency.
3.97. Unassembled Examination: An examination procedure which does not
require persons being examined to gather at a test site and which does not
include a written examination.
3.98. Vacancy: An unfilled budgetary position in the classified service
to be filled by original appointment, promotion, demotion, lateral class
change, transfer, or reinstatement.
3.99. Veteran: Any person who fulfills the requirements of one of the
following conditions:
a. Served on active duty anytime between December 7, 1941, and July 1, 1955.
However, any person who was a Reservist called to active duty between February
1, 1955 and October 14, 1976, must meet subdivision b, of this subsection;
b. Served on active duty anytime between July 2, 1955 and October 14, 1976 or
a Reservist called to active duty between February 1, 1955 and October 14,
1976 and who served for more than 180 days;
c. Entered on active duty between October 15, 1976 and September 7, 1980 or a
Reservist who entered on active duty between October 15, 1976 and October 13,
1982 and received a Campaign Badge or Expeditionary Medal or is a disabled
veteran; or
d. Enlisted in the Armed Forces after September 7, 1980 or entered active
duty other than by enlistment on or after October 14, 1982 and
1. completed 24 months of continuous active duty or the full period
called or ordered to active duty, or was discharged under 10 U.S.C.
1171, or for hardship under 10 U.S.C. 1173 and received or was entitled
to receive a campaign badge or expeditionary medal; or
2. is a disabled veteran.
3.100. Veterans' Preference Points: An additional 5 points added to
the final passing score on an open competitive examination of any veteran as
defined by this rule. An additional 5 points are available to those veterans
who also have a current and compensable service connected disability or who
have received a Purple Heart award. To receive veterans' preference points,
separation from active duty must have been under honorable conditions. This
includes honorable and general discharges. A clemency discharge does not meet
the requirement of this subsection. Active duty for training in the military
reserve and national guard programs is not considered active duty for purposes
of veteran preference. Veterans' preference points are not added to final
passing scores on promotional examinations.
3.101. Work Schedule: Designation of the periods of time during which
work is performed.
3.102. Workweek: The time period of seven consecutive days, beginning
and ending at specified days and times, during which work is performed and
work hours reported for compliance with applicable federal and state labor
laws.
3.103. Year: Twelve (12) consecutive month period, unless otherwise
specified.
Section 4. Classification Plans [Top]
4.1. Preparation of Plans - The Board, after conferring with the
appointing authorities concerned, shall formally adopt and make effective a
comprehensive classification plan for all positions in the classified and the
classified-exempt service. The plan shall be based on an investigation and
analysis of the duties and responsibilities of each position, and each
position shall be allocated by the Director of Personnel, after consultation
with the appointing authority concerned, to its proper class in the
classification plan. When complete, the classification plan shall include for
each class of positions an appropriate title, a description of the duties and
responsibilities, and the minimum requirements of training, experience, and
other qualifications.
4.2. Revision of Plans - The Board may abolish or change existing
classes of positions, or may add new classes in the same manner as the
classification plans were originally adopted.
4.3. Incumbents of Reallocated Positions - When a position is
reallocated to a different class, the Board shall not consider the incumbent
eligible to continue in the position unless he or she would have been eligible
for original appointment, promotion, transfer, or demotion, to a position of
the new class while serving in the position as previously allocated. If
ineligible to continue in the position, he or she may be transferred,
promoted, or demoted by appropriate action in accordance with the provision of
this rule as the Director may determine to be applicable. In any case in
which the incumbent is ineligible to continue in the position, and he or she
is not transferred, promoted or demoted, the provisions of this rule regarding
separations applies.
4.4. Class Specifications - The Director shall consider the class
specification in allocating positions and shall interpret it as follows:
(a) Class specifications are descriptive only and are not restrictive.
The use of a particular expression of duties, qualifications, requirements, or
other attributes shall not be held to exclude others not mentioned.
(b) In determining the class to which any position shall be allocated,
the specifications for each class shall be considered as a whole. The
Director shall give consideration to the general duties, specific tasks,
responsibilities required, qualifications and relationships to other classes
as affording together a picture of the positions that the class intended to
include.
(c) A class specification is a general description of the kinds of work
characteristics of positions properly allocated to that class and not as
prescribing what the duties of any position are nor as limiting the expressed
or implied authority of the appointing authority to prescribe or alter the
duties of any position.
(d) The fact that all of the actual tasks performed by the incumbent of
a position do not appear in the specifications of a class to which the
position has been allocated does not mean that the position is necessarily
excluded from the class, nor shall any one example of a typical task taken
without relation to the other parts of the specification be construed as
determining that a position should be allocated to the class.
(e) The statement of minimum qualifications expresses the minimum
background in terms of education, experience, and/or licensure generally
necessary for a new employee to successfully perform the required duties of
positions in the job class.
(f) The Director shall consider class specifications as a primary
source of authority for the content of examinations for the class and for the
evaluation of qualifications of applicants for examinations. Supplemental job
information, obtained through job analysis, may be used as a further basis for
examinations and minimum qualification standards. Provisions for the
substitution of related experience, education, or other qualifications for
specific education and/or experience requirements may be made in specific
examination announcements for particular positions, even though these
provisions are not part of the class specification. In cases of recruitment
difficulties or unique positions requirements, the Director, in cooperation
with the appointing authority, may use his or her discretion in interpreting
minimum experience, training and/or licensure requirements and in accepting
equivalent experience, training and/or licensure.
4.5. Position Descriptions
(a) Position description forms shall be prescribed by the Director.
(b) The position description is an official record of the duties and
responsibilities assigned to a position and shall be used by the Division of
Personnel to allocate the position to its proper class.
(c) The position description shall include a current description of
assigned duties and responsibilities and other pertinent information
concerning a position. In contrast to general definitions of the level of
work and responsibilities, the position description shall include specific
duties and responsibilities assigned to a position by the appointing
authority.
(d) The position description shall not be construed in any way to limit
the expressed or implied authority of the appointing authority to prescribe or
alter the duties of any position.
(e) Position descriptions shall be kept current by the appointing
authority for each position under his or her jurisdiction. When the
appointing authority significantly alters the duties and responsibilities of a
position, the appointing authority shall prepare and forward a revised
position description to the Director.
(f) If an appointing authority fails to notify the Director of
significant alterations in the duties and responsibilities of a position, the
incumbent in the position may file with the Director a written request for a
review of his or her position.
4.6. Reclassification
(a) Upon its own initiative, or at the request of an appointing
authority, the Board may reclassify positions by the creation or abolishment
of classes, or the revision of the definition of the work of the classes
brought about by changing work methods, new technology or reorganization.
(b) For each position affected the appointing authority shall provide a
current description of the duties and responsibilities assigned.
(c) The employee in the position at the time of a reclassification is
entitled to continue to serve in that position, provided that the employee
meets any licensure or certification requirements .
(d) Any incumbent in a position reclassified under this subdivision has
the right to a reconsideration of the action by the Director. After filing
with the Director a written request for reconsideration in a manner and form
prescribed by the Director, the employee shall be given a reasonable
opportunity to be heard by the Director. The interested appointing authority
shall be given the same opportunity to be heard.
4.7. Position Reallocation - Whenever substantial changes occur in the
duties and responsibilities permanently assigned to a position, the Director
shall reallocate the position to its proper class. The incumbent or the
appointing authority may seek a reconsideration of the allocation action by
submitting a written request to the Director within ten (10) calendar days of
the effective date of the action. The Director shall not reallocate a position
based on temporary changes in the duties and responsibilities assigned to the
position.
4.8. Temporary Classification Upgrade. With the approval of the
Director, an appointing authority may temporarily upgrade the classification
of an employee temporarily performing the duties of a position in a higher pay
grade due to a separation or an extended leave of absence, for a short-term
project, or in an emergency situation. A temporary classification upgrade
shall be within the same service, classified or classified-exempt, and, except
for classes allocated to the approved hourly pay schedule, shall be for a
continuous period of no less than 30 days and no more than six months. The
Director, at his or her discretion, may extend the period of a temporary
classification upgrade period by increments of three months or less. The
Board shall establish salary, qualification, and administrative standards for
implementation of this subsection.
4.9. Classification Plan for the Classified-Exempt Service
(a) Upon the recommendation of the Director, the Board shall adopt
and make effective a classification plan for the classified-exempt service.
This plan shall be developed and maintained so that all positions sufficiently
similar with respect to type, difficulty, and responsibility of work are
included in the same class. The plan shall be based on an analysis of the
duties and responsibilities of each position, and each position shall be
allocated by the Director of Personnel to its proper class in the plan.
(b) Each appointing authority shall report to the Director the
establishment of new positions or any material changes in the duties and
responsibilities of existing positions in the classified-exempt service. The
Director may at any time require the appointing authority to submit a
statement of the duties and responsibilities of incumbents of any position in
the classified-exempt service.
(c) The appointing authority shall, on the appropriate specified
forms, report to the Director any changes in class title, pay, and status of
any employee in the classified-exempt service.
(d) If an appointing authority wishes to request names of
applicants for consideration for employment in the classified-exempt service,
he or she shall make the request on appropriate forms specified by the
Director. In no event shall a classified service vacancy be filled from a
certification prepared for a classified-exempt service vacancy.
(e) The employee affected by the allocation of a position to a
class may file with the Director a written request for reconsideration and
shall be given a reasonable opportunity to be heard by the Director. The
appointing authority shall be given like opportunity to be heard. The
employee shall submit the request for reconsideration of a classification
action in writing within ten (10) calendar days of the effective date of the
classification action.
Section 5. Compensation Plan and Salary Administration [Top]
Pursuant to the provisions of the W.Va. Code §29-6-10(2), the following
salary regulations in this section apply to classified employees .
5.1. Purpose and Intent - To attract qualified employees and retain them
in the classified service, the Board shall endeavor to provide through the pay
plan adequate compensation based on the principles of equal pay for equal work
among the various agencies and on comparability to pay rates established in
other public and private agencies and businesses.
5.2. Preparation of the Plan - After consultation with the appointing
authorities and State fiscal officers and after a public hearing, the Director
and the Board shall prepare and submit to the Governor for his or her approval
any revision of the pay plan. The pay plan shall include salary schedules
containing multiple pay grades with minimum and maximum rates of pay for each
grade and a plan of implementation. The pay plan shall also include a market
rate for each grade which shall be established by the Director to approximate
the market midpoint pay level among southeastern state governments selected by
the Director. The Board may make periodic amendments to the pay plan in the
same manner.
5.3. Adoption of the Plan - The plan becomes effective only after it has
been approved by the Governor. The approved pay plan constitutes the official
schedule of salaries for the classified service.
5.4. Implementation of Plan
(a) Assignment of Classes - The Board shall assign each class of
positions to an appropriate pay grade consistent with the duties outlined in
the class specification. No salary shall be approved by the Director of
Personnel unless it conforms to one of the pay rates in the pay grade assigned
to the employee's class of position.
(b) Entry Salary - The entry salary for any employee shall be at the
minimum salary for the class including any applicable Board approved pay
differential. However, an individual possessing pertinent training or
experience above the minimum required for the class, as determined by the
Director, may be appointed at a pay rate above the minimum, up to the market
rate of the salary range, unless otherwise prescribed by the Board. For each
pay increment above the minimum, the individual must have in excess of the
minimum requirements at least six months of pertinent experience or equivalent
pertinent training. The Director may authorize appointment at a rate above
the market rate where the appointing authority can substantiate severe or
unusual recruiting difficulties for the job class.
(c) Standard Rates of Pay - The compensation plan applies to all classes
of positions in the classified service unless specifically excepted by statute
or statutory authority. It provides standard pay rates for full-time
employees for regularly established working hours in all offices and
departments. The salary or wage paid is determined by the pay grade to which
the class of the position has been allocated. All employees, including those
serving in positions on a part-time basis, shall be paid in proportion to the
actual time worked.
(d) Additional Pay - Except for authorized overtime, Board approved pay
differentials, or other statutorily required and/or authorized payments,
appointing authorities shall make no pay additional to the regular salary to
any employee. The rates as provided do not include reimbursements for actual
and necessary expenses incurred incident to employment such as travel expense.
Additional duties imposed or volunteered are not an exception to this rule.
