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New York State

Department of Civil Service

Committed to Innovation, Quality and Excellence

Guidelines for the Administration

of Reductions in Force

Andrew M. Cuomo

Governor



NEW YORK STATE DEPARTMENT OF CIVIL SERVICE

GUIDELINES FOR THE ADMINISTRATION OF REDUCTIONS IN FORCE

January 2006

It is the policy of the New York State Department of Civil Service to provide reasonableaccommodation to ensure effective communication of information to individuals with disabilities. If you need an auxiliary aid or service to make this information available to you, please contact the

New York State Department of Civil Service Public Information Office at (518) 457 9375





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TABLE OF CONTENTS GLOSSARY OF COMMON LAYOFF TERMS................................................................................................... 2

USING THESE GUIDELINES............................................................................................................................ 4

AN INTRODUCTION TO LAYOFFS ................................................................................................................. 5

MAJOR PHASES AND TIME FRAMES FOR THE ADMINISTRATION OF LAYOFFS ................................... 8

PLANNING FOR LAYOFFS ............................................................................................................................ 10

ORGANIZING FOR LAYOFFS ........................................................................................................................13

RETAINMENT STRATEGIES.........................................................................................................................16

LAYOFF METHODS AND PROCEDURES ..................................................................................................... 17

HORIZONTAL REASSIGNMENT METHODS........... ............. ............. ............. .............. ............. ............. ...... 29

EMPLOYEE CHOICES.................................................................................................................................... 32

NOTIFICATIONS AND PAYROLL TRANSACTIONS.................................................................................... 35

APPENDIX A: A FLOW CHART OF THE LAYOFF PROCESS....................................................................... 37

APPENDIX A: CRITICAL CONCEPTS AND DEFINITIONS ......................................................................... 39

ADVERSE IMPACT ANALYSIS................................................................................................................... 40

BUMPING RIGHTS AND OPPORTUNITIES............ ............. ............. .............. ............. ............. ............. .... 41

CONTINGENT PERMANENT EMPLOYEES...... .............. ............. ............. ............. ............. .............. .......... 43

CONTINUOUS SERVICE..... ............. ............. ............. ............. .............. ............. ............. ............. ............. .. 46 DIRECT LINE FOR VERTICAL DISPLACEMENT ............ ............. ............. ............. .............. ............. ........ 47

LAYOFF....................................................................................................................................................... 48

LAYOFF UNITS ........................................................................................................................................... 49

LEAVES THE RIGHTS OF EMPLOYEES ON LEAVE........ ............. ............. .............. ............. ............. ...... 50

PART TIME EMPLOYEES........................................................................................................................... 53

PROCEDURES FOR EMPLOYEES WITHOUT RIGHTS............. ............. ............. ............. ............. ............. 57

PROCEDURES FOR PROBATIONERS ............. .............. ............. ............. ............. ............. .............. .......... 58

REASONABLE ACCOMMODATIONS ......................................................................................................... 59

REASSIGNMENTS....................................................................................................................................... 60

RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES WHOSE POSITIONS HAVE BEEN RECLASSIFIED ....................... 62

RETENTION RIGHTS .................................................................................................................................. 66

RETIREMENT.............................................................................................................................................. 67

RETREAT RIGHTS AND OPPORTUNITIES ................................................................................................ 68SENIORITY.................................................................................................................................................. 70

TENURE PROTECTION PURSUANT TO §75.1 (C)............... ............. .............. ............. ............. ............. .... 72

TRAINEES AND PUBLIC MANAGEMENT INTERNS............ ............. .............. ............. ............. ............. .... 73

TRANSFER OF VETERANS AND EXEMPT VOLUNTEER FIREMEN (§86)......... ............. ............. ............. 75

VETERANS, SPOUSES OF DISABLED VETERANS and BLIND EMPLOYEES (§85.7) ............. ............. .... 76

WORK LOCATIONS AND LAYOFF UNIT DESIGNATIONS ............. ............. .............. ............. ............. ...... 77

APPENDIX B: LAWS, RULES, REGULATIONS AND POLICIES GOVERNING LAYOFFS ......................... 79

Additional copies of these Guidelines are available from:

New York State Department of Civil ServiceDivision of Staffing ServicesPolicy and Program Analysis

Albany, NY 12239

These guidelines replace those issued February 1995 as

updated by TM 1 issued in March of 1995





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GLOSSARY OF COMMON LAYOFF TERMS Below are some of the terms commonly used in reduction in force situations. These definitions

are necessarily simplified, and some of these terms may be topics which have one or more pagesdevoted to their explanation elsewhere in the Guidelines.

ABOLITION OF POSITIONS the abolition of positions is a prerequisite to the termination of

permanent employees in the classified service for the reason of economy. (Attorney General’sdecision, 1976) Agencies may not layoff employees without abolishing positions.

AGENCY REDUCTION TRANSFER LIST a mandatory list established prior to the date of

layoff containing the names of employees in impacted titles at impacted locations ranked byseniority who are eligible for transfer to positions in other agencies in their current title and directline lower level titles.

"BUMP" is a commonly used term which does not appear in the laws or rules governing RIF’s.

In these guidelines it means vertical displacement within the competitive class from a higher leveltitle to a lower level title in a direct line of promotion.

CLASSIFIED SERVICE all offices and positions in the civil service not included in theunclassified service or "other service"; divided into four jurisdictional classes: competitive, non competitive, labor and exempt.

HORIZONTAL REASSIGNMENT in a layoff situation, an agency must offer more senior

employees who cannot retain a position in their current location an opportunity to be reassigned toanother location where they will displace less senior employees in the same title.

LAYOFF another term not in the law; it is used whenever an employee is separated or loses

status in his/her position as a result of the abolition or reduction of positions. For example,employees whose positions are not abolished but are “bumped” have been laid off.

LAYOFF UNIT separate units for suspension or demotion within which layoffs occur. Agencies

may be all one layoff unit, or may be subdivided into a number of units which are organizational, or

geographic, or differentiated by negotiating unit. President’s Regulation 72.1 lists the approvedlayoff units for all State agencies.

(LESLU) Least Senior in the Layoff Unit; this acronym is used in the "REDUCTIONS IN FORCEIN LAYOFF UNITS WITH MULTIPLE GEOGRAPHIC LOCATIONS" example.

PLACEMENT ROSTER a mandatory list containing the names of employees scheduled to be

laid off who are eligible to transfer in lieu of layoff. [This list is no longer used with the advent of Agency Reduction Transfer Lists.]

PREFERRED LIST a mandatory list established as of the date of layoff containing the names

of laid off employees ranked by layoff unit and seniority, for reinstatement to their layoff title anddirect line lower level titles, and/or other appropriate titles.

REDUCTION IN FORCE (RIF) another term for layoffs. REEMPLOYMENT ROSTER a mandatory list established as of the date of layoff containing

the names of laid off employees for appointment to titles other than those for which they are eligiblefor reinstatement from a preferred list. These generally are titles in their former occupational fieldas determined to be appropriate by the Department of Civil Service. The names are certified inrandom order without regard to seniority, status as a probationer or layoff unit.

RETENTION RIGHTS as used in these Guidelines this term means the rights of one employee

as compared to another to retain a position in a layoff. There are two factors which affect anyemployee’s retention rights. First, appointment status in the title, and second, seniority. Permanent





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employees have rights, while employees in the same title and layoff unit who are servingprovisionally or temporarily have none. Among permanent employees, those who are not onprobation have greater rights than those on probation, and employees who are equal in terms of this variable are then ranked by seniority.

RETREAT in a layoff situation, the displacement of the least senior/least retention rights

employee in the layoff unit in a lower level title when a higher level employee who is being laid off held that title on a permanent basis. Retreat is the only method of displacement available toemployees in the non competitive and labor classes. Only those competitive class employees whohave no bumping rights may retreat.

SENIORITY for purposes of layoff, seniority is defined as the date of original permanent

appointment in the classified service and continuous service since that date, modified for veterans/blind preference, if any. Seniority dates may be reconstructed for breaks in service for individuals reinstated after October 1985 pursuant to §80.3 and §80 a.3.

SENIORITY ROSTERS are computer generated reports produced by the Department of Civil

Service at the request of an agency for those titles which may be affected by layoffs. Each roster lists the item number, name, social security number, appointment status, seniority and veterans

status, etc. of each employee serving in a title, or on leave from a title, in the layoff unit.

Some terms are used interchangeably throughout, e.g. "layoffs" and "reductions in force." Someterms are used as a convenience, such as "reemployment lists" instead of "preferred lists andreemployment rosters," and "displacement" to mean "bumping and/or retreat."





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USING THESE GUIDELINES These Guidelines are intended to provide information to those who must administer a reduction

in force in New York State government. They focus primarily on the procedures, policies and issueswhich apply to permanent employees in the competitive, non competitive and labor jurisdictionalclasses who are affected by layoffs pursuant to §80 or §80 a of the Civil Service Law.

A number of cross references to related topics appear in the form (See “TOPIC”). In many casesthese are topics which appear in Appendix A, Critical Concepts and Definitions, which provideimportant additional information, or a more detailed discussion.

Briefly, the sections of the Guidelines are:

“An Introduction To Layoffs” provides a general discussion of the context within which layoffs

occur, and the effects a layoff can have on an agency.

“Major Phases and Time Frames” outlines the major components of a layoff, and suggests a

time frame for each component.

“Planning For Layoffs” and “Organizing For Layoffs” provide advice and information for agencies

about the initial stages in a work force reduction.

“Layoff Methods And Procedures” provides a narrative, step by step discussion of the processof carrying out a reduction in force.

“Retainment Strategies” discusses some methods which can be used, prior to layoff to retain

staff who may be affected by layoffs.

“Employee Choices” discusses the issues of verification of personnel information, and

communications with employees about their reassignment and displacement opportunities.

“Notifications and Payroll Transactions” describes the formal layoff notification process, the S

295.6 “ARTLs” process, S 295.5 "Layoff Card" process, and NYSTEP code information.

“Appendix A: Flow Chart of the Layoff Process" provides a quick and broad overview of the major steps in the layoff process

“Appendix A: Critical Concepts and Definitions” contains detailed discussions of some of themore complex issues which sometimes arise in layoff situations. Over time, a number of policydecisions have defined the rights of various groups of employees who may be affected by a layoff.These decisions are summarized under the topics which are listed on the first page of theappendix.

“Appendix B: References” lists the specific sections of law, rule and regulation, and other

sources of information about layoffs.





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AN INTRODUCTION TO LAYOFFS The procedures for conducting a layoff are extremely complex, and we have attempted to be as

detailed and comprehensive as possible in these Guidelines. What follows has been written,generally, from the perspective of managing a large complex layoff in a geographically diverseagency. However, new issues and questions will arise in most layoffs which are not dealt with here.

Agencies should contact their Staffing Services Representative first with any questions.

The Department of Civil Service is committed to guiding agency management in conducting alayoff whenever necessary.

It is important to understand the larger context within which any significant reduction in forcetakes place. This introductory chapter briefly discusses some considerations which should be keptin mind by those responsible for managing a layoff.

THE LEGAL CONTEXT OF LAYOFFS

Most employees have been hired through a merit system and have tenure. The laws, rules,regulations, and policies concerning layoffs provide an equitable due process for the separation of employees in layoff situations. Retention rights and seniority are the governing principles whichdictate both the precise steps which must be carried out, and the sequence and timing of thosesteps.

These principles also limit management's flexibility and commit management to specificmethods and procedures of layoff administration. Since the management of any agency isultimately responsible for carrying out layoffs, it is vital that these constraints be recognized andunderstood from the outset. It is recommended that those who must administer a layoff be familiar with the major laws and rules which address layoffs, and the critical concepts and definitions of theterms which will be used in the following.

Employees who are laid off pursuant to §80 or §80 a may ONLY be impacted as a result of theabolition of positions. A long standing (May 21, 1976) Attorney General's opinion rendered in a

letter to Howard Miller, then Deputy Director of the Division of Budget sets forth this requirement.The letter states in part:

"In view of the fact that the Civil Service Law makes express provisions for those cases in which

tenured employees may be suspended (e.g., §§ 72, 75[3]) and makes no provision for suspension

for economy reasons except in the context of abolition (i.e., §80) I must conclude that abolition of

positions is a necessary prerequisite. I find nothing to support a contrary view. Nor do I find any

basis for drawing different conclusions based on whether suspensions are the result of legislative

or executive action."

LAYOFFS ARE EMERGENCIES

Layoffs can and do occur for a number of reasons. Positions may be abolished for fiscal

reasons, as part of agency reorganizations, or due to the realignment of functions within andamong agencies, (e.g. “Cover ins” and transfers of functions). Although the majority of layoffsinvolve only a limited number of employees, times of major fiscal constraint can result in significantnumbers being affected by layoff. Such times are emergencies which interrupt the on goingbusiness of agencies and disrupt the lives of employees.

During such emergencies management’s normal role of identifying and carrying out objectives iseasily forgotten in the confusion. Management must often reevaluate the agency mission, andconsider how to carry it out during and after a layoff. To ensure that the work continues,





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management must keep the trust of employees so that employees can continue to be productivedespite the emergency.

Management must also assemble the resources required to administer a layoff. This may meanrealigning the duties of the human resources staff of the agency and setting up emergencymechanisms to ensure active coordination among all those involved.

THE EMPLOYEES' PERSPECTIVE

At the first hint of layoffs employees begin to worry. This is a time when the relationship betweenmanagement and employees will be tested. Distrust may grow and all too easily lead to a “them"versus "us" reaction by employees. Worry can quickly turn to panic; morale may go down whileabsenteeism goes up; some valuable employees may leave and work all but stop. Managementmust communicate early and often with employees to prevent this from happening. Even in theearly stages of a potential layoff, when nothing definite is known, a statement of concern frommanagement and a commitment to provide information as it becomes available is reassuring.

An employee who has been told that he/she will be laid off often goes through the same traumaas a person who has been told they have a terminal illness. Initial reactions of disbelief are

replaced with fear and anger. However, sooner or later most employees will begin to ask questionsabout their rights and their opportunities. Agency management must recognize these reactions intheir employees and be prepared to deal with them. The importance of communication channelswith employees and of providing constant and consistent information and support cannot beoveremphasized.

THE ROLE PLAYED BY OTHERS OUTSIDE THE ORGANIZATION

Layoffs usually involve several organizations outside of the agency. The Division of the Budget,the Department of Civil Service, and the Governor's Office of Employee Relations play vital roles insignificant layoff situations. Agency management will find it necessary to maintain contacts withthese agencies throughout the layoff process.

The negotiated agreements with the unions usually contain one or more articles about layoffs.By agreement, the Department of Civil Service provides the unions with copies of seniority rosters.Union staff will monitor agency decisions, and will ask for an explanation when any specificsituation appears to have an unexpected or unfair outcome. Not surprisingly, employees typicallyturn to their union representatives in layoff situations when they believe that management is notproviding them with accurate or timely information, or because they hope that the union canprevent a layoff from taking place. Like agency management, the unions can find themselvescaught between competing groups of employees who stand to win or lose depending on which waya particular layoff decision is made.

Layoffs are a time when the support of the union should be actively sought by an agency toassist in the equitable administration of the layoff process. Union representatives must be invited to

all employee information meetings, and labor management meetings should be held to discuss thelayoff situation as it evolves. The unions can be a valuable communication channel to employeeswho are reluctant to believe what agency management says.

Significant layoffs often bring media attention, and may arouse the interest of a number of special interest groups. Public relations staff should be thoroughly briefed on the layoff. It isnecessary that they understand the underlying concepts of layoffs, since mis statements will onlycontribute to the rumors and fears. In addition, Legislative staff will sometimes call with questionson behalf of their constituents, or attorneys representing employees may contact the agency.Accuracy and consistency of information is important.