(e) Availability of Funds - Before an agency makes salary adjustments
and advancements in accordance with this rule, its fiscal officer shall
certify that funds for this purpose are available.
(f) Salary Adjustments
1. New Plan
a. Upon adoption of a new pay plan the Board shall require
and may approve or modify a plan of application which assures as nearly as
possible that all incumbents in the classified service receive equal treatment
in terms of pay.
b. An incumbent whose salary falls below the minimum rate
of the new range shall have his or her salary adjusted to the new minimum.
c. An incumbent whose salary falls above the maximum rate
of the new range shall maintain his or her current salary and is ineligible
for salary advancements.
2. Pay on Reclassification
a. Higher minimum
1. When a class is reassigned by the Board to a
salary range having a higher minimum, the salaries of those incumbents below
the new minimum shall be adjusted to the new minimum. 2.
Where the salary of the incumbent coincides with a pay rate in the new range,
the salary shall remain unchanged.
b. Lower Minimum
1. When a class is reassigned by the Board to a
salary range having a lower minimum, the salaries of those incumbents which
are within the new range shall remain unchanged.
2. Where the salary of the incumbent is above the
maximum rate of the new range, the salary shall remain unchanged and the
incumbent is ineligible for salary advancements.
c. The Board, by formal action, may approve or modify a
plan of application on reclassification other than those described in
subparagraphs 5.4.(f)2.a. and 5.4.(f)2.b. of this rule based on documented
recruitment and/or retention difficulties or consideration of equal treatment
in terms of pay for reclassified employees.
3. Pay on Position Reallocation - When a position is reallocated
to a different class, the salary of the incumbent shall be adjusted in
accordance with salary regulations for promotion, demotion and lateral class
change.
4. Pay Differentials - The Board, by formal action, may approve
the establishment of pay differentials to address circumstances such as class-
wide recruitment and retention problems, regionally specific geographic pay
disparities,, shift differentials for specified work periods, and temporary
upgrade programs. In all cases, pay differentials shall address circumstances
which apply to reasonably defined groups of employees (i.e. by job class, by
participation in a specific program, by regional work location, etc.), not
individual employees.
5. Separation from Employment - Salary adjustments are not given
to employees separating from State employment whose last day of work occurs
prior to the effective date of a new pay plan and who are continued on the
payroll beyond that date for payment of terminal annual leave.
5.5 Pay on Promotion - When an employee is promoted, the employee's pay
shall be adjusted as follows:
(a) Minimum Increase - An employee whose salary is at the minimum rate
for the pay grade of the current class shall receive an increase to the
minimum rate of the pay grade for the job class to which the employee is being
promoted. An employee whose salary is within the range of the pay grade for
the current class shall receive an increase of one pay increment, as
established by the State Personnel Board, per pay grade advanced to a maximum
of 3 pay grades, or an increase to the minimum rate of the pay grade for the
job class to which the employee is being promoted, whichever is greater. In no
case shall an employee receive an increase which causes the employee's pay to
exceed the maximum for the pay grade to which he or she is being promoted.
(b) Exceptions
1. If the salary of an employee being promoted is at or above the
maximum rate of the pay grade to which the employee is being promoted, or, if
his or her salary is within one pay increment, as established by the State
Personnel Board, of the maximum rate of the pay grade to which he or she is
being promoted, the employee shall receive an increase of one pay increment
with the promotion.
2. If an employee has been demoted or reallocated to a class at a
lower pay grade with no reduction in pay and is promoted or reallocated within
the next twenty-four months within the same agency, no consideration shall be
given to the pay grade(s) reduced in the demotion or reallocation when
calculating pay on promotion as provided in subdivisions 5.5(a) and (b) of
this rule.
(c) Additional Increase - The appointing authority may grant additional
incremental increases, as established by the State Personnel Board, to an
employee being promoted if the employee has sufficient qualifications in
excess of the minimum required for the new class. The employee must possess
at least six months of pertinent experience or an equivalent amount of
pertinent training for each additional incremental increase granted. In no
case shall the additional incremental increase cause the employee's pay to
exceed the maximum for the pay grade to which he or she is being promoted.
5.6 Pay on Demotion
(a) The appointing authority has the discretion to reduce or not reduce
the pay rate of any employee who is demoted if the employee's pay rate is
within the pay range of the job class to which the employee is demoted.
(b) The appointing authority shall reduce the pay rate of an employee
who is demoted if the employee's current pay rate is above the maximum pay
rate for the job class to which the employee is demoted. The reduction may be
to any pay rate within the pay range of the job class to which the employee is
demoted as long as the pay rate does not exceed the maximum pay rate of the
pay range. If the demotion is to a formerly held job class and the employee's
current pay rate is above the maximum pay rate for the job class, the
reduction may be to any pay rate within the pay range of the job class to
which the employee is demoted or to his or her last pay rate in the formerly
held job class, even if the last pay rate is above the maximum pay rate for
the job class.
5.7. Pay on Lateral Class Change - Any employee who receives a lateral
class change shall be paid the same salary received prior to the change except
in cases where the change is to an agency or job class for which the Board has
approved, or the Legislature has authorized, a higher pay range for the pay
grade.
5.8. Pay on Reinstatement - The salary for an employee who is
reinstated shall be at the minimum salary for the class including any
applicable Board approved pay differential. However, an individual possessing
pertinent training or experience above the minimum required for the class, as
determined by the Director, may be appointed at a pay rate above the minimum,
up to the market rate of the salary range, unless otherwise prescribed by the
Board. For each pay increment above the minimum, the individual must have in
excess of the minimum requirements at least six months of pertinent experience
or equivalent pertinent training. The Director may authorize reinstatement at
a rate above the market rate where the appointing authority can substantiate
severe or unusual recruiting difficulties for the job class, or where the
reinstated employee's last salary as a classified employee was above the
market rate.
5.9. Salary Advancements
(a) Basis - All salary advancements shall be based on merit as
evidenced by performance evaluations and other recorded indicators of
performance.
(b) Eligibility - Salary advancements are limited to permanent
employees.
(c) Amount - Salary advancements are limited to a maximum established
and subject to change by the State Personnel Board, and shall not cause the
new salary to exceed the maximum of the pay grade to which the employee's
class is allocated. The State Personnel Board shall establish the maximum for
salary advancements by policy on implementation of the pay plan [i.e. as of
5/1/94, no more than 10% in any 12-month period] as specified in subsection
5.2. of this rule.
(d) Exceptions - An employee with seven years of total state service
who has attained the maximum or above in the range, or for whom a salary
advancement would result in his or her salary exceeding the maximum in the
range for the class is eligible for a salary advancement. The salary
advancement is limited to the difference between two pay increments [i.e. as
of 5/1/94, two pay increments equal 10%] and the total percentage of all other
increases in pay in the immediately preceding twelve month period except
general wage increases mandated by the Legislature.
(e) Effective Dates - Salary advancements for permanent employees are
effective on or after the date on which the employees become eligible for the
salary advancements.
5.10. Annual Increment Increase - The Board, by formal action, may
establish uniform procedures which shall be followed by all State agencies and
spending units for compensating eligible employees of the State and its
spending units for the annual increment increase provided for in W.Va. Code
§5-5-2.
Section 6. Applications and Examinations [Top]
6.1. Character of Examinations
(a) Examinations for appointment to a position in the classified service
shall be conducted on an open competitive basis. Examinations shall be
practical in nature, shall be constructed to reveal the capacity of the
applicant for the particular position for which he or she is competing, and
shall be rated objectively.
(b) Examinations shall, to the extent possible, be developed on the
basis of objective analysis of the job and with the participation of
appropriate job experts in the affected agencies and may include: written
tests, performance tests, ratings of training and experience, oral
examinations, job simulations, or other assessment procedures shown to be
related to the content of the job and/or to be predictive of successful job
performance.
(c) All examination scoring procedures shall be objective. Test weights
shall be established to reflect the relative importance of duties performed in
the job class. Test weighting and scoring procedures shall be applied
consistently to the examinations of all applicants.
6.2. Notice of Examinations
(a) The Director shall give public announcement of all open competitive
examinations at least 15 days in advance of the closing date for receipt of
applications. He or she shall make every reasonable effort to attract
qualified persons to compete in these examinations. Notices of examinations
and other publicity may be restricted to the places where additional eligibles
are needed. Public announcement of examinations shall specify the title and
salary range of the class of position, the duties to be performed, the minimum
qualifications required, the final date on which applications will be
accepted, and all other conditions of competition.
The announcement shall also include any special minimum or substitute position
qualification standards which will be used in evaluating applicants. The
Director shall develop all announced qualifications for examination on the
basis of information contained in class specifications as well as job analysis
information obtained with the participation of appropriate job experts in
affected agencies.
6.3. Filing Applications
(a) All applications shall be made on forms prescribed by the Director
and must be filed with the Division on or prior to the closing date specified
in the announcement or postmarked before midnight of that date. The
applications shall be completed in full and may require the inclusion of
documents verifying pertinent education, training, licensure, eligibility for
veterans' preference points, or any other information which the Director may
consider necessary. All applications shall be signed and sworn to or affirmed
by the applicant. The Director may verify any information provided on or with
an application.
(b) The Director may provide for continuous receipt of applications and
for holding examinations as needed.
6.4. Disqualification of Applicants
(a) The Director may refuse to examine an applicant, or after
examination, may disqualify the applicant or remove his or her name from a
register or certification, or refuse to certify any eligible on a register if:
1. he or she is found to lack any of the preliminary requirements
established for the examination or by statute for the class of position;
2. he or she has a disability and is incapable of performing the
essential functions of positions in the class with or without reasonable
accommodation;
3. he or she has been convicted of an infamous crime or other
crime involving moral turpitude which has a reasonable connection to the
position/class for which he or she is applying;
4. he or she has made a false statement of material fact or has
misrepresented his or her qualifications in his or her application;
5. he or she has previously been dismissed from any public
service for delinquency, misconduct, or other similar cause;
6. he or she has used or attempted to use political pressure or
bribery to secure an advantage in the examination or appointment;
7. he or she has directly or indirectly obtained information
regarding examinations to which he or she was not entitled;
8. he or she has failed to submit his or her application
correctly or within the prescribed time limits;
9. he or she has taken part in the compilation, administration,
or correction of the examination;
10. he or she has taken the same examination less than 60 days
prior to the date of the current examination;
11. at least three former employers state that they would not
re-employ him or her, or otherwise indicate that his or her services as an
employee were unsatisfactory or that he or she is lacking in character and
fitness for the position he or she applied for;
12. the register from which he or she is certified is for a class
for which oral skills are essential and an oral examination was not a part of
the examination process, and at least two agencies have interviewed him or her
and report that he or she is not considered to be suitable for a position in
the class he or she was interviewed for;
13. he or she is not eligible to work in the United States;
14. he or she fails to comply with any other reasonable
requirements established by the Director for the position; or
15. he or she has otherwise violated provisions of this rule.
(b) In order to be admitted to an open competitive examination, an
applicant shall have satisfied all publicly announced minimum qualifications
of the position for which he or she has requested an examination, except that
he or she may be admitted if he or she is qualified in all respects except
for: (1) a deficiency of no more than six months of qualifying training and,
at the time of application, he or she is engaged in educational pursuits that
will qualify him or her; or (2) a deficiency of no more than one month of
qualifying experience and, at the time of application, he or she is employed
in work that will qualify him or her. An applicant admitted to an examination
with deficiencies in minimum qualifications who passes the examination, is not
eligible for employment until the minimum qualifications have been satisfied.
The applicant is responsible for furnishing evidence of subsequently
satisfying the minimum qualifications.
(c) The Director shall notify a disqualified applicant of his or her
disqualification, and shall notify an applicant who is not admitted to an
examination because of failure to meet the preliminary requirements by letter
to his or her last-known address. The Director may permanently disqualify
from examination any applicant disqualified under the provisions of paragraphs
6.4 (a) 3, 4, 5, 6, 7, and 14 of this rule.
(d) Any applicant whose application for examination has been rejected
may request that the Director reconsider his or her qualifications. The
Director shall consider the request if it is submitted in writing and received
not later than fifteen (15) calendar days following the date the rejection
notice was postmarked. The Director may admit an applicant to an examination
pending the outcome of the written request for reconsideration. Admission to
an examination under these circumstances shall not constitute assurance of a
passing grade with respect to any portion of the examination process.
(e) Within thirty (30) calendar days after a properly submitted request
for reconsideration is received, the Director shall report his or her decision
in writing to the applicant. The Director shall determine that uniform rating
or review procedures have been applied. A rating in any part of an
examination shall not be changed unless the Director finds that an error has
been made. Any correction resulting from the reconsideration shall not affect
a certification or appointment that has already been made from a register.
6.5. Conduct of Examinations
(a) Written tests shall be conducted in as many places as are necessary
for the convenience of the applicants, as are practicable for proper
administration , and when found necessary by the Director to administer more
effectively a continuous recruitment program as provided for in subdivision
6.3(b) of this rule. The Director may designate such monitors as may be
necessary to conduct examinations under instructions prescribed by him or her,
and may also arrange for the use of public buildings in which to conduct the
examinations. The Director shall provide for the compensation of monitors and
assistants in accordance with the approved budget for that purpose.
(b) Applicants taking competitive assembled examinations shall present
personal identification which includes a signature or photograph prior to
admission to an examination. Applicants without proper identification shall
not be admitted to examinations.
6.6. Scoring Examinations
(a) The Director shall determine a final score for each applicant's
examination, computed in accordance with the weights for the several parts
established by the Director. Failure in any part of an examination may
disqualify the applicant in the entire examination and may disqualify him or
her from participation in subsequent parts of the examination. All applicants
for the same position shall be accorded uniform and equal treatment in all
phases of the examination procedures.
(b) Any veteran (as defined in Section 3 of this Rule) who claims
veteran's preference and who has made a passing grade in an open competitive
examination shall have five points added to his or her final earned score. An
additional five points shall be added to the augmented earned score of any
veteran with a compensable service-connected disability or who has been
awarded the purple heart. Any person claiming veteran's preference or
disability preference shall submit satisfactory proof of his or her service or
disability to the Director of Personnel. Veterans' preference points are not
added to final passing scores on promotional examinations.
(c) The Director shall utilize appropriate scientific techniques and
procedures in rating the results of examinations and in determining the final
scores of competitors.
6.7. Rating Training and Experience - If training and experience form a
part of the total examination, the Director shall determine a procedure for
the evaluation of the training and experience qualifications of the various
applicants. The formula used in the evaluation may include an appraisal of
the recency and quality as well as quantity of experience and the pertinency
of the training.
6.8. Oral Examinations - When an oral examination forms part of a total
examination for a position, the Director shall appoint one or more oral
examination boards as needed. Any person actively engaged in the work of any
political organization, or any person holding political office, shall not
serve as a member of any of the boards.
6.9. Notice of Examination Results - Each applicant passing all parts
of the examination shall be notified by mail by the Director of his or her
final score as soon as practical after the scoring of the examination has been
completed and the register established. An eligible, upon request and
presentation of proper identification, is entitled to information concerning
his or her relative position on a register. The Director shall notify an
applicant who fails any part of the examination or the total examination.
6.10. Special Examination - The Director may modify examination
procedures to afford reasonable accommodation to otherwise qualified disabled
applicants. The modifications may include changes in the existing testing
procedures or the use of specific evaluations of the applicants' observable
job skills and/or the applicants' record of past performance, experience and
training.
6.11. Correction of Errors - If, within thirty days after receipt of
his or her score notice, an applicant notifies the Director of a manifest
error in the scoring of an examination or other evaluation of the applicant's
qualifications, the Director shall, after verification of the error, promptly
correct that error. The Director shall send formal written notice of the
correction to the applicant. These corrections of errors shall not invalidate
any certifications or appointments made prior to corrections of the errors.
6.12. Examination Records - The Director is responsible for the
maintenance of all records pertinent to the examination program in accordance
with official retention schedules and shall hold the records in confidence as
specified in W.Va. Code §29B-1-1 et seq. and §5A-8-21 and §5A-8-22.
Section 7. Registers [Top]
7.1. Establishment of Registers -
(a) Competitive registers: After each examination, the Director
shall prepare a register of persons with passing grades. The names of these
persons shall be placed on the register in the order of their final ratings
starting with the highest.
(b) Preference registers: After the layoff of permanent
classified employees, the Director shall prepare registers of qualified
permanent classified employees who have been laid off. The names of these
employees shall be arranged on the register in order of seniority.
7.2. Duration of Registers
(a) Competitive Registers: The life of scores on a register shall be
one year from the date of establishment, but this period may be reduced by the
Director. If the Director reduces the life of a register, he or she shall
notify each eligible remaining on the register to this effect by mail to his
or her last-known address.
(b) Preference Registers: A laid off permanent classified employee is
eligible for employment from a preference register for no longer than one year
and the eligibility ceases immediately upon employment in a classified
position.
(c) Notice of Vacancies: It is the duty of the appointing authority to
notify the Director as far in advance as possible of vacancies which may occur
in the agency. The Director is responsible for determining the adequacy of
existing registers and for the establishment and maintenance of appropriate
registers for all positions exclusive of exempt positions.
(d) The Director shall nullify a register for any of the following
reasons:
1. Changes in the minimum qualifications or classification
standards of a class of positions;
2. Abolishment of the class for which the register was
established; or
3. Substantial revision of the examination used to establish the
register.
(e) When a register is declared null and void by the Director, he or she
shall notify the affected persons of the action in writing at their last known
address.
7.3. Removal of Names from Registers
(a) Competitive Registers: The Director may remove the name of an
eligible from a register:
1. for any of the causes stipulated in subdivision 6.4(a) of this
rule;
2. on evidence that the eligible cannot be located by letter to
his or her last known address;
3. on receipt of a statement from the eligible declining an
appointment and stating that he or she no longer desires consideration for an
appointment; or,
4. if he or she declines an offer of a probationary appointment
for the class for which the register was established in a location for which
he or she has declared himself or herself available.
(b) Preference Registers: The Director may remove the name of an
eligible from a preference register:
1. for any of the causes stipulated in subdivision 7.3(a) of this
rule;
2. upon appointment of the eligible to a classified position; or
3. on evidence that the eligible does not meet the applicable
standards of qualifications and fitness for a position.
(c) The Director shall notify the eligible by mail to his or her last-
known address that his or her name has been removed from the register and the
reasons for the removal. All notices of changes of address shall be filed in
writing by eligibles with the Director.
(d) Any person whose name has been removed from a register allegedly for
reasons specified in this rule may appeal to the Board for reconsideration.
The appeal must be filed in writing with the Director within fifteen (15)
calendar days after the date on which notification to the applicant was
postmarked. The appeal shall state the reasons why the applicant should not
be removed from the register.
(e) The Board shall review all relevant information to determine if the
action appealed was taken in accordance with this rule. Within thirty (30)
calendar days after a properly submitted appeal is received, the Director
shall report the Board's decision in writing to the applicant.
7.4.. Reinstatement to Register
(a) A person who has had his or her name withdrawn from a register at
his or her request may have his or her name reinstated on the currently
effective register for the same position class provided that the original
register is still in effect and that his or her examination score is still
valid. His or her rank on the register shall be determined by his or her
final earned examination score.
(b) Reinstatement to a register as provided for in the previous
subdivision is subject to the following conditions:
1. The person petitioning the reinstatement shall make his or her
request to the Director in writing and shall furnish whatever information the
Director may require.
2. No person may be reinstated to a register who does not satisfy
the current minimum qualifications for the position class for which the
register is maintained. The Director may require that he or she pass an
appropriate examination in the case of position classes requiring special
skills,
3. No person may be reinstated to a register from which he or she
has been or may be disqualified under subsections 6.4, 7.3, or 8.2 of this
rule.
Section 8. Certification of Eligibles [Top]
8.1. Request for Certification - If a vacancy occurs in any position in
an agency or if new positions are established and new employees are needed,
requisitions shall be submitted by the appointing authority to the Director
upon a prescribed form. This requisition shall state the number of positions
to be filled in each class, identifying each class title and all other
pertinent information.
8.2. Certification Methods
(a) Upon receipt of a requisition, the Director shall first certify and
submit to the appointing authority the names of available persons from the
appropriate preference register. If no appropriate preference register
exists, the Director shall then certify and submit to the appointing authority
the names of available persons from the appropriate competitive register
established as a result of open competitive examination for the class of
position. The number to be certified and submitted will be governed by this
subdivision. Nothing in this subdivision shall be construed as altering the
exhaustion point of a register as described in subdivision 7.2(a) of this
rule.
1. The Director shall first certify and submit the names of all
available eligibles from the appropriate preference register. If there are no
available qualified eligibles on the appropriate preference register, then the
Director shall certify the top ten names or the names of any persons scoring
at or above the ninetieth percentile on the open competitive examination. The
Director may certify additional names at his or her discretion.
2. If the competitive register established as a result of a
Division of Personnel examination for a specific class of position is
exhausted, the Director may certify names from the register, or registers,
most appropriate. If there is no register which the Director considers
appropriate, then the Director may certify and submit names from a register
established as described in subsection 7.1 of this rule.
3. Appointments may be made from a certification anytime within
six months of the date of the certification. Six months after the date of the
certification, the certification shall be null and void.
(b) If an eligible receives a probationary or permanent appointment, the
appointment constitutes for its duration, a waiver of his or her right to
certification from any other register on which his or her name appears for a
class of position, the salary of which is either equal to or lower than that
salary covered by his or her appointment, unless at the time of the
appointment he or she requests in writing that his or her name be retained for
certification from the register or registers. If a laid-off permanent
classified state employee receives a probationary or permanent appointment to
a classified position, that employee is no longer eligible for appointment
from any preference register.
(c) The name of each employee whose name appears on a register for a
class of position with a higher salary range than the salary range of his or
her present class of position shall be certified and submitted by the Director
and given consideration by the agency for the higher class of position if his
or her name is reached.
(d) If in the exercise of his or her choice provided under subsection
9.2 the appointing authority passes over the name of an eligible on a
competitive register in connection with three separate appointments he or she
has made from the register, written request may be made of the Director that
the name of the eligible be omitted from any subsequent certification of the
same appointing authority from the same competitive register. The name of the
eligible shall thereafter not be certified to the appointing authority from
that register for future vacancies in that class of position, or from
subsequent registers established for that class of position. However, upon
change of the person occupying the position of appointing authority, the
Director shall reinstate the name of that person for certifying purposes and
shall inform the agency of the reinstatement. If, subsequently, the eligible
is interviewed by the agency and rejected once for the same position, his or
her name shall not again be certified for that position to that agency during
the tenure of the then incumbent appointing authority.
(e) An eligible may be considered not available by the Director if he or
she fails to reply to a written inquiry after five days or to
telecommunication within 48 hours in addition to the time required for the
transmission of the inquiry to his or her last-known address and the reply to
the inquiry.
8.3. Selective Certification - Any certification may limit
consideration to only those individuals who possess specific qualifications
determined to be essential for performance of the duties of a specific
position. Selective certification must be approved by the Director.
(a) If a specific position requires special qualifications that are not
common to all positions in that class, the appointing authority may request
that certification be limited to candidates possessing those qualifications.
Eligibles shall have adequate opportunity for special qualification
consideration. The specific criteria for the restriction of certification
shall be based on the duties of the position as verified by job analysis or by
an official position description and written justification.
(b) The Director of Personnel may approve a request for selective
certification by gender if the appointing authority provides written
justification which clearly shows that only persons of the required gender can
perform the duties of the position and the Director has conferred with the
Human Rights Commission.
(c) The Director of Personnel may limit certification to candidates
available to work at the location of the job. The Director of Personnel may
further limit certification geographically when the duties of the position
require rapid response to unscheduled emergencies during off duty hours. The
appointing authority shall provide written justification of any request for
geographic selective certification based on essential duties of the position.
The Director shall establish the boundaries of the acceptable geographic areas
based on the specific location and demands of the job. The appointing
authority shall consider candidates living outside the boundary if they are
willing to relocate to the area.