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EACH LAYOFF IS UNIQUE

Despite the specificity of the law and the detailed information which follows in these Guidelines,each layoff will have its unique aspects which will require unique responses. As the times and the

politics of the moment change, it is necessary for each agency to adopt a layoff plan that meets theneeds of the agency's particular structure and mission. The plan must be as equitable as possible,must meet legal and contractual requirements, and be a plan that can be administered. However,what works well for one agency may not work for another, or even for the same agency in adifferent layoff situation.

It is very important that agency management develop a layoff plan based on the time

constraints and the procedures imposed by the layoff process.





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MAJOR PHASES AND TIME FRAMES

FOR THE ADMINISTRATION OF LAYOFFS One of the most important facts about layoffs is that adequate time must be provided to plan

and administer them effectively, equitably and legally. The steps in the layoff process must becarried out in a logical sequence to meet legal mandates and practical requirements and to providefor 20 days notice prior to the layoff date.

Before employees can be notified, they must be informed of their rights, understand how theywill be affected, and be given adequate time to make choices given the options that may beavailable to them. Before this can be done, the employees who will be affected must be identified,and their rights determined. While this may be a relatively simple process in a small layoff situation,in a large scale situation where a number of employees may be affected in a variety of titles andpositions existing in several geographic locations this can be a very complex process involving anumber of steps.

The following highlights these major steps and the time frames required for carrying out a largelayoff in multiple geographic locations. Under each major phase, the actions that must be carried

out are bulleted.

AGENCY LAYOFF PLANNING

· management makes preliminary decisions on programs, titles and numbers of positions; analysis of impact on protected classes

· notify Civil Service, GOER and unions of the potential for layoffs

· receive seniority rosters; update personnel records

· begin “appropriate titles decision” process with Civil Service

· assign and train human resource and affirmative action staff for layoffs

While a small layoff may require only a few days to a week for this and the following phases, a

large layoff will require a significantly longer period. This is primarily due to the “cascade effect” what happens to the more senior employees in higher level positions inevitably affects other employees serving in lower level positions, or in positions at other locations. Furthermore, layoffsvery often uncover a variety of problems: hold items that have expired, claims for veterans statusthat must be documented, changes in an employee’s status or location that have not beencorrectly recorded, etc. These may even require that new seniority rosters be prepared. In verylarge scale layoffs, it is more a matter of necessity than prudence to begin this phase as much as16 weeks prior to the date of layoff.

LAYOFF MOBILIZATION

· assign staff to deal specifically with the layoffs

· establish channels for layoff communications with Civil Service, GOER, unions,media and employees

· plan and schedule layoff meetings with employees, begin preparation of informationpackages

· determine and impose "freeze" date on discretionary personnel transactions

While a small scale layoff allows this phase to be handled easily as part of the previous step, ina large scale layoff the meetings have to be arranged; employees notified and scheduled to attend,usually in shifts over a period of several days; agency staff briefed to be able to conduct the





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meetings; Civil Service, Labor, and union representatives invited; various informational packagesprepared, etc. In large complex layoffs this phase can take several weeks. and should be initiatedat least 11 weeks prior to the date of layoff.

DETERMINATION OF ACCEPTANCE OF HORIZONTAL REASSIGNMENTS AND

DISPLACEMENTS

· prepare and send out information packages with preliminary notice of layoff,description of reassignment and displacement choices, and forms for employees toindicate choices

In small layoffs employees can be informed of their choices if any, by phone or in person and aconfirming letter sent once they have decided. However, in large layoffs, meetings must be held asa preliminary step serving several important functions: they make the fact of the layoffs “real” tomany employees for the first time and are the primary means for them to obtain the basicinformation they need to begin to think realistically about their displacement and relocation choices.Employees then need a reasonable amount of time to consult with their families, assess their options for reemployment, etc. in order to make their “life” decisions.

Again the “cascade effect” may necessitate other previously unaffected employees beingdisplaced and they will also need information about their rights and choices.

In these cases, this phase should be entered no later than 9 weeks prior to the date of layoff.

FINAL DATE FOR EMPLOYEE CHOICES

· based on choices, confirm acceptances in seniority order

· make final determinations of which employees will be affected by reassignment,displacement and layoff

· prepare final layoff letters, notices of reassignment, etc. for all affected employees

· notify Civil Service to confirm names of employees to be placed on reemploymentlists (S 295.5 PL/RR cards)

Since in a large layoff the more senior employees’ choices determine the choices available toless senior employees, and all choices must be made and confirmed before the final notices canbe prepared, this phase must be initiated no later than 6 weeks prior to the date of layoff.

NOTICES OF LAYOFF, DISPLACEMENT, REASSIGNMENT SENT TO EMPLOYEES

· 3 weeks prior to the date of layoff, all notices are sent.

NYSTEP transactions for all separations, layoffs, transfers in lieu of layoff, returns to hold items,displacements and relocation must be submitted in accordance with the pay period cut off

schedule based on the effective date of the action. Agencies have the capability to do their ownabolitions of positions and DOB will generate a report to verify this has occurred.





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PLANNING FOR LAYOFFS

PRELIMINARY DECISIONS

For the human resource manager perhaps the most difficult and important phase of the layoff process is when the first serious discussions about layoffs take place. Layoffs may be mandated by

political, fiscal or programmatic decisions which do not take into account the complexity of thelayoff process or the disruptive impact that even a small layoff can have on an agency's programs,organization and staff. As an administrator responsible for carrying out the layoffs, it is essentialduring these preliminary discussions that you be able to provide feedback on the actual effects anydecisions will have, including adverse impact on protected class groups. As the layoff proceeds thepreliminary decisions about which programs, which titles, and how many positions will usually haveto be modified. An adequate layoff plan should be prepared to deal with these modifications.

AFFIRMATIVE ACTION IMPLICATIONS

Seniority is a governing principle in all parts of the layoff process. Minorities and other protectedclasses may be among the more recently recruited and hired and, therefore, may be the

individuals affected if layoffs are targeted for titles or program areas in which affirmative actionefforts have been successful. It is important that the impact of any potential layoff be carefully andfully examined to determine adverse impact. The agency affirmative action officer should be amember of the team planning the layoffs.

The agency affirmative action officer can help identify the titles with high protected classrepresentation, and once the preliminary layoff plan is developed, conduct an adverse impactanalysis, and help identify alternative plans with less impact which still meet budgetary andprogrammatic needs. (See Appendix A ADVERSE IMPACT ANALYSIS)

SENIORITY ROSTERS AND PERSONNEL INFORMATION

Seniority rosters are listings of the positions and employees in a specific title or titles in a layoff

unit of an agency. In simple terms, all the employees who are serving in, or who have rights toreturn to, the title in that layoff unit are ranked, with those having the least rights at the top, and theemployee with the most right (seniority) to retain a position in the title at the bottom. The purpose of this listing, which is generated by the Department of Civil Service from the records in the NYSTEPsystem, is to verify that critical employee records are correct, and to serve as the basis for agencymanagement to determine the relative retention rights of the employees in each layoff title in thelayoff unit. After the layoff, the seniority roster also serves as the official record. It is essential thatseniority rosters be requested as early as possible for each title in which layoffs may occur in theagency.

Unofficial titles or "specialties" are grouped together by specialty on the seniority roster.Employees in positions designated as 55(b) or (c) or NC Ф will appear on a separate roster

because they are in a different jurisdictional class. Employees in traineeships, however, will appear ranked on the same seniority roster despite having slightly different titles and title codes. (SeeAppendix A TRAINEES AND PUBLIC MANAGEMENT INTERNS.

To confirm information regarding position attributes (e.g., specialty, NC Ф, 55(b) or (c)designation) refer to the Position Availability panel in NYSTEP. In addition there are three NYSTEPReports that will help with data verification CSPS Positions Characteristics, the Employee ListingReport and the Employee Personnel Information Verification Report.