(d) Except for preference certifications, the Director may determine,
for certain unskilled or semiskilled job classes for which no previous
education, training, or experience is required, that eligibles may be selected
for certification by lot. In those cases, all eligibles shall have equal
opportunity for certification. No rank order shall be established for the
register. Selection for certification by lot will be determined as vacancy
requests are received. Once the certification has been made for a particular
vacancy, a new certification shall not be issued for the same class and
location for sixty days. The employing agency shall offer opportunities for
interviews to candidates in the order in which they appear on the
certification. It is the responsibility of the employing agency to insure, to
the extent practicable, that appointments from the certifications are made
based on job-related merit and fitness.
8.4. Corrections of Errors
(a) In the event that a name is certified in error and the error is
discovered before one of the named applicants is notified that he or she is
appointed, the Director shall withdraw the erroneous certification and make a
correct certification. If a certification is to fill more than one position,
the Director shall withdraw only that portion of it pertaining to positions
for which applicants have not been notified that they are appointed .
(b) In the event a name is certified in error and the error is
discovered after one of the named applicants is notified that he or she is
appointed but prior to the effective date of the appointment, the Director
shall withdraw the certification and appointment as in subdivision (a) of this
subsection unless:
1. Acceptance of the appointment caused the named applicant to
change his or her place of residence; or,
2. Acceptance of the appointment caused the named applicant to
resign from a position that cannot be regained.
(c) In the event a name is certified in error and the error is
discovered after the effective date of the appointment of one of the named
applicants, the appointment shall continue.
Section 9. Appointments [Top]
9.1. Appointees in Positions Added to the Classified Service
(a) When additional state agencies or parts of state agencies are added
to the classified service by executive order of the Governor with the consent
of the Board and the appointing authority concerned, and when additional
county or municipal agencies are added to the classified service by agreement
between the local government and the Director with the approval of the Board,
a date for the addition shall be fixed by agreement.
(b) All appointments made on and after that date to the positions added
to the classified service shall be made in accordance with this rule.
(c) The Director shall administer qualifying examinations to any person
employed in a position added to the classified service who has been employed
in that position continuously for six months immediately prior to the
addition. If recommended by the appointing authority, the Director may admit
the employee to a qualifying examination regardless of the minimum
qualifications for the class to which his or her position is allocated. The
appointing authority shall appoint each person passing the qualifying
examination for probationary or permanent employment. The qualifying
examinations shall be held within six months after the date of addition of the
position to the classified service. The examinations shall include appropriate
written and performance tests where these tests are included in open
competitive examinations for the class. The appointing authority shall,
within thirty days after the examination, separate from employment any
employee who fails to pass the qualifying examination unless there are no
available eligibles on the register for the class, in which case his or her
employment may be continued but he or she must be separated from employment
within thirty days after certification of available eligibles.
(d) The appointing authority shall, within thirty days of the date of
affiliation, separate from employment any person employed in a position added
to the classified service for less than six months preceding that date of
affiliation unless there are no available eligibles on the register for the
class. If there are no available eligibles, his or her employment may be
continued but he or she must be separated from employment within thirty days
after certification of available eligibles. He or she may be given a
probationary appointment if he or she has passed an open competitive
examination for the class and is eligible for appointment within the
provisions of subsection 9.2 of this rule.
(e) In making the appointments provided for in subdivisions 9.1(c) and
(d) of this rule the appointing authority may count employment in the agency
immediately prior to the appointments as part or all of the probationary
period required under Section 10 of this rule. The appointing authority shall
promptly report to the Director his or her decision for the records.
9.2. Original Appointments [Top]
(a) Appointing authorities shall make all original appointments to
classified positions in accordance with this rule. An appointing authority
shall select for each position first from the eligibles on an appropriate
preference register in accordance with subdivision 12.4 (i) of this rule.
Upon exhaustion of the preference register, the appointing authority shall
select for each position from the top ten names on the register, including any
persons scoring the same as the tenth name, or any persons scoring at or above
the ninetieth percentile on the open competitive examination, as provided by
subsection 8.2 of this rule. The appointing authority may exclude the names
of those eligibles who failed to answer or who declined appointment or of
those eligibles to whom the appointing authority offers an objection in
writing based on subsection 6.4 of this rule and the objection is sustained by
the Director.
(b) In selecting persons from among those certified, the appointing
authority may examine their applications and reports of investigations and may
interview them. Final selection shall be reported in writing by the appointing
authority to the Director.
(c) If the eligible selected declines the appointment, the appointing
authority shall transmit evidence of declination and other data to the
Director for the permanent record. The Director may consider an eligible as
having declined appointment if the eligible fails to reply after five days in
addition to the time allowed for transmission of the letter and return of
reply, or 48 hours, if notified by telegram. If an eligible accepts an
appointment but fails to present himself or herself for duty at the time and
place specified without giving reasons for the delay satisfactory to the
appointing authority and the Director, he or she shall be considered to have
declined the appointment.
9.3. Provisional Appointments [Top]
(a) If there are urgent reasons for filling a position and there is no
appropriate preference register and there are fewer than three available
eligibles on the competitive register established as a result of an
examination for the position, and no other appropriate register exists, the
appointing authority may submit to the Division of Personnel the name of a
person to fill the position pending examination and establishment of a
register. If that person's qualifications have been certified by the Director
as meeting the minimum qualifications as to training and experience for the
position, that person may be provisionally appointed to fill the existing
vacancy until an appropriate register is established and appointment made from
the register. The position must be classified and minimum qualifications
established for the position in accordance with this rule before provisional
appointments may be made. No provisional appointment shall be continued for
more than thirty days after an appropriate register has been established for
the class of position and in no event for more than 6 months from the date of
appointment, nor shall successive provisional appointments of the same person
be permitted, nor shall a position be filled by repeated provisional
appointments.
(b) Time spent on a leave of absence without pay shall not extend the
period of a provisional appointment.
9.4. Intermittent Appointments [Top]
(a) The Director shall prepare lists of names of persons who have
successfully passed an examination for intermittent positions. The lists
shall consist of the names of the successful candidates arranged in the order
of final scores on the examination. Appointing authorities shall make their
selection for each position from the ten highest available names on the list
or from the names of any persons scoring at or above the ninetieth percentile.
Once a person has received an intermittent appointment in accordance with this
subdivision he or she may be given successive intermittent appointments
without regard to standing on the list.
(b) In no case shall intermittent employment of an individual continue
for more than 945 hours worked and/or hours of paid sick and/or annual leave
in any twelve-month period beginning with the date of the original
intermittent appointment, nor shall an intermittent appointment be preceded or
followed by a temporary appointment or any other limited term employment
within the twelve-month period.
9.5. Temporary Appointments [Top]
(a) If an employee is needed for a temporary period, the Director shall
make a certification of the names of those eligibles who have indicated a
willingness to accept temporary employment in the order of their places on an
appropriate competitive register. The Director shall make the certification
in the manner prescribed in Section 8 of this rule. Appointing authorities
shall make temporary appointments in the same manner as prescribed in this
rule for probationary appointments.
(b) The duration of a temporary appointment shall be limited to the
period of the need and in no event shall a temporary appointment continue for
more than 6 consecutive months in any twelve-month period. The acceptance or
refusal of a temporary appointment shall not affect an eligible's standing on
a register or his or her eligibility for a probationary appointment.
Successive temporary appointments to the same position shall not be made nor
shall an employee receive continued temporary appointments in the same agency,
nor shall a temporary appointment be preceded or followed by an intermittent
appointment or any other limited term employment within the twelve-month
period.
9.6. Limited Term Employment - Appointing authorities may employ
individuals for a limited period of time in accordance with the provisions of
this Rule and W.Va. Code §29-6-1 et seq. Limited term employment includes,
but is not limited to, 30-day emergency, 90-day exempt, temporary,
intermittent, and student appointments and seasonal employment with a state
forest, park or recreational area.
9.7. Posting of Job Openings - Whenever a job opening occurs in the
classified service, the appointing authority shall post a notice within the
building, facility or work area and throughout the agency that candidates will
be considered to fill the job opening. The notice shall be posted for at
least ten (10) working days before making an appointment to fill the job
opening. The notice shall state that a job opening has occurred, describe the
duties to be performed, and the class to be used to fill the job opening.
(a) The term job opening refers to any vacancy to be filled by original
appointment, promotion, demotion, lateral class change, reinstatement, or
transfer except any vacancy filled as a result of an employee exercising his
or her bumping rights as provided in subdivision 12.4.(g) of this rule.
(b) The posting notice shall include a description of the duties to be
performed by the person selected, the minimum qualifications for the position,
the job class to be used in filling the job opening, the salary level or range
that will be considered, the full-time equivalent for the position, and the
job location.
(c) An established closing date, if any, for the receipt of applications
shall allow sufficient time to ensure that the job vacancy circulation has
been posted throughout the agency for ten (10) working days. The naming of an
individual to fill the position is the appointment and is not altered by the
fact that the individual will not assume the duties until a later date.
Therefore, the agency shall not make an appointment to a position prior to the
deadline for receipt of applications as listed on the posting.
(d) The appointing authority shall give due consideration of those
employees who apply and are eligible for the posted vacancy.
(e) If a posted vacancy is not filled within six months of the
established closing date, the appointing authority must re-post the vacancy
prior to an appointment to the vacant position.
(f) Any employee in the classified service who believes that the posting
time and notice requirements of this subdivision have been violated or who is
denied consideration for the job opening has the right to initiate a grievance
as provided for in W.Va. Code §29-6A-1 et seq.
(g) The vacancy posting requirements in this subdivision shall apply to
all classified position vacancies except demotions with prejudice and/or
transfers for cause.
Section 10. Probationary Period [Top]
10.1. Nature, Purpose, and Duration
(a) The probationary period is a trial work period designed to allow the
appointing authority an opportunity to evaluate the ability of the employee to
effectively perform the work of his or her position and to adjust himself or
herself to the organization and program of the agency. It is an integral part
of the examination process and the appointing authority shall use the
probationary period for the most effective adjustment of a new employee and
the elimination of those employees who do not meet the required standards of
work.
(b) Appointing authorities shall make all original appointments to
permanent positions from officially promulgated registers for a probationary
period of not more than one year. The Board shall fix the length of the
probationary period for each class of position. The appointing authority
shall notify the Director of Personnel when a probationary period has been
completed and permanent status has been granted. This subdivision shall not
be construed to prohibit application of time served in a provisional status to
completion of a probationary period. The period of provisional appointment
may apply toward completion of the probationary period only for that part
served continuously, in the same class, and immediately prior to an original
appointment. However, it is the responsibility of the appointing authority to
state in writing at the time permanent status is being granted that the time
served in a provisional status has been applied toward completion of a
probationary period.
(c) Time spent by probationary employees on a leave of absence without
pay extends the probationary period.
10.2. Conditions Preliminary to Permanent Appointment
(a) Four weeks prior to the end of the probationary period, the
appointing authority shall obtain from the probationary employee's supervisor
a statement in writing recommending that the employee be continued or not be
continued in service. This statement shall include an appraisal of the
employee's services and should include a service rating in conformity with the
system of performance evaluation prescribed by the Director. If the
appointing authority determines that the services of the employee shall be
retained, the appointing authority shall notify the employee and the Director
of Personnel of the action no later than the last day of the probationary
period.
(b) In the event the appointing authority takes no action on the status
of a probationary employee before the expiration of the probationary period,
either to retain or terminate, the employee shall be considered as having
attained permanent status. Permanent status begins the first day following
the expiration of the probationary period.
10.3. Demotions during Probation - The serving of a probationary period
shall not, of itself, prevent an employee from being demoted to a position in
a lower class, provided he or she meets the minimum qualifications of the
lower class. However, the appointing authority may not take this action until
the employee has been presented with the reasons in writing and has been given
a reasonable time to reply in writing, or to appear personally and reply to
the appointing authority or his or her designee. The appointing authority
shall not take this action until the employee has completed one-third of the
probationary period. The probationary period for the class of position to
which the employee is demoted begins with the date of demotion.
10.4. Transfers during Probation - An appointing authority shall not
transfer an employee during his or her probationary period to a position in
another class. An appointing authority shall not transfer an employee,
certified to a vacancy on a geographic selective certification in accordance
with the provisions of subsection 8.3 of this rule, from that geographic area
to any other geographic area or class.