Layoffs frequently bring to light errors in personnel records or incorrect personnel transactionsthat have occurred in the past. Because the responsibility for identifying which employees will be





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laid off lies with the agency, it is incumbent on the agency to ensure that personnel recordsaccurately reflect the layoff rights of each employee.

The first step to ensure that the records are correct is to order seniority rosters from CivilService for all titles which will or may be affected. Seniority rosters will be provided in title codeorder unless the agency specifies alphabetic order.

Seniority rosters reflect all NYSTEP information submitted as of the payroll dates at the top of each page. A total of five copies may be produced: one each for the agency Personnel Officer, for CSEA, for PEF, and, if requested, for the agency’s Staffing Services Representative, and aconfidential copy for the agency’s Affirmative Action Officer.

Because of the lag payroll, agencies must manually update the seniority roster to change or add/delete information on employees whose status has changed or who have been hired,separated or placed on leave since the payroll dates indicated. On the roster, there may also beother differences between agency records and Civil Service records on some employees. (For example, agency records may indicate an employee is a veteran while the seniority roster showsnon veteran.) In these cases the agency should immediately write to Civil Service to correct thepersonnel records and must enclose any required documentation, e.g., copies of DD 214,

appointment letters, probationary reports, etc.Finally, the seniority roster ranking of any employees currently on probation who will complete

probation prior to the date of layoff must be manually changed to reflect their correct rank as of thelayoff date.

READING SENIORITY ROSTERS

a. Seniority rosters are provided for each specified title within each specified layoff unit ineither title code order, or alphabetic order.

b. The seniority roster lists all item numbers in a title in the layoff unit as follows:

1. Vacancies2. Non permanent employees3. Permanent and contingent permanent employees who are on probation4. Permanent and contingent permanent employees who are not on probation.

c. Some names may appear more than once. Permanent employees on leave from aposition must be considered with employees actually serving in a position. (SeeAppendix A LEAVES THE RIGHTS OF EMPLOYEES ON LEAVE ) The seniority roster willshow both a vacant position with encumbering information and the encumberingemployee's name followed by (LV) in the appropriate rank on the seniority roster.Item numbers will be repeated where items are filled part time, or where employeesare on leave.

The codes used under "APPT TYPE" are defined as follows:

VA = Vacant PMP = Permanent probationer

PV = Provisional CO = Contingent Permanent not on probation

TP = Temporary COP = Contingent Permanent probationer

PM = Permanent not on probation

Probationers and fully permanent employees are grouped separately and are ranked amongthemselves in seniority order (See column headed "Adj Sen Date"). This date includes adjustmentsfor veterans status. The column labeled "Vets Status" indicates the payroll information on veterans.(See Appendix A VETERANS, SPOUSE OF DISABLED VETERANS AND BLIND EMPLOYEES (§85.7))





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All contingent permanent employees have the same layoff rights as permanent employees.Contingent permanent employees being laid off who are not on probation have no rights to returnto their items that are being held for them for the purposes of return of incumbent. (See AppendixA CONTINGENT PERMANENT EMPLOYEES)

Blind employees will appear as the most senior employees among all employees with equal

retention rights in the title in that layoff unit. For example, a blind probationer is the most senior of all probationers in that title regardless of date of original permanent appointment, but still has lessretention rights than non blind permanent employees in the title who are not on probation. (SeeAppendix A SENIORITY)

Note that under Civil Service Law and in our recommended layoff procedures all non permanentemployees in a title are equally at risk in layoff situations since they have no retention rights or seniority. (See Appendix A PROCEDURES FOR EMPLOYEES WITHOUT RIGHTS). Therefore, therank of non permanent employees on a seniority roster may be ignored when such employees areterminated. However, this does not preclude an agency from using date of appointment to theclassified service as an equitable mechanism for determining which non permanent employees willbe terminated when some will be retained.

NOTE: The earmark status of an item is irrelevant to the horizontal reassignment,suspension and vertical displacement process and to the rights of employees to retain aposition.

NOTE: Same or Similar Positions Civil Service law §80 says, "…suspension or demotion...

[shall occur] ...among incumbents holding the same or similar positions…" In the vast

majority of cases we have always defined this to mean positions in the same title, and

therefore the programming that produces seniority rosters uses title code as one of the'delimiters' when creating one. However, there are exceptions. In some cases employees indifferent titles must be considered together. See for example Appendix A TRAINEES AND

PUBLIC MANAGEMENT INTERNS. In other cases employees in the same title must beconsidered separately. See for example Appendix A PART TIME EMPLOYEES.

All questions on seniority rosters should be directed to your Staffing Services Representative inthe Department of Civil Service.





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ORGANIZING FOR LAYOFFS Large scale layoffs usually require the human resources staff of an agency be placed on an

"emergency footing" to carry out the layoff process. Although each layoff is unique and eachagency's management must determine their own best response, the following must always beconsidered:

STAFF RESOURCES

Specific individuals should be freed from other duties and assigned full time to administer thelayoffs. These individuals should be trained as required, and provided a separate place to work inorder to minimize disruption of other on going personnel/human resource functions.

CHANNELS OF COMMUNICATION

Specific individuals should be designated to provide layoff information to management,employees, unions, Civil Service, GOER and the media. Meetings should be held regularly tocoordinate information.

DEALING WITH THE EMPLOYEES Despite all efforts to keep things quiet until definite decisions have been made rumors of layoffs

always leak out. These rumors often dramatize and exaggerate the "bad news." Unchecked theymay cause morale to crash, absenteeism and turnover to soar, and productive work to stop.

It is essential that management deal realistically and openly with employees from the start.

Memos or bulletins should be provided to affected employees as soon as any information isavailable and meetings should be held with the management staff of the programs being affected.A telephone hot line for employee questions should be set up.

LAYOFF INFORMATION PACKAGES AND LAYOFF MEETINGS

One of the first tasks of the staff assigned to handle the layoffs should be to begin to prepare

information packages to be sent to employees.It may be necessary to send two or more informational packages to employees as the layoff

progresses depending upon what is known, and on the stage of the layoff. The followinginformation will need to be included in these packages at some point:

· An explanation of why the layoffs are necessary.

· A statement of which titles/locations are expected to be affected.

· A form confirming each employees' current title and status and any other relevantpersonnel information (See the discussion of Employee Personnel InformationVerification and Location Preference Sheets under the topic EMPLOYEE CHOICES).

· An explanation of horizontal reassignments.

· An explanation of vertical displacement (i.e., bumping) and/or retreat.

· An explanation of the process which will be used to ascertain the choices (if any)employees may have to be reassigned or to accept displacement to a lower levelposition.

· Information about the locations (actual or potential) to which employees will (or may)have an opportunity to horizontally reassign and/or vertically displace.





January 2006 14

· A form to be completed by each employee indicating those locations (in rank order)he/she would accept (separately for reassignment and displacement), and which mustbe signed by the employee.

· A deadline date by which the employees' choices must be received in the agency, andan explanation of what will happen if employees are late or if they refuse to return their choices.

· Names and phone numbers of individuals in the agency who will answer questions. Wedo not recommend using e mail for this as the questions and situations will usuallyrequire full, in person, explanations

· The publications on reemployment list rights, health insurance and unemploymentinsurance, etc. listed in the most recent General Information Bulletin entitled “SeparationPackages.”

· S 295.6 (Agency Reduction Transfer Card) and an explanation of its use, and adviceabout indicating grade levels and counties acceptable for transfer opportunities prior tolayoff.

· S 295.5 (Preferred List/Reemployment Roster Eligible Card) and an explanation of itsuse, and advice about indicating counties acceptable for reemployment in the event of layoff.

· A letter signed by the agency head explaining the reasons for the layoff, and date onwhich they are expected to occur. This is not the official individual notice which must besent out 3 weeks before the layoff.

LAYOFF MEETINGS

In large scale layoffs it is usually necessary and appropriate to schedule group, rather thanindividual, layoff meetings with employees in order to communicate management's intent, to

provide employees with information they need to make intelligent choices, and to explain theadministration of the layoffs.

These meetings usually include:

· Agency representatives who explain the "who" and "why" of the layoff.

· Civil Service Representatives who explain the technical aspects of layoffs, the variousreemployment lists, and describe the impact on health insurance benefits, etc.

· Union representatives who describe any impact on negotiated benefits.

· Department of Labor representatives who provide information on unemploymentbenefits.

AGENCY REDUCTION TRANSFER LISTS When agencies have a relatively firm idea of the titles which will be affected, they should

contact the Department of Civil Service to discuss the establishment of Agency Reduction Transfer List(s). By law (See CSL §78 ) the names of employees who will be affected have the right to enter their names into a mandatory list system called the Agency Reduction Transfer List (ARTL).Eligibility to participate in the ARTL is voluntary and is open to permanent competitive employees.Permanent non competitive and labor class employees in impacted titles may also be eligible if they have completed at least one year of permanent continuous service. Non competitive





January 2006 15

employees who are serving in policy influencing or confidential positions are not eligible for thetransfer program.

· This program offers permanent appointed employees in titles affected by workforcereductions the opportunity to be transferred to positions in other agencies in their current titleor in lower level direct line titles, or to positions in titles determined to be comparable by the

Department of Civil Service.ARTL cards must be provided to the Department of Civil Service at least 20 days prior to the date

of layoff. Even if it is not known specifically which employees will ultimately be affected, ARTLs for all employees in targeted titles can be established.

For more information on these lists see the State Personnel Management Manual section2200 Separations and Leaves, and the brochure "Employee Guide for Agency Reduction Transfer Lists"

DIRECT LINE TITLES AND APPROPRIATE TITLES INFORMATION

You should also provide to Civil Service a list of all affected titles in which permanentemployees are serving so the process to determine the preferred list and reemployment roster appropriate titles can be initiated. Include any recommendations on agency titles which shouldbe considered to be direct line titles (See Appendix A DIRECT LINE FOR VERTICAL

DISPLACEMENT) or titles which should be considered as appropriate titles.

IMPOSING A "FREEZE" ON DISCRETIONARY PERSONNEL TRANSACTIONS

Agencies should avoid the layoff of employees where possible by transfers or reassignments toother funding sources. (See RETAINMENT STRATEGIES) Such transactions must be accomplishedcarefully and equitably in order to avoid the appearances of favoritism, and the possibility of Article78 proceedings, which could potentially delay the layoff process.

To ensure that employees are treated equitably and consistently, and to be able to effectivelyadminister the layoffs, at some point it will be necessary to announce a "freeze" on all discretionarypersonnel transactions in the titles being affected. This means that from the freeze date until thedate of layoff, the agency will not reassign potentially affected individual employees to differentgeographic locations, promote or appoint individuals in affected titles, end probationary periodsearly, or reclassify affected titles.





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RETAINMENT STRATEGIES

Whenever possible agencies should make every effort to retain employees to preventlayoffs. Retainment is an effort to mitigate the possible layoff of valuable State employees bymoving them to positions in the State service where the employees' service and experienceare needed. Retainment efforts may include transfers, reassignments, retraining, fundingsource changes, special holdings of examinations, as well as the creation of agency reductiontransfer lists.

Civil Service Law §81 a and 81 b require that agencies provide the names of employees tothe Department of Civil Service at least 20 days prior to layoff. Employees affected can beplaced on ARTLs earlier than 20 days prior to layoff, and employees who may not be directlyaffected can volunteer for ARTL status at that time as well. The earlier the retainment processbegins, the more effective it will be. The 20 day statutory requirement is the minimum – if at allpossible, agencies should begin the process at the earliest possible date.

The Department of Civil Service will permit certain transfers and reassignments within theagency facing Reductions in Force in the face of pre existing reemployment lists. The intent of

this policy is to permit the retainment of agency staff serving in positions identified for abolitionby moving those staff into positions which the agency needs to fill in order to maintain or improve services. (See Policy Bulletin #98 01, dated September 25, 1998, in Sections 1825and 1840 of your State Personnel Management Manual).

Agencies seeking to place employees who are in positions expected to be affected byabolition should contact the Career Mobility Office (CMO) who will have information aboutother agencies who may be recruiting and hiring. The (CMO) and the local Department of Labor Community Services Center may also be able to assist in identifying job possibilities for which employees may qualify.

Contact your Staffing Services Representative to discuss these and other retainmentstrategies.





January 2006 17

LAYOFF METHODS AND PROCEDURES

THE AGENCY LAYOFF PLAN

Once the decisions on programs, titles and positions are made, and in order to determine whichemployees will be affected, who will have retention and/or horizontal reassignment rights, and who

will be laid off and will have vertical displacement rights (bumping or retreat), a layoff plan shouldbe created listing all the titles in each affected title series, and up dated seniority rosters should beprepared.

By law, all layoffs occur within a distinct and defined layoff unit. Most agencies are encompassedby one layoff unit. Some agencies have several or many regional or facility based units. The CivilService President’s Regulation 72.1 lists the approved units.

Start the process with the highest level titles which will be affected. Decisions to abolish one or more positions at the highest level are likely to affect, through returns to hold items, verticalbumping, or retreat, employees at the next lower level. These employees will, in turn, affect thoseemployees in the next lower level title, etc.

Next, for competitive class positions, look at the direct line lower level titles.Finally, where thereare no lower level direct line titles (e.g. entry level competitive class, or non competitive classpositions) the employees' personnel histories must be reviewed to determine which lower leveltitles may be affected by retreat.

An Outline of the Layoff Process

1. Begin with the highest level layoff title.

2. Identify the total number of positions to be abolished.

3. Identify the number of positions to be abolished in each geographic location within the layoff unit, and which employees will be affected.

4. If the employees who will be laid off and the locations of the positions to be abolished do not

match, use the Equal Numbers Method or a method approved by the Department of CivilService to carry out the horizontal reassignment phase of the layoff before going to step 5.(See the discussion of Horizontal Reassignment Methods below)

5. Determine if employees who are not being reassigned and who will be laid off are eligible for vertical displacements (bump or retreat).

6. Determine if employees are willing to accept the horizontal reassignments and verticaldisplacements identified in steps 4 and 5, and prepare appropriate notices, S 295.5 forms,etc…

7. Repeat this process using the agency layoff plan for each title being affected.

Each of these steps is discussed in detail below.

Regardless of which specific positions (item numbers) have been identified by management for abolition, certain employees will often have a greater right to maintain a position in a specificlocation than other employees. These relative rights are referred to as employees’ retention rights.

NOTE: “Earmarks” have no relevance when determining which positions are identified for layoff





January 2006 18

Permanent competitive class, non competitive class and labor class employees who havetenure protection pursuant to §75 of the Civil Service Law, have their retention rights, displacementrights and reemployment list rights determined by either §80 or §80 a of the Civil Service Law.When all positions in a title are abolished, all employees in the title are laid off. But when only someof the positions in a title are abolished, and some of positions will remain, which employees have

rights to retain a position in their current location, and which must be offered horizontalreassignment, and which must be laid off is determined by the relative retention rights and senioritydates of all employees in the title as specified in the appropriate section of these laws.

NOTE: Employees do not have rights to retain a specific position; rather, they have rightsunder the law to retain their status in a title.

Non permanent employees, employees in the unclassified service or exempt class employees,and employees in positions in the non competitive class designated as policy influencing or confidential have no layoff retention rights, nor do they have rights to have their names placed on

preferred lists and reemployment rosters. Such employees whose positions are abolished shouldbe terminated and returned to any available hold items.