10.5. Dismissal during Probation
(a) If at any time during the probationary period, the appointing
authority determines that the services of the employee are unsatisfactory, the
appointing authority may dismiss the employee in accordance with subsection
12.2. of this rule. If the appointing authority gives the fifteen calendar
days notice on or before the last day of the probationary period, but less
than fifteen calendar days in advance of that date, the probationary period
shall be extended fifteen days from the date of the notice and the employee
shall not attain permanent status. This extension shall not apply to
employees serving a twelve month probationary period.
(b) The Director may restore the name of a dismissed probationary
appointee who has been dismissed to the register from which he or she was
certified, in accordance with the procedure described in subsection 12.7 of
this rule, but the Director shall not in the future certify the name of that
person to the same appointing authority from the same register.
Section 11. Promotions, Demotions and Transfers [Top]
11.1. Method of Making Promotions
(a) In filling vacancies, appointing authorities shall make an effort
to achieve a balance between promotion from within the service and the
introduction into the service of qualified new employees. Whenever practical
and in the best interest of the service, an appointing authority may fill a
vacancy by promotion, after consideration of the eligible permanent employees
in the agency or in the classified service based on demonstrated capacity and
quality and length of service.
(b) The Director must certify that a candidate for promotion possesses
the qualifications for the position as set forth in the specifications for the
class of position for which he or she is a candidate, and the appointing
authority may require the candidate to qualify for the new position by a
promotional competitive or non-competitive examination administered by the
Director.
11.2. Promotion by Competitive Examination
(a) If it is determined by the appointing authority to fill vacancies
in a particular class of position by promotion by competitive examination, the
examination shall be given under the direction of the Director. To be
eligible for promotion, an employee must, at the time the promotion is
effective, have permanent status and must meet the minimum qualifications as
to training and experience for the class of position. A promotional
competitive examination shall consist of any combination of the following:
written tests, ratings on training and experience, evaluation of recorded
service ratings and seniority, performance tests and oral examinations. The
combination in each case and the procedure for the determination of the
passing grade shall be announced by the Director in advance of the
examination, and shall take into consideration approved practices.
(b) The Director shall place the names of all employees who receive a
passing grade on a promotional register for the class of position in order of
their examination ratings.
(c) If a promotional and an original register exist, the Director shall
certify the same number of names from each register in accordance with Section
8 of this rule. The appointing authority may make his or her selection from
the names submitted from either register, giving such preference to present
employees as the good of the service will permit.
11.3. Promotion by Noncompetitive Examination - If it is determined by
the appointing authority to fill a vacancy by a non-competitive promotional
examination, an employee proposed for promotion shall be examined by the
Director in accordance with subsection 11.2 of this rule, and if found to
qualify for the class will be certified.
11.4. Demotions - There are two types of demotion, demotion with
prejudice and demotion without prejudice. A demotion with prejudice is a
reduction in pay and/or a change in job class to a lower job class due to the
inability of an employee to perform the duties of a position or for improper
conduct. A demotion without prejudice is a change in job class of an employee
to a lower job class, a transfer of an employee to a lower job class, or a
reduction in the employee's pay due to business necessity. An appointing
authority may demote a permanent employee after presenting the employee with
the reasons for the demotion stated in writing, and allowing the employee a
reasonable time to reply in writing, or upon request to appear personally and
reply to the appointing authority or his or her designee. The appointing
authority shall file the statement of reasons for the demotion and the reply
with the Director of Personnel. An appointing authority may demote a
probationary employee as provided for in subsection 10.4 of this rule.
11.5. Lateral Class Change - An appointing authority may move a
permanent employee from a position in one class to a vacant position in
another class in the same pay grade if the employee is found by the Director
to qualify for the vacant position.
11.6 Transfers
(a) Except as otherwise provided in subsection 10.4 of this rule,
appointing authorities may transfer a permanent employee from a position in
one organizational subdivision of an agency to a position in another
organizational subdivision of the same or another agency at any time. In the
case of inter-agency transfers, an appointing authority shall transfer all
hours of accumulated annual and sick leave and all service credit with the
employee. An appointing authority shall not treat an inter-agency transfer as
a resignation and shall not require an employee transferring inter-agency to
submit a resignation letter except when the employee is resigning from a
classified position to accept employment in a classified-exempt position.
(b) Appointing authorities shall report all inter and intra-agency
transfers within a class to the Director on appropriate forms at the time of
the transfer. The Director shall approve transfers to comparable classes
prior to the transfers and shall require that the employee meet the minimum
qualifications of the new class.
Section 12. Separations, Suspension, and Reinstatement [Top]
12.1. Resignations - 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 of Personnel
who shall record the resignation. If a written resignation cannot be
obtained, the appointing authority shall notify the Director of Personnel in
writing of the resignation of the employee and the circumstances of the
resignation. The appointing authority shall not treat an intra-agency nor an
inter-agency transfer as a resignation except when the employee is resigning
from a classified position to accept employment in a classified-exempt
position.
12.2. Dismissals
(a) An appointing authority may dismiss any employee for cause.
Prior to the effective date of the dismissal, the appointing authority or his
or her designee shall: meet with the employee in a predetermination conference
and advise the employee of the contemplated dismissal; give the employee oral
notice confirmed in writing, or written notice of the specific reason or
reasons for the dismissal; and, give the employee a minimum of fifteen
calendar 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. The appointing authority shall file the reasons for dismissal and
the reply, if any, with the Director of Personnel. A predetermination
conference and fifteen days notice are not required when the public interests
are best served by withholding the notice or when the cause of dismissal is
gross misconduct. An appointing authority may dismiss an employee after oral
notice stating specific reasons, confirmed in writing, when the dismissed
employee's action(s) constitute a threat to the safety or welfare of persons
or property.
(b) An appointing authority may require that an employee dismissed
for cause immediately vacate the workplace, or an 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 for cause 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 calendar days after vacating the workplace.
Receipt of severance pay does not affect any other right to which the employee
is entitled with respect to the dismissal.
(c) An appointing authority may dismiss an employee for job
abandonment who is absent from work for more than three consecutive workdays
without notice to the appointing authority of the reason for the absence as
required by established agency policy. The dismissal is effective fifteen
calendar days after the appointing authority notifies the employee of the
dismissal. Under circumstances in which the term job abandonment becomes
synonymous with the term resignation, an employee dismissed for job
abandonment is not eligible for severance pay.
12.3. Suspension - An appointing authority may suspend any employee
without pay for cause or to conduct an investigation regarding an employee's
conduct which has a reasonable connection to the employee's performance of his
or her job. The suspension shall be for a specific period of time, except
where an employee is the subject of an indictment or other criminal
proceeding. Accrued leave shall not be paid to employees during any period of
suspension. Prior to the effective date of the suspension, the appointing
authority or his or her designee shall: meet with the employee in a
predetermination conference and advise the employee of the contemplated
suspension; give the employee oral notice confirmed in writing, or written
notice of the specific reason or reasons for the suspension; and, 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 appointing authority or his
or her designee. A predetermination conference and three working days advance
notice are not required for employees in certain cases when the public
interests are best served by withholding the notice. The appointing authority
shall file the statement of reasons for the suspension and the reply, if any,
with the Director of Personnel.
12.4. Layoff
(a) When it becomes necessary by reason of shortage of work or funds,
abolition of position, material changes in duties or organization, or to
permit reinstatement of employees released from periods of military service in
the armed forces of the United States or to implement the provisions of this
subdivision, the appointing authority may initiate a layoff in accordance with
the provisions of this rule.
(b) Organizational Unit. The appointing authority shall submit to the
State Personnel Board for approval a description of the unit or units to which
a layoff will apply. The organizational unit may be an entire agency,
division, bureau, or other organizational unit.
(c) Prior to the separation or demotion without prejudice of any
employee by layoff, the appointing authority shall file with the Director a
proposed plan which shall include:
1. a statement of the circumstances requiring the layoff;
2. the approved organizational unit(s) in which the proposed
layoff will take place; and,
3. a list of the employees in each class affected by the layoff
in order of retention.
(d) It is the duty of the Director to verify the details on which the
lists are based and to notify the appointing authority in writing of the
plan's approval.
(e) The plan followed by the appointing authority shall be available,
upon request in writing, to any employee or adversely affected former
employees.
(f) Order of Separation. After the appointing authority has determined
the number of positions to be abolished and the Board has approved the
organizational unit to which the layoff will apply, the order of separation
shall be applied in the following manner:
1. employees without permanent status in the same class or
classes identified for layoff in the following order: emergency, ninety-day
exempt, student, seasonal, contract, intermittent, temporary, exempt part-time
professional, provisional, and probationary.
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, educational leave, or periods
during which the employee is paid temporary total disability benefits under
the provisions of WV Code §23-4-1for 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, 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.
(g) Bumping Rights. A permanent employee who is to be laid off may
request a lateral class change or an demotion without prejudice to a job class
in a lower pay grade in the occupational group in the same unit approved by
the Board for reduction in force unless the results would be to cause the
layoff of another permanent employee who possesses greater seniority than the
employee who is exercising the request for lateral class change or demotion
without prejudice. The employee requesting the lateral class change or
demotion without prejudice must be available for the work schedule and at the
work location of the job to which he or she has requested the change or
demotion. A permanent employee who is laid off under these provisions as a
result of another employee having a greater seniority requesting a lateral
class change or demotion with 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
knowledges, skills and abilities.
(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.
( i) Recall. Recall of a permanent employee shall be to the agency as a
whole and 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 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 of the vacancy. It is the
responsibility of the employee to notify the agency of any change in mailing
address.
( j) Preference Hiring. When filling vacancies at agencies, appointing
authorities shall, for a period of twelve months after the layoff of a
permanent classified employee in another agency, give preference to those
laid-off qualified permanent classified employees based on seniority and
fitness over all but existing employees of the agency or its facilities. 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 .
(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.
(l) Appeals. Employees shall file appeals from layoffs in accordance
with W.Va. Code §29-6A-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
(a) A former employee who had attained permanent status under the
Division of Personnel who has resigned 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.
(b) Appointing authorities shall reinstate provisional, probationary, or
permanent employees who leave the classified service to enter the armed forces
of the United States in time of war or national emergency or under compulsory
provisions of law of the United States in time of peace to their former
positions or to positions of like class, seniority and pay within 30 days
following application provided that within 90 days after release from active
military service the employees indicate in writing or in person to the agency
their readiness and ability to return to classified employment. Veterans
hospitalized immediately on release from the armed services due to
service-connected disabilities must apply for reinstatement within 90 days of
their release from hospitalization.
(c) Any veteran who has been in the armed services of the United States
and who has been granted military leave from one of the agencies and who
returns to the agency shall be granted all within-grade 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. The appointing authority shall uniformly apply the
provisions in this subdivision to all veterans within an agency having had
military leave and who return to the agency.
Section 13. Reconsideration - Any applicant or employee may request that the
Director reconsider a decision which directly affects the applicant or
employee. Unless otherwise specified in this rule, the request must be
submitted in writing within fifteen days of the applicant's or employee's
notification of the decision. Within thirty days of receipt of the
applicant's or employee's request for reconsideration, the Director shall
notify the applicant or employee of his or her decision.
Section 14. Attendance and Leave. In compliance with West Virginia Code §21-
5C-1 et seq., §2-2-1 et seq., §15-5-15a, and §29-6-10 the following provisions
apply to classified employees.
14.1. Official Holidays [Top]
(a) Employees shall be released from work with pay in observance of the
following official holidays : New Year's Day, the first day of January; Martin
Luther King's Birthday, the third Monday of January; Lincoln's Birthday, the
twelfth day of February; Washington's Birthday, the third Monday of February;
Memorial Day, the last Monday in May; West Virginia Day, the twentieth day of
June; Independence Day, the fourth day of July; Labor Day, the first Monday of
September; Columbus Day, the second Monday of October; Veterans' Day, the
eleventh day of November; Thanksgiving Day, the fourth Thursday of November;
Christmas Day, the twenty-fifth day of December; any day on which an election
(Primary, General, or Special) is held throughout the State, and, such
other days as the President, Governor or other duly constituted authority
proclaim to be official holidays or days of special observance or
thanksgiving, or days for the general cessation of business.