Some employees may be serving in "no rights" positions as the result of the reclassification of their former titles, and may have tenure protection and/or layoff and reemployment list rights whichaccrue to them as individuals from their former titles. (See Appendix A RECLASSIFICATIONS THE

RIGHTS OF EMPLOYEES WHOSE POSITIONS HAVE BEEN RECLASSIFIED) Further, someemployees who are veterans or exempt volunteer firemen may have rights to transfer. (SeeAppendix A TRANSFER OF VETERANS AND EXEMPT VOLUNTEER FIREMEN (§86))

REDUCTIONS IN FORCE IN LAYOFF UNITS IN ONLY ONE GEOGRAPHIC LOCATION

In most layoff situations the geographic location of the employees to be laid off and thegeographic location of the positions to be abolished are the same. (Those administering a layoff should understand the principles in the following before reading the material on REDUCTIONS IN

FORCE IN LAYOFF UNITS WITH MULTIPLE GEOGRAPHIC LOCATIONS which follows.)For clarity, the following discussion is limited to reductions in force among permanent employeesin the competitive class. Although most of these steps, with the exception of bumping, also apply topermanent non competitive class and labor class employees, some additional steps for these latter employees are required. (See Appendix A TENURE PROTECTION PURSUANT TO §75.1(c).

Referring to your agency layoff plan, identify the highest level titles in which positions will beabolished, and the number of positions to be abolished in that title. Use the updated seniority roster to identify employees' retention rights and seniority.

Up to three categories of employees may exist in each title identified. Each category and therelative retention standing between each category of employees is discussed below:

1. Non permanent Employees Identify all temporary (TP) and provisional (PV) employees.

These employees have no retention rights, no rights to preferred list status, and must besuspended before permanent or permanent probationary employees serving in the sametitle. (See Appendix A PROCEDURES FOR EMPLOYEES WITHOUT RIGHTS)

2. Probationary Employees Next identify permanent and contingent permanent employees

who will be serving in probationary status as of the date of layoff (PMP and COPrespectively). Probationary employees have less rights to retain a position than permanentemployees who are not on probation. They are, however, entitled to reemployment liststatus if laid off, and may also be entitled to exercise vertical displacement rights if they arenot on leave from a hold item, and have had 5 years of continuous service. If any of these





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employees will complete probation before the date of layoff, you must consider them as partof category 3 below. (See Appendix A PROCEDURES FOR PROBATIONERS)

3. Permanent and Contingent Permanent Employees Identify employees serving in

permanent (PM) and contingent permanent (CO) status who are not on probation, or whowill complete probation prior to the date of layoff. These employees have the most retention

rights. They are entitled to exercise vertical displacement rights (bumping or retreat). If suspended their names will be placed on a reemployment list.

Based on the number of filled positions to be abolished, count down on the seniority roster untila sufficient number of positions have been identified and draw a line. (Vacant positions may or maynot be included in the positions to be abolished.) Note that vacant and temporarily vacant itemnumbers appear at the top of the seniority roster. The names of employees who are on leave willalso appear appropriately ranked among the names of employees who are actually serving in aposition; employees on leave have the same rights, and must be accorded their appropriateretention and displacement rights from their hold items.

Depending on the category of retention rights of the employees whose names appear above theline, carry out the appropriate steps below:

Step 1 Suspension of Competitive Class Non permanent Employees

a. If any of these non permanent employees are on leave from other permanent positions,restore them to their hold items.

b. If any of these employees are on leave from other agencies, notify the agencies that theemployees will be laid off and may be returning.

c. If employees have no hold items, prepare a notice of separation (to be received threeweeks prior to actual termination date). If the number of non permanent employees isequal to or is greater than the total number of positions to be abolished in the layoff title,no further action for the title is necessary. If the number of non permanent employees isless than the total number of positions to be abolished, proceed to the next step.

Step 2 Suspension of Competitive Class Permanent and Contingent Permanent

Probationers

Identify the specific probationers (beginning with the least senior) to be laid off.

a. Restore them to their hold items.

b. If these employees are on leave from other agencies notify the agency personnel officer that the employee will be laid off and may be returning.

c. Complete form S 295.5 for each employee and indicate the title and salary grade of thehold item to which they are restored (if any).

d. Only where probationers do not have a hold item can they be considered for verticaldisplacement opportunities. Probationers without hold items may only bump or retreat if

they have 5 years of continuous service. (See Step 3 below).If the number of positions to be abolished is greater than the number of employees laid off in

Steps 1 and 2, proceed to Step 3.





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Step 3 Suspension of Competitive Class Permanent and Contingent Permanent Employees

Who Are Not on Probation.

Identify the specific employees who will be laid off, and beginning with the most senior determine

his/her displacement rights. Note that if the employee is contingent permanent and on leave from aposition as provided for in Rule 4.11, the employee does not have a right to return to that position

as a result of the abolition of the position, or displacement. (See Appendix A CONTINGENTPERMANENT EMPLOYEES)





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VERTICAL DISPLACEMENT

Bumping

"Bumping" means to displace another employee occupying a position in the next lower level

direct line title (See Appendix A DIRECT LINE FOR VERTICAL DISPLACEMENT) in the layoff unit.

In order to determine bumping rights you will need to refer to the seniority rosters for the lower leveldirect line titles. Only competitive class employees can “bump” since, by definition, direct lines of promotion exist only in the competitive class.

1. Determine the direct line titles below the layoff title in question.

2. Beginning with the most senior employee to be laid off (who is not on probation*), determineif there are positions** in the layoff unit in the next lower level title in direct line of promotion.

*NOTE: Employees who are on probation may not bump or retreat if they have hold items toreturn to. Probationers without hold items may bump or retreat only if they have 5 years of continuous service.

**NOTE: Where positions are also being abolished at the lower level, consider only those

positions which will exist after the date of layoff.NOTE: The earmark status of an item is irrelevant to the horizontal reassignment,suspension and vertical displacement process and to the rights of employees to retain aposition.

3. If all titles in the next lower level title are vacant or are being abolished, or if such positionsdo not exist, determine if there are positions in the next lower level title in the layoff unit.

If no lower level titles exist in the direct promotion line in the layoff unit, or if all are vacant,competitive class employees have no rights* to bump. Skip steps 4 through 7 below anddetermine if these employees have rights to retreat (See below).

*NOTE: Where there are vacant positions, the agency may offer reinstatement to those

positions. Employees who accept such a discretionary reinstatement must waive their rightsto bump or retreat. However, agencies should develop a consistent policy on whether suchreinstatements will be offered to all employees.

NOTE: The employee need not have ever held a lower level position in the title series to beeligible to bump.

4. Assuming such lower level positions exist, determine if they are occupied. "Occupied"includes positions in which non permanent employees are serving.

5. If the most senior bumping employee is not a probationer, he/she may bump:

· any non permanent employee. If there are none however, then

· the least senior probationer even if that probationer has an earlier seniority date. If

there are none, then,

· the least senior employee in the lower level title provided the displacing employeehas an earlier seniority date. If the bumping employee has the same or later senioritydate, bumping cannot occur, nor is the employee eligible to retreat.





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6. If the bumping employee is a probationer without a hold and has five years of continuous,satisfactory service, he/she may bump

· any non permanent employee. If there are none however, then

· the least senior probationer.NOTE: A probationer may never bump an employee who has completed probation.

7. Complete the above steps for all employees in seniority order in all competitive class titlesbeing affected by layoff. Whether or not an employee has rights to bump, or accepts or refuses an opportunity to bump, his/her name will be placed on a preferred list andreemployment roster. Complete form S 295.5 for each employee, indicating the title andsalary grade of any lower position to which bumping will occur.

NOTE: See also the discussion under Appendix A BUMPING RIGHTS ANDOPPORTUNITIES.

Retreat "Retreat" means to displace an employee serving in a position in the layoff unit in the last lower

level title to which the employee was appointed on a permanent basis. For competitive classemployees, retreat can occur only when no lower level positions exist in a direct line of promotionin the layoff unit, or when the lower level positions exist but are unoccupied. Competitive classemployees who had a right to bump but were unable to do so because they lacked sufficientretention rights or seniority, are not eligible to retreat.

In order to determine retreat rights you will need to refer to each employee's employmenthistory, and to seniority rosters for the titles the retreating employees were last appointed to on apermanent basis at a lower level. (You should "skip over" any intervening titles which are at an

employee's current level or higher, or any titles in which the employee served on a non permanent

basis). Whether an employee has had continuous service since this appointment is not relevant.1. Beginning with the most senior employee being suspended or displaced, determine if the

title to which the employee was last permanently appointed at a lower level (in either thecompetitive, noncompetitive or labor class) exists in the layoff unit, and if it is currentlyoccupied. The employee need not have actually served in a position in the title to be eligible

to retreat. "Occupied" includes positions in which non permanent employees are serving. If the title does not exist or is not occupied or is being abolished, the employee has no right toretreat.

2. If title is occupied, identify the least retention rights/least senior employee in the lower leveltitle.

3. If the most senior retreating employee is not a probationer, he/she may displace first any

non permanent employee, secondly the least senior probationer even if that probationer has an earlier seniority date, and third the least senior in the title provided he/she has anearlier seniority date. If his/her seniority date is the same or later, retreat cannot occur for that employee.

4. A probationer without a hold and with five years of continuous service may displace first anynon permanent employee, and second the least senior probationer. He/she may never displace an employee who has completed probation.





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5. Repeat steps 1 through 4 for all employees in seniority order until all employees in the layoff title have been accounted for.

6. Whether or not an employee has a right to retreat, or accepts a retreat opportunity, his/her name will be placed on a preferred list and reemployment roster. Complete form S 295.5 for each employee, indicating the title and salary grade of any lower position to which retreat

will occur.

NOTE: Where the positions have been reclassified, employees may only retreat providedthere have been no substantial changes in the duties of the positions.

NOTE: See also the discussion under Appendix A RETREAT RIGHTS AND OPPORTUNITIES.

Repeat these steps for each succeeding lower level title using your agency layoff plan. Note theseniority roster as each title is completed.

Develop listings, categorizing the employees who have been affected and how they have beenaffected, (i.e., restoration to hold items, whether they exercised displacement rights, whether theywere or were not entitled to reemployment list status). This will assist in developing the subsequentseparation letters and ensuring that all employees are accounted for.

If the employees whose positions are identified for abolition are not the employees with the leastretention rights and least seniority, as of the date of layoff it will be necessary to line change theemployees with rights to retain a position into items which are not being abolished.

Employees who are on leave but have had their hold items abolished may be eligible to havetheir holds reassigned to other positions. Where lower level employees are serving permanently inpositions affected by the assignment of such hold item rights, they do not lose their jobs, but havetheir status changed from "permanent" to "contingent permanent." These employees have norights to displace to a lower level (since there has been no loss of salary or permanency); however,they will have their names placed on reemployment lists in inactive status in order to "document"that their change in status came about as the result of an abolition of a position. If the incumbentsubsequently returns, the contingent permanent employee is then given full preferred list andreemployment roster rights. (See Appendix A LEAVES THE RIGHTS OF EMPLOYEES ON LEAVE )

Finally, on the seniority roster note when the layoff information was transmitted to Civil Serviceand what payroll transactions need to be prepared. These listings serve as documentation for theactions taken.

REDUCTIONS IN FORCE IN LAYOFF UNITS WITH MULTIPLE GEOGRAPHIC LOCATIONS

Reductions in force which occur in layoff units covering multiple geographic locations areinevitably more complex than those which affect only a single location.

Generally all agencies (except see below) must apply the basic concepts of retention rights andseniority to all employees in the affected title in the county first, then to all employees in the title

within the layoff unit to determine which employees will retain their current positions, which mustbe offered horizontal reassignment to a position elsewhere in the layoff unit and which will besuspended (and offered displacement, if available).

NOTE: This “county first, layoff unit second” principle applies only to the horizontalreassignment process. By law and rule displacement must occur to the position held by theleast senior in the entire layoff unit.





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EXAMPLE:

Assume in Washington County an agency has two organizational units, A and B. In A, 5 out of 10 positions in a title are slated for abolition. The agency must create a list of all employees in thetitle in Washington County, and the five least retention rights, least senior employees are identifiedfor layoff whether they currently work in unit A or unit B.

If there are other employees in the layoff unit who have less retention rights / seniority thanthese five, they are laid off and the more rights / senior employee(s) are offered horizontalreassignment to those locations.

However, because of the appointing authority structures of the Office of Mental Hygiene and theOffice of Mental Retardation and Developmental Disabilities, they must first determine who will beaffected in the facility, and then secondarily in the entire layoff unit.

Using the case above, assume an OMH facility in Washington County is abolishing 5 out of 10positions in a title. Only those employees in the title in that facility are looked at to determine which5 will be affected. Then, the retention rights / seniority of these 5 are compared with all employeesin the title in the entire layoff unit to determine if any facility employees have rights to be horizontallyreassigned to another facility. (See Appendix A WORK LOCATIONS AND LAYOFF UNIT

DESIGNATIONS)

The Civil Service Law and Rules require that employees with the greatest retention rights /seniority retain positions that will be available after the date of layoff. Since these positions may bein other locations within the layoff unit, employees who have a right to be retained may have to beoffered horizontal reassignments.

The basic difference among the methods used to horizontally reassign employees is in thenumber of choices which employees must be offered. Historically, agencies have used methodsranging from offering each employee only one choice the position held by the least retention

right/least senior employee, to offering each employee the opportunity to be reassigned to any

position held by any employee with lesser rights. In addition, the number of choices can beexpanded as follows:

· Where vacancies in the title will exist after the date of layoff, agencies can choose toinclude these vacancies among the positions available for reassignment.

· Where there are non permanent employees in the title all their positions (which canbe filled on a permanent basis) must be included in the available choices.

Any employee who refuses horizontal reassignment is not entitled to exercise vertical

displacement (bump or retreat) rights. However, employees who have refused horizontalreassignment to a different county will have their names placed on reemployment lists. Complete

a form S 295.5 for each of these employees and indicate in the remarks section the county towhich they refused horizontal reassignment.

In carrying out horizontal reassignments the highest level layoff titles must be dealt with first,

since the effects of the horizontal reassignments may lead to other employees exercising verticaldisplacement rights or exercising their rights to return to a hold item.





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Below are the specific procedures to be used in carrying out a layoff for a title which exists inmore than one geographic location. For purposes of these procedures, all employees in a countyare considered to be in the same geographic location.

For clarity, the following procedures describe the simplest case in which no vacancies areavailable, and all employees are permanent employees who are not on probation in the title being

affected.All agencies must follow these procedures through Step 6. Step 7 describes the point at which

employees are offered horizontal reassignments. Since each agency may face a uniquecircumstance, each may determine how many choices employees will have, and the process theywill use to offer these choices. However, once these determinations have been made, they

must be applied consistently to all employees in all titles.





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Steps 7 through 9 illustrate the Equal Numbers Method of carrying out the horizontal

reassignment process. For a complete discussion of the Equal Numbers Method and other methods for carrying out a horizontal reassignment. (See Appendix A HORIZONTALREASSIGNMENT METHODS)

STEP BY STEP INSTRUCTIONS:

1. Determine the following:

· The total number of positions to be abolished in the title in the layoff unit.

· The geographic locations of the positions to be abolished.

· The specific number of positions to be abolished in each geographic location in thelayoff unit.

2. On the seniority roster for the layoff unit count down the total number of positions whichwill be abolished and draw a line. In some cases agencies determine this number by thereductions that will take place in each location.Remember it is NOT necessarily the specific positions which have been selected for abolition that determines which employees will be affected.

NOTE: Permanent employees whose positions are to be abolished in a specific geographiclocation must be offered the opportunity to displace any non permanent employees at any

location in the layoff unit.)

3. Based on the rank on the layoff unit seniority roster, create a seniority list for eachgeographic location.

4. On each geographic seniority list where positions will be abolished count down acorresponding number of positions and draw a line. In locations where no positions willbe abolished, draw a line above the first position on the geographic seniority list.

5. Three groups of employees can now be identified:

Note: LESLU = Least senior in the layoff unit

· Group 1 Employees whose names appear above the line on both the layoff unit

seniority roster (LESLU) and above the line on the geographic seniority list. Their positions will be abolished and they will be laid off.