(b) When a holiday falls on a Sunday, the following Monday shall be
observed as the official holiday. When a holiday falls on a Saturday, the
previous Friday shall be observed as the official holiday. When Christmas or
New Year's Day occurs on Tuesday, Wednesday, Thursday, or Friday, the last
half of the scheduled workday immediately preceding the holiday will be given
as time off not to exceed four hours. When an agency must modify holiday
observances to accommodate around-the-clock shifts or other special needs, the
agency shall notify employees in advance of the modification and shall
schedule alternate holiday observances on days as close as possible to the
holidays. The total amount of paid time off for holidays shall not exceed
eight hours per full day holiday.
(c) Part-time employees are entitled to receive time off with pay for
holidays, regardless of whether the holidays fall within the employees'
regular work schedules, in proportion to the amount of time worked as compared
to the employer's standard workweek for a full-time employee.
(d) An employee must either work or be on approved paid leave for
either the full scheduled workday before or the full scheduled workday after
the holiday and either work or be on approved paid leave for any fraction of
the scheduled workday before or the scheduled workday after the holiday to
receive pay for the holiday. No employee is entitled to payment for any
holiday that occurs prior to the first day of work or after the date of
separation (sub-section 3.25).
(e) Agencies shall make reasonable accommodation to an employee's
religious holidays as required by law.
14.2. Agency Work Schedules - Each appointing authority shall establish
the work schedule for the employees of his or her agency. The work schedule
shall specify the number of hours of actual attendance on duty for full-time
employees during a workweek, the day and time that the workweek begins and
ends, and the time that each work shift begins and ends. The work schedules
and changes must be submitted to the Director within fifteen (15) calendar
days after employees commence work under the schedule.
14.3. Annual Leave [Top]
(a) Amount, Accrual - Except as otherwise noted in this rule, each
employee is eligible to accrue annual leave with pay and benefits. The table
below lists the rates of accrual according to the employee's length of service
category and the number of hours of annual leave that may be carried forward
from one calendar year to another. Annual leave is accrued at the end of each
pay period or on the last workday for separating employees. It may be
prorated for employees granted a medical leave of absence or satisfying the
conditions for approval of a medical leave of absence in accordance with
subdivision 14.8(c) of this rule. Prorated leave is computed in proportion to
normal hours worked and/or hours of paid sick and/or annual leave during the
pay period based on the proper length of service category. Annual leave cannot
be accrued for hours not paid nor for hours worked beyond the normal workweek
which shall not exceed 40 hours.
Length of Service Accrual Rate: Carry-forward Rate:
Category Hours Equal To Hours Equal To
Less than 5 years of 1.25 days/month 30 days
qualifying service
5 years but less than 10 1.50 days/month 30 days
years of qualifying service
10 years but less than 15 1.75 days/month 35 days
years of qualifying service
15 years or more of 2.00 days/month 40 days
qualifying service
(b) Service to Qualify - Qualifying service for length of service
category is based on State employment or employment in the classified service.
No service credit accrues for periods during which an employee is not paid a
wage or salary unless otherwise provided by State or Federal statute.
(c) Requesting, Granting - Accrued annual leave shall be granted at
those times that will not materially affect the agency's efficient operation
or when requested under the provisions of W.Va. Code §21-5D-1 et seq., the
Parental Leave Act and 29 U.S.C. 2601-2654, The Family and Medical Leave Act
of 1993. The employee shall request annual leave in advance of taking the
leave except as noted elsewhere in this subdivision. Annual leave may not be
granted in advance of the employee's accrual of the leave. Agencies are
encouraged to grant annual leave when hazardous conditions make going to and
from work difficult.
(d) Coverage
1. 30-day emergency, per diem, student, seasonal, or 90-day
exempt employees shall not accrue annual leave.
2. Annual leave accrued by provisional, intermittent, irregular
part-time and temporary (appointed from the register) employees shall be
computed in proportion to normal hours worked and/or hours of paid sick and/or
annual leave during the pay period not to exceed the full-time work schedule
of the employer. These employees must take their accrued annual leave prior
to the expiration of the period of appointment, unless immediately followed by
an appointment from the register, or the leave is forfeited.
3. Annual leave accrued by part-time employees shall be computed
in proportion to normal hours worked and/or hours of paid sick and/or annual
leave during the pay period based on the proper length of service category.
(e) Minimum Charge - The minimum charge against annual leave shall be
one quarter (1/4) hour. Additional leave shall be in multiples of a quarter
hour.
(f) Separation from Employment - The appointing authority shall pay an
employee who separates from employment for any reason for all accrued and
unused annual leave. An employee does not accrue annual leave after his or
her date of separation. The payment shall be made according to one of the
following methods:
1. An employee may elect to be paid in semi-monthly installments
at his or her usual rate of pay as if employment were continuing until the pay
period during which the accrued annual leave is exhausted. If the last day
for which leave payment is due falls before the day on which the pay period
ends, terminal annual leave payment for those days within that pay period
shall be calculated using the daily rate for the half-month in which the last
day on payroll occurs. Employees in positions allocated to job classes
assigned to an hourly pay schedule or per diem pay schedule approved by the
Board shall be paid according to those standard procedures. No deductions may
be made for contributions toward retirement from the payment for terminal
annual leave;
2. Any eligible employee as defined in W.Va. Code §5-5-1 who is
separated from employment by resignation, layoff, dismissal, retirement,
death, or termination, may be paid in a lump sum, at his or her option, for
accrued and unused annual leave. Terminal annual leave payment for an
employee who selects a lump sum payment shall be calculated as if employment
were continuing until the pay period during which the accrued annual leave is
exhausted in accordance with paragraph one of this subdivision. Employees in
positions allocated to job classes assigned to an hourly pay schedule or per
diem pay schedule approved by the Board shall be paid according to those
standard procedures. The lump sum payment shall be made by the time of what
would have been the employee's next regular pay day had his or her employment
continued. No deductions may be made for contributions toward retirement from
the lump sum payment; or
3. An employee who retires may elect not to receive payment for
any or all terminal annual leave and may apply the balance towards extended
insurance coverage under guidelines established by the Public Employees
Insurance Agency or to acquire additional credited service in the appropriate
state retirement system.
(g) Transfer of Annual Leave
1. When a classified employee transfers or otherwise changes
employment from one agency to another, all service credit and hours of accrued
annual leave shall be transferred. The previous employer shall provide
written documentation of the employee's annual leave balance to the other
agency within thirty (30) calendar days after the employee commences work.
2. Annual leave accrued while in exempt or classified-exempt
permanent employment shall be transferred to classified employment.
(h) When Sick Leave Exhausted - Annual leave, if requested, shall be
granted in circumstances when sick leave or the sick leave allowance for an
employee's immediate family is exhausted. The provisions of subdivision
14.4.(g) of this rule regarding the necessity for a physician's statement when
sick leave is used apply when annual leave is used under these circumstances.
14.4. Sick Leave [Top]
(a) Accrual - Except as otherwise provided in this subdivision, each
employee shall receive accrued sick leave with pay and benefits. Sick leave
is computed on the basis of hours equal to 1.5 days per month for full-time
employees. Sick leave is accrued at the end of each pay period or on the last
workday for separating employees. It may be prorated for employees granted a
medical leave of absence or satisfying the conditions for approval of a
medical leave of absence in accordance with subdivision 14.8(c) of this rule.
Prorated leave is computed in proportion to normal hours worked and/or hours
of paid sick and/or annual leave during the pay period. Sick leave cannot be
accrued for hours not paid nor for hours worked beyond the normal workweek
which shall not exceed 40 hours. There is unlimited accumulation of sick
leave.
(b) Coverage
1. Sick leave shall not be accorded 30-day emergency, 90-day
exempt, student, or per diem employees.
2. Provisional, temporary (appointed from the register),
irregular part-time and intermittent employees shall accrue sick leave in
proportion to normal hours worked and/or hours of paid sick and/or annual
leave in the pay period. The leave expires at the termination of the period of
employment unless immediately followed by an appointment from the register for
a permanent position.
3. Part-time, probationary, and permanent employees shall accrue
sick leave with pay and benefits in proportion to hours they are employed to
work annually.
(c) Minimum Charge - The minimum charge against sick leave is one
quarter (1/4) hour. Additional leave is charged in multiples of one quarter
hour.
(d) Maximum Charge - The maximum charge against sick leave is one work
year per substantially continuous absence. The appointing authority may at
his or her discretion grant additional accrued sick leave if the employee's
disability, as verified by a physician, is not of such a nature as to render
the employee permanently unable to perform the essential duties of the
position.
(e) Separation from Employment - Sick leave does not accrue after the
date of separation as defined in this rule.
1. Retirement - An employee eligible to retire at the time of
separation from employment may use unused sick leave to purchase extended
insurance coverage upon retirement under guidelines established by the Public
Employees Insurance Agency or upon retirement to acquire additional credited
service in the state retirement system under guidelines established by the
Consolidated Public Retirement Board.
2. All Other Separations - All accumulated sick leave shall be
cancelled as of the date of separation. If an employee returns to eligible
employment, as provided in subdivision (b) of this subsection, within twelve
(12) calendar months, including the first working day the reinstatement could
be accomplished, all cancelled sick leave shall be restored. However, if the
employee returns to eligible employment after more than twelve (12) calendar
months from the effective date of separation of employment, no more than
thirty (30) days of cancelled sick leave shall be restored. If an employee is
recalled from a layoff all cancelled sick leave shall be restored.
(f) Granting - Sick leave may not be granted in advance of the
employee's accrual of the leave. Appointing authorities shall grant accrued
sick leave requested by employees for the following reasons:
1. Illness - Sick leave shall be granted in the event of an
illness of, or injury to, an employee which incapacitates him or her from
performing his or her duties ;
2. Death in the immediate family of the employee - Sick leave
shall be granted up to 3 days to an employee for the death of any member of
his or her immediate family as defined in this rule;
3. Exposure to Contagious Disease - Sick leave shall be granted
in the case of exposure to a contagious disease when a physician determines
and states in writing that the employee's presence on duty may jeopardize the
health of others;
4. Pregnancy - An incapacity due to pregnancy shall be charged to
sick leave under the same conditions applying to any illness;
5. Routine Dental and Medical Appointments-Employee - Routine
dental and medical appointments for treatment or examination of the employee
shall be charged to sick leave. Reasonable travel time for the appointments
may also be charged to sick leave not to exceed a total of three hours per
occurrence ;
6. Illness and/or Routine Dental and Medical
Appointments-Immediate Family - Absence for illness or routine medical and
dental appointments of a member of an employee's immediate family as defined
in this rule shall be charged to accrued sick leave, not to exceed 40 hours per
calendar year. Reasonable travel time for the appointments may also be
charged to sick leave not to exceed a total of three hours per occurrence; or,
7. Work related illness or injury - An employee may elect to use
sick leave due to a personal injury received in the course of and resulting
from covered employment with the State or its political subdivisions in
accordance with W. Va. Code §23-4-1. However, an employee who elects not to
use sick leave under this paragraph must apply for a medical leave of absence
without pay as provided under part 14.8(c)1.a.2 of this rule.
(g) Physician's Statement
1. The Director shall prescribe a physician's statement form to
be supplied by all agencies to its employees. All agencies shall use this
form or an alternate form or method, approved by the Director, to obtain the
necessary information.
2. Within two days of return to work, an employee shall furnish a
prescribed physician's statement form from the attending
physician/practitioner for all consecutive days of sick leave granted beyond
three working days. If the employee's physician/practitioner has placed
restrictions or limitations on the employee's work activities, the employee
must furnish the prescribed physician's statement immediately upon return to
work. The physician's statement form shall specify the period of incapacity
and state that the employee was unable to perform his or her job or that the
employee's absence was due to reasons provided in Paragraph 14.4(f)6 of this
rule for a member of the employee's immediate family.
3. In the absence of a prescribed physician's statement form, the
entire absence shall be charged to unauthorized leave as provided in
subsection 14.6 of this rule, and the employee's pay shall be docked the
following pay period for the entire period of absence. The appointing
authority shall notify the employee in writing that his or her pay is being
docked.
4. For extended periods of sick leave, a prescribed physician's
statement form confirming the necessity for continued leave must be submitted
within thirty (30) calendar days of the commencement of the sick leave and
must indicate a date the physician will release the employee to return to work
or a date the physician will re-evaluate the employee's medical condition.
For employees being re-evaluated, an additional physician's statement must be
submitted upon re-evaluation. Failure to produce the required statement is
grounds to terminate further sick leave benefits and the appointing authority
shall immediately place the employee on unauthorized leave and notify the
employee in writing of such action as provided in subsection 14.6 of this
rule. This written notice shall allow the employee fifteen days to submit the
required physician's statement . Failure of the employee to submit the
required statement within the fifteen day notice period, except for
satisfactory reasons submitted in advance to the appointing authority, is
cause for dismissal. The necessity for absence because of exposure to
contagious disease must be verified on a prescribed physician's statement form
regardless of the length of absence.
(h) Return At Less Than Full Duty - The appointing authority may permit
an employee to return to work from sick leave at less than full duty, but the
terms of return the shall be in writing and are subject to review by the
Director. The review may include the requirement of additional information
from a physician regarding the employee's ability to perform the essential
duties of his or her job.
1. Any denial of an employee's request to return to work at less
than full duty must be approved by the Director.
2. The Director may deny the request to return to work at less
than full duty under conditions including, but not limited to, the following:
(a) the employee cannot perform the essential duties of his
or her job;
(b) the nature of the employee's job is such that it may
aggravate the employee's medical condition; or,
(c) the approval of the request would seriously impair the
conduct of the agency's business.
3. Approval of a return to work at less than full duty shall be
granted for no longer than 30 days. Requests to continue at less than full
duty for more than 30 days shall fall under the same requirements as an
original request.
(i) Transfer of Sick Leave
1. When a classified employee transfers or otherwise changes
employment from one agency to another, all hours of accrued sick leave shall
be transferred. The previous employer shall provide written documentation of
the sick leave balance to the other agency within thirty (30) calendar days
after the employee commences work.
2. At the discretion of the appointing authority, sick leave
accrued while in other State employment may be transferable to covered agency
employment.
(j) Illness While on Annual Leave - An employee who becomes ill and who
is admitted to a hospital or has medical services performed in an emergency
room while on previously approved annual leave may request that all or part of
the time spent in a hospital or emergency room be charged to sick leave. The
employee shall request that action immediately upon return to work and shall
provide a physician's statement or hospital statement listing the specific
dates of hospitalization or emergency room services. Sick leave may be
charged only for the period of time the employee is hospitalized or in the
emergency room. The remainder of the time shall be charged to annual leave.
14.5. Suspected Leave Abuse - When an employee appears to have a
pattern of leave abuse, including such frequent use of sick leave as to render
the employee's services undependable, the appointing authority may request
appropriate substantiation of the employee's claim for leave, for example,
verification of an illness of less than three days. The appointing authority
shall give the employee prior written notice of the requirement for
appropriate substantiation.
14.6. Unauthorized Leave - When an employee is absent from work without
authorization for sick or annual leave, the appointing authority shall dock
the employee's pay in the next pay period for an equal amount of time paid
during which no work was performed. The appointing authority shall notify the
employee in writing that his or her pay is being docked and that the
unauthorized leave is misconduct for which discipline is being imposed. The
appointing authority shall use unauthorized leave only in cases when the
employee fails to obtain the appropriate approval, according to agency policy,
for the absence. The appointing authority shall transmit notice of the action
in writing to the Director of Personnel.
14.7. Overtime Work and Holiday Work - An appointing authority or his
or her designated representative may require an employee to work in excess of
the prescribed working hours or on holidays when
the work is considered necessary to the public interest. Compensation shall be
made in accordance with the Fair Labor Standards Act of 1986 and W.Va. Code
§21-5(C)-1 et seq.
14.8. Leave of Absence Without Pay
(a) Personal Leave - An appointing authority may grant a permanent,
probationary, or provisional employee a leave of absence without pay for a
specific period of time which normally should not exceed one year. The
employee shall apply for the leave of absence in writing to the appointing
authority. If the appointing authority approves the request, the approval
shall be in writing. A leave of absence without pay may exceed the normal one
year limitation and the appointing authority may grant the leave of absence at
his or her discretion based on the agency's personnel needs. Time spent by
provisional employees for leaves of absence does not extend the provisional
period limitation. Written approval of the appointing authority is required
in all cases. Approval of personal leave is discretionary with the appointing
authority.
(b) Family Leave - The Board, by formal action, may establish uniform
procedures, which shall be followed by all appointing authorities, for
granting leave to eligible employees under the provisions of W.Va. Code §21-
5D-1 et seq., the Parental Leave Act, and 29 U.S.C. 2601-2654, the Family and
Medical Leave Act of 1993.
(c) Medical Leave; Notice to Employee
1. An injured or ill permanent employee upon written application
to the appointing authority shall be granted a medical leave of absence
without pay not to exceed six (6) months within a twelve month period
provided:
a. The employee (1) has exhausted all sick leave and makes
application no later than fifteen (15) calendar days following the expiration
of all sick leave or (2) has elected not to use sick leave for a personal
injury received in the course of and resulting from covered employment with
the State or its political subdivisions in accordance with W. Va. Code §23-4-1
and makes application no later than fifteen (15) calendar days following the
date on which the employee filed a claim for Worker's Compensation ;
b. The employee's absence is due to an illness or injury
which is verified by a physician/practitioner on the prescribed physician's
statement form stating that the employee is unable to perform his or her
duties and giving a date for the employee's return to work or the date the
employee's medical condition will be re-evaluated;
c. A prescribed physician's statement form is submitted each
time the employee's condition is re-evaluated to confirm the necessity for
continued leave; and,
d. The disability, as verified by a physician/practitioner
on the prescribed physician's statement form, is not of such nature as to
render the employee permanently unable to perform his or her duties.
2. The appointing authority shall, at least 15 days prior to, if
possible, but no later than five (5) days following the expiration of the
employee's sick leave, mail to the employee a written notice of the employee's
right to a medical leave of absence without pay and informing him or her that
the leave will not be granted if he or she fails to apply within the time
limits specified in subparagraph 14.8(c)1.a. of this rule.
(d) End of Leave
1. At the expiration of a leave of absence without pay, the
employee shall be returned to duty to either his or her former position, or
one of comparable pay and duties, without loss of rights, unless the position
is no longer available due to a reduction-in-force.
2. If the leave of absence without pay was granted due to
personal illness, the employee must furnish from the attending
physician/practitioner a prescribed physician's statement form indicating the
ability of the employee to return to work. The appointing authority may
permit an employee to return to work at or before the expiration of the leave
of absence 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.
3. Failure of the employee to report promptly at the expiration
of a leave of absence without pay, except for satisfactory reasons submitted
in advance to the appointing authority, is cause for dismissal.
(e) Reporting Procedures - The appointing authority must report a leave
of absence without pay to the Director. The appropriate forms must include
the provision of this Rule under which the leave is being granted, the
employee's last date on the payroll, and the specific anticipated date for
return to duty.
14.9. Military Leave [Top]
(a) State Active Duty and Reserve Military Service - In accordance with
the provisions of West Virginia Code §15-1F-1(a), all officers and employees
of the State who are members of the National Guard or of any of the reserve
components of the armed forces of the federal government are entitled to a
leave of absence from employment without loss of pay, status, or efficiency
rating, on all days during which they are engaged in drills or parades , or
for examination to determine fitness for duty, inactive duty training, funeral
honors duty for the State or federal government, active duty for training or
active service for the State all to include reasonable travel time to and from
the duty location, for a maximum period of thirty working days in any one
calendar year when ordered or authorized by proper authority. The term
"without loss of pay" means that the employee continues to receive his or her
normal salary or compensation, notwithstanding the fact that the employee may
have received other compensation during the same period. An employee need not
exhaust all annual leave or sick leave. Furthermore, the leave of absence is
considered as time worked for the agency in computing seniority, eligibility
for salary increase and experience with the agency. The terms of this
subdivision do not apply under the provisions of any military selective
service act. An employee shall provide to the appointing authority advance
written or verbal notification of an obligation or intention to perform
military duty and such written orders or other documentation, if available, in
support of the request for military leave. None of the unused days of
military leave for which an officer or employee is eligible under this
subdivision may be carried over and used in the next calendar year. An
employee on extended federal active duty or full-time National Guard duty is
eligible for leave provided in this subdivision only in the year he or she is
called to active duty, and in subsequent years only after he or she has been
discharged from military duty and returned to State employment.
(b) Federal Active Duty - In accordance with the provisions of West
Virginia Code §15-1F-1(b), all officers and employees of the State who are
ordered or called to active duty by properly designated federal authority are
eligible for an additional leave of absence from employment without loss of
pay, status, or efficiency rating for a maximum period of thirty working days
for each single call to active duty, active duty for training, initial active
duty for training, or full-time National Guard duty, all to include reasonable
travel time to and from the duty location. All officers and employees of the
State called to federal active duty or full-time National Guard duty who have
not used all or some portion of the thirty working days of military leave
granted by subdivision (a) of this subsection are eligible to use those unused
days in the same calendar year prior to using the thirty days for which they
are eligible under this subdivision, up to a maximum of sixty days for a
single call to active duty. None of the unused days for which an officer or
employee is eligible under subdivision (a) may be carried over and used in the
next calendar year. An employee on extended federal active duty or full-time
National Guard duty is eligible for leave provided in subdivision (a) of this
subsection only in the year he or she is called to active duty, and, in
subsequent years, only for a subsequent call to duty and only after he or she
has been discharged from military duty and returned to State employment. The
term "without loss of pay" means that the employee shall continue to receive
his or her normal salary or compensation, notwithstanding the fact that the
employee may have received other compensation from federal or state sources
during the same period.
(c) Other than as provided in subdivision (b) of this subsection, any
employee hired for permanent employment entering the U.S. armed services in
time of war, national emergency or under compulsory provisions of law of the
U.S. in time of peace shall be granted a leave of absence from his or her
service with the agency. Upon completion of and discharge from the armed
services and within the applicable time period prescribed by federal statute,
rule, or regulation regarding return to employment, the employee has the right
to resume his or her service with the agency without any prejudice to his or
her status, merit rating or standing by reason of the absence, in accordance
with subdivision) 12.6(b) of this rule. An employee shall be credited with
all annual leave and sick leave not used at the commencement of his or her
military leave in accordance with subdivision 12.6(c) of this rule. This
subdivision shall not be construed:
1. As an attempt to enlarge or to extend the length of employment
of any temporary employee or to create a definite term where no definite term
with respect to the position previously existed;
2. As providing that the salary paid by the agency shall continue
to be paid to the employee while he or she is not performing the duties of his
or her position with the state because of the services with the armed forces
of the United States; or,
3. As having precedence over the provisions of any applicable
federal statute, rule, or regulation regarding military leave or re-employment
rights with which this subdivision is inconsistent or in conflict including,
but not limited to, the Uniformed Services Employment and Reemployment Rights
Act.
14.10. Court, Jury, and Hearing Leave
(a) Upon application in writing, an employee hired for permanent
employment shall be granted leave with pay when, in obedience to a subpoena or
direction by proper authority, he or she serves upon a jury or appears as a
witness before any court or judge, any legislative committee, or any officer,
board, or body authorized by law to conduct any hearing or inquiry. This
subdivision shall not apply in cases where the employee is a litigant,
defendant or other principal party or has a personal or familial interest in
the case or proceeding. This subdivision shall not be construed:
1. to deprive, prohibit, or infringe upon the rights of any
employee who is a party to, or a witness in, a grievance proceeding or a court
of law proceeding resulting from the course of his or her State and/or
classified employment; or,
2. to deprive, prohibit, or infringe upon the rights of any
employee in their pursuit of personal or civic responsibilities while on
annual leave or a personal leave of absence.
(b) The employee shall furnish such written confirmation of the absence
as is required by the Director.
14.11. Education Leave [Top]
(a) Subsidized by Agency - An agency authorized by law to subsidize
advanced educational training for classified employees may grant to selected
employees educational leave subject to conditions stipulated by that agency.
The procedures for granting educational leave and compensatory payment shall
be filed with the Director of Personnel. The leave shall be considered as
continuous employment, except that employees while on educational leave shall
not accrue sick leave or annual leave, nor are the employees eligible for
salary advancements.
(b) Non-subsidized by Agency - A personal leave of absence may be
granted for educational purposes in conformance with the requirements of
subdivision 14.8(a) of this rule.
14.12. Supplemental Attendance and Leave Regulations - Each agency shall
prepare supplemental rules as may be required. The rules shall not enhance
nor diminish the benefits afforded by this subsection. Copies of all rules
shall be filed with the Director who may approve, amend or disapprove the
supplemental rules.
14.13. Distribution of Regulations - Each agency shall make available
to each of its employees a copy of this attendance and leave rule together
with the agency's own supplemental attendance and leave rules.
14.14. Leave Records - Each agency shall maintain a current leave
record of its employees' accrued and used leave. Each employee shall have
access to his or her leave records subject to the appropriate agency's
established rules . Supervisors and employees shall attest to the accuracy of
the records on a periodic basis, but not less than twice annually.
Section 15. Performance Evaluations [Top]
The Director of Personnel, after consultation with the appointing
authorities, and with the approval of the Board, shall establish and make
effective a system of performance evaluation designed to provide a valid
evaluation of the quality and quantity of work performed by employees.
Insofar as practicable the system of performance evaluation in the classified
service shall be standardized. The appointing authority shall prepare and
record evaluations for all permanent employees at regular intervals not to
exceed twelve months. The appointing authority shall consider performance
evaluations as well as other recorded indicators of performance in determining
salary advancements and in making promotions, demotions, and dismissals. The
appointing authority shall notify an employee of his or her performance
evaluation in writing and shall retain copies of performance evaluations in
the employee's personnel record.
Section 16. Political Activities [Top]
16.1. Prohibition of Political Activities
(a) An appointing authority shall not appoint, promote, demote, or
dismiss any person in the classified service or in any way favor or
discriminate against any person with respect to such employment because of his
or her political opinions or affiliations . Nothing in this subdivision shall
be construed as precluding the dismissal of any employee who may be engaged in
subversive activities or found disloyal to the nation.
(b) No person shall seek or attempt to use any political endorsement in
connection with any appointment in the classified service.
(c) No person shall use or promise to use, directly or indirectly, any
official authority or influence, whether possessed or anticipated, to secure
or attempt to secure for any person an appointment or advantage in appointment
to a position in the classified service, or an increase in pay or other
advantage in employment in any position, for the purpose of influencing the
vote or political action of any person, or for any consideration.
(d) No employee in the classified service or member of the Board or the
Director shall, directly or indirectly, solicit or receive any assessment,
subscription or contribution, or perform any service for any political party,
committee or candidate for compensation, other than for expenses actually
incurred, or in any manner take part in soliciting any assessment,
subscription, contribution or service of any employee in the classified
service.
(e) Notwithstanding any other provision of the West Virginia Code, no
employee in the classified service shall:
1. Use his or her official authority or influence for the purpose
of interfering with or affecting the result of an election or a nomination for
office;
2. Directly or indirectly coerce, attempt to coerce, command or
advise a state or local officer or employee to pay, lend or contribute
anything of value to a party, committee, organization, agency or person for
political purposes; or
3. Be a candidate for any national or state paid public office or
court of record; or hold any paid public office; or be a candidate or delegate
to any state or national political party convention, a member of any national,
state or local committee for a political party, or a financial agent or
treasurer within the meaning of the provisions of W.Va. Code §3-8-3, 4, or
5(e). Other types of partisan or nonpartisan political campaigning and
management not inconsistent with the provisions of this subdivision and with
the provisions of subdivision (d) of this subsection, are permitted.
(f) Political participation pertaining to constitutional amendments,
referendums, approval of municipal ordinances or activities are not prohibited
by the provisions of this subdivision.
(g) Any classified employee who becomes a candidate for any paid public
office as permitted by this subdivision shall request and receive a leave of
absence without pay for the period of the candidacy, commencing upon the
filing of the certificate of candidacy. If the employee withdraws his or her
candidacy, he or she shall return from the leave of absence immediately upon
such withdrawal. If the employee is not elected, he or she shall return from
the leave of absence immediately after the official canvass of votes. At the
expiration of the leave of absence without pay, the employee shall be returned
to duty to either his or her former position or one of comparable pay and
duties, without loss of rights, unless the position is no longer available due
to a reduction-in-force. If elected, the employee shall resign or be
dismissed from the position in the classified service to be effective no later
than the date of assuming the elective office.
16.2. Application of the Hatch Act - Any classified or classified-
exempt employee who, as a normal and foreseeable incident of his or her
principle activity, performs duties in connection with programs financed
wholly or in part by loans or grants made by the United States or a federal
agency is subject to provisions of the Hatch Act for State and Local
Government Employees restricting political activity, 5 USC 1501-8. Each
appointing authority shall inform all classified and classified exempt
employees of these provisions and employees shall adhere to these provisions.
16.3. Additional Prohibition for Highways Employees - No person may be
appointed or employed in any capacity by the Division of Highways who is a
candidate or holds any public office or is a member of any political party
committee. An employee of the Division of Highways may not be a candidate for
or hold any public office or be a member of any political party committee. An
employee of the Division of Highways who becomes a candidate for or holds any
public office or becomes a member of any political party committee shall
resign or be dismissed from his or her position with the division immediately
on the date of the filing of candidacy or the date of assuming the public
office or the political party committee membership.
16.4. Additional Prohibition for Rehabilitation Services Employees - No
employee engaged in the administration of the Vocational Rehabilitation
program shall take an active part in the management of political campaigns or
participate in any political activity, except that he or she shall retain the
right to vote as he or she may please and to express his or her opinions as a
citizen on all subjects. They shall not solicit or receive, nor shall they be
obliged to contribute or render any service, assistance, subscription,
assessment, or contribution for any political purpose.
Section 17. Employment Conflicts [Top]
17.1. Other Employment. No employee shall hold other public office or
have conflicting
employment while in the classified service. Determination of the conflict
shall be made jointly by the appointing authority and the Board, or may be
specifically delegated by the Board to the appointing authority, who shall
consider whether the other employment: (1) will be in conflict with the
interests of the agency; (2) will interfere with the performance of the
employee's official duties; (3) will use or appear to use information obtained
in connection with official duties which is not generally available to the
public; or, (4) may reasonably be regarded as official action.
17.2. Nepotism. No appointing authority shall influence or attempt to
influence the employment or
working conditions of his or her immediate family. It is the responsibility
of the appointing authority to administer the employment of relatives of any
agency employee in a consistent and impartial manner.
No employee shall directly supervise a member of his or her immediate
family. More specifically, no employee shall review or audit the work of a
member of his or her immediate family, or take part in discussions concerning
employment, assignment, compensation, discipline or related matters involving
a member of his or her immediate family. In the event that an individual,
through marriage, adoption, etc. is placed in a prohibited business
relationship with a member of his or her immediate family, the situation shall
be resolved within thirty calendar days. Resolution may be made by transfer,
reassignment, resignation, etc. of one of the involved employees or by other
accommodation which protects the interests of the public.
Section 18. Payroll Certification [Top]
(a) No state disbursing or auditing officer shall make or approve or
take any part in making or approving any payment for personal service to any
person holding a position in the classified service unless the payroll voucher
or account of the pay bears the certification of the Director, or of his or
her authorized agent, that the persons named in the voucher or account have
been appointed and employed in accordance with the provisions of this rule.
The Director may for proper cause withhold certification from an entire
payroll or from any specific item or items on the payroll. The Director may,
however, provide that certification of payrolls may be made once every six
months, and the certification shall remain in effect except in the case of any
officer or employee whose status has changed after the last certification of
his or her payroll. In the latter case no voucher for payment of salary to
the employee shall be issued or payment of salary made without further
certification by the Director.
(b) If the Director wrongfully withholds certification of the payroll
voucher or account of any employee, the employee may maintain a proceeding in
the courts to compel the Director to certify the payroll voucher or account.
Section 19. Records and Reports [Top]
Each agency shall establish and maintain a personnel record for each
employee, showing the employee's name, title, organizational unit, salary,
changes in status, performance evaluations, and such other personnel
information as may be considered pertinent. The Director shall maintain
applications for examination for at least one year after the date of the
application. All personnel records shall be open to the inspection of the
Board but shall otherwise be held confidential by each agency and the Director
in accordance with section 21 of this rule.
Section 20. Confidentiality [Top]
The business of the division shall be conducted in such a manner as to
ensure the privacy rights of all applicants and employees, in accordance with
West Virginia Code §29B-1-1 et seq., the State Freedom of Information Act and
5A-8-1et seq., the Public Records Management and Preservation Act.
Examination scoring keys, applicant and employee residential addresses and
phone numbers, applicant and employee medical information, and other
information which the Director may deem confidential shall be maintained under
strictest confidentiality and released only upon proper written authorization
of the applicant or employee or by order of a court of competent jurisdiction.
Section 21. Duties of State Officers; Legal Proceedings to Secure Compliance;
Penalties
21.1. Duties of State Officers - Pursuant to W.Va. Code §29-6-12, all
agencies' officers and employees shall comply with and aid in all proper ways
in carrying out the provisions of W.Va. Code §29-6-1 et seq., and the rules
and orders promulgated in accordance with W.Va. Code §29-6-1 et seq. All
officers and employees shall furnish any records or information which the
Director or the Board may request for any purpose of W.Va. Code §29-6-1 et
seq. All officers and employees shall comply with all rules, policies and
orders of the Director or the Board and shall not increase nor diminish any
benefits afforded any classified employee by the rules, or orders.
21.2. Legal Proceedings to Secure Compliance - Pursuant to W.Va. Code
§29-6-12, the Director may institute and maintain any action or proceeding at
law or in equity which he or she considers necessary or appropriate to secure
compliance with W.Va. Code §29-6-1 et seq., and the rules and orders
promulgated under the code.
21.3. Penalties
(a) Any person who willfully violates any provision of W.Va. Code, §29-
6-1 et seq. or of this rule is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one hundred dollars nor more than five
hundred dollars, or imprisoned in the county jail for a period not to exceed
one year, or both fined and imprisoned. Jurisdiction under this subdivision
shall be in a court of record exercising criminal jurisdiction within the
county where the offense is committed.
(b) Any person who is convicted of a misdemeanor under W.Va. Code §29-6-
1 et seq. is, for a period of five years, ineligible for appointment to or
employment in a position in the classified or classified-exempt service, and
if he or she is an officer or employee of the state, shall forfeit his or her
present office or position.
Section 22. Grievance Procedure - An employee hired for permanent employment
may file a grievance with the Education and State Employees Grievance Board as
provided for in W.Va. Code, §29-6A-1 et seq.
Section 23. Training and Development [Top]
23.1. Each agency is responsible for providing functional training to
employees of the agency based upon the agency's needs and resources and the
employee's needs and capabilities. Selection of employees for training and
development shall ensure equal opportunity and shall not discriminate on the
basis of race, sex, age, religion, national origin, political affiliation,
disability or any other non-job related factors.
23.2. The Director of Personnel shall make available to the agencies
technical assistance in the areas of organization and human resource
development, needs assessment, determination of appropriate development
strategies, course design, training techniques, training evaluation and
coordination of training among the agencies.
23.3. The Director shall provide training courses on specific aspects of
personnel administration under Division of Personnel law and this rule, and
shall designate employees by class, or by duties, who must attend each type of
course.
23.4. The Director shall make available to the agencies training and
development opportunities that are broadly applicable to many classes in all
agencies. Employee selection for the training and development opportunities
shall be consistent with established agency and Division of Personnel
nomination procedures.
Section 24. Employee Representative Organization Bulletin Boards
A bulletin board of a limited size shall be provided for posting notices
of employee representative organizations. The bulletin boards shall be placed
in convenient and generally accessible locations in all workplaces where the
members of the organizations are employed. Provisions shall be made for
separate bulletin boards for each employee representative organization. The
cost of the bulletin boards shall be assumed by the requesting employee or the
employee's representative organization. The boards shall be used exclusively
by the employee representative organization and for organization purposes
only.
Section 25. Authority of the Board [Top]
The State Personnel Board is authorized to interpret the application of
this rule to any public body or entity and to establish by formal action
programs and projects for a maximum of one year outside of the provisions of
this rule, including, but not limited to, programs or projects designed to
respond to public disaster or emergency.
Section 26. Amendments
If and when it appears desirable in the interests of good
administration, the State Personnel Board, after public notice and public
hearing and legislative approval, may amend the rules as it becomes necessary.
END