· Group 2 Employees whose names appear above the line on the layoff unit

seniority roster (LESLU) but below the line on the geographic seniority list. Their

positions will not be abolished, but they may be laid off.

· Group 3 Employees whose names appear below the line on the layoff unit

seniority roster, (i.e. not identified as LESLU) but above the line on the geographic

seniority list. Their positions will be abolished, but they are not being laid off.

6. Lay off all employees in Group 1, since they are least senior (LESLU) and their positionswill be abolished. Determine their rights to return to a hold item, or to bump or retreatand prepare forms S 295.5 for each employee who will have reemployment list rights.

7. Beginning with the most senior employee identified in Group 3 above, and using theemployee's ranked geographic location preferences, (See EMPLOYEE CHOICES), offer horizontal reassignment to any other geographic location where a Group 2 employee isserving.





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a. If the most senior Group 3 employee accepts horizontal reassignment to any locationin which a Group 2 employee is serving, the least senior Group 2 employee is nowidentified for layoff. Determine that employee’s rights to return to a hold item or tobump or retreat and prepare a form S 295.5 if the employee will have reemploymentlist rights.

b. If the most senior Group 3 employee refuses to accept horizontal reassignment, or has not selected a location in which a Group 2 employee is serving, then the Group3 employee is laid off. Prepare form S 295.5.

8. In rank order (most retention rights/greatest seniority first) continue to compare eachGroup 3 employee and his/her geographic location preferences against the locations of the remaining Group 2 employees, until all Group 3 employees have been given theopportunity to horizontally reassign to any positions held by the Group 2 employees.

9. If one or more Group 3 employees refuses horizontal reassignment, further steps maybe necessary. Compare the retention rights/seniority of the Group 2 employees who willbe "displaced" with the retention rights/seniority of those Group 2 employees who will notbe "displaced" due to refusals. Those Group 2 employees who will be displaced must

now be offered horizontal reassignment to positions held by those who were notdisplaced if the former have superior rights.

10. Conceivably in the above steps, all Group 3 employees with horizontal reassignmentrights could refuse to relocate. While unlikely, should this situation occur you must nowcompare the rights of Group 1 employees against Group 2 employees. If any Group 1employees have superior rights, instead of being laid off, they must be offeredreassignment to positions held by Group 2 employees.

PROCEDURES FOR NON COMPETITIVE AND LABOR CLASS POSITIONS

The procedures used to administer reductions in force which affect non competitive and labor class employees are similar to those for competitive class employees.

However, in order for non competitive class employees to have rights under §80 a of the CivilService Law they must first meet the provisions of tenure protection in §75.1(c) of the Law asmodified by negotiated agreements. (See Appendix A TENURE PROTECTION PURSUANT TO

§75.1(c)). Although labor class employees are treated similarly, there is no statute which providesthem with retention rights.)

Briefly, to obtain tenure protection under §75.1(c), non competitive class and labor classemployees must meet four criteria:

1. They must not be serving in positions designated by the Civil Service Commission asconfidential or requiring the performance of functions influencing policy. Non competitiveclass positions are listed in Appendix 2 of the Civil Service Law. Policy influencing or confidential positions are annotated with the Greek letter "Ø" (phi) in the listing. Do notconfuse "confidential" with the bargaining unit designation of "managerial confidential";they are not necessarily related.

NOTE: Some non competitive class employees who are in positions designated as policyinfluencing or confidential may, nevertheless, have tenure protection or layoff/reemploymentlist rights if they are serving in their current position as a result of the reclassification of their former position which was either not so designated, or was in the competitive class. (SeeAppendix A RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES WHOSE POSITIONS

HAVE BEEN RECLASSIFIED). Further, some non competitive and labor class employees





January 2006 28

who do not have tenure protection but who are veterans or exempt volunteer firemen mayhave the right to request transfer under §86. (See Appendix A TRANSFER OF VETERANS

AND EXEMPT VOLUNTEER FIREMEN (§86).)

2. Employees not designated as policy influencing or confidential must have at least oneyear of service in their jurisdictional class immediately prior to the date of layoff.

(Although §75.1(c) says "five" years, negotiated agreements say "one" year. This is alsoapplied to employees not covered by this contractual language.) This service need notbe permanent service to be qualifying for tenure protection under §75.1(c).

3. This service must be continuous; that is, there cannot be a break of one year or more.

(See Appendix A CONTINUOUS SERVICE for a more complete discussion.)

4. The employees must be permanent at the time of layoff.

Only when all four of these criteria are met is an employee entitled to layoff rights pursuant to

§80 a.

Non competitive class (and labor class), employees who meet these four criteria are affordedretention rights, horizontal reassignment opportunities or retreat rights, and if laid off, will have their

names placed on reemployment lists. Reductions In A Title Series In Multiple Geographic Locations

When positions are being abolished at more than one level in a title series and the positionsexist in more than one geographic location, all abolitions and their consequent horizontalreassignments should be done first "on paper" before determining which employees have verticaldisplacement rights.

There are two reasons for this:

1. this is the only way to determine who may be eligible for vertical displacement in the firstplace, and

2. since the point of vertical displacement is to provide lower level jobs for higher level,

more senior employees, all bumps and retreats must be carried out against the staffingpattern as it will exist immediately after the date of layoff.

While this preserves the principle of seniority which is basic to the layoff process, it may appear that lower level employees are being subjected to "double jeopardy" because some who haveaccepted a horizontal reassignment to another location may have to be displaced by someonefrom a higher level. To mitigate this agencies should caution employees who are making horizontalreassignment choices that ultimately their opportunity to relocate depends on the displacementrights of employees at higher levels.





January 2006 29

HORIZONTAL REASSIGNMENT METHODS Agencies may choose to limit or expand the number of choices offered to employees who must

be horizontally reassigned. The number of choices will be further expanded by the existence of non permanently filled positions, or agencies may expand the number of choices to includevacancies.

Based on the experience and insights gained in the administration of previous layoffs, theDepartment of Civil Service recommends the "Equal Numbers Method" of horizontal

reassignment be used.

A discussion of this method and examples of two other methods follows. Since there areimportant advantages, disadvantages and implications to each method, before determining whichmethod will be used, contact your Staffing Services Representative to discuss the administrationand probable results of these methods for the layoff situation at hand.

Equal Numbers Method

The Equal Numbers Method is based on the concept that the number of choices available for reassignment must be at least equal to the number of employees who must be offered

reassignment; if 5 employees must be reassigned, then the employee with the most rights gets tochoose from among the locations of the positions held by the 5 least rights employees whosepositions are not being abolished.

A brief discussion of two other extreme methods is provided below with comments about someof the usual negative results of using these methods.

One Choice Method

The One Choice Method offers employees only the position held by the currently least rightsemployee. This "most to least" method, while simple to administer, usually has the followingresults:

1. Employees have severely limited choices.

2. If the location of the least rights employee is undesirable, all employees may decline,resulting in greater rights employees being laid off and less rights employees beingretained.

3. The location of the employee with least rights may change as employees accept the oneposition being offered, resulting in less senior employees being offered more desirablechoices than more senior employees, and greater dislocations for those with the mostrights.

More Senior to Any Less Senior Method

This method allows any greater retention rights/more senior employee to choose a position heldby any lesser retention rights/less senior employee. This method requires that all employees

submit their ranked choices of locations they would accept with their current location as their required first choice. Where they cannot stay at their current location, their remaining choices arematched against the positions which will not be abolished at their next ranked location. Whereemployees have equal retention rights, the most senior employee is given first choice, then thenext most senior, etc. This method can have the following results:

1. Employees may have a great many choices, and they will need complete and accurateinformation well in advance in order to make their decisions.





January 2006 30

2. In large layoffs, the administrative complexity increases, and this method requires a largestaff commitment, and sufficient time to successfully complete the horizontalreassignment phase of the layoff.

3. This may result in many more employees being relocated than the number of positionsbeing abolished.

Illustration of the Equal Numbers Method

Assume an agency has 12 permanent employees in a title which will be affected by layoffs.Assume all have completed probation and are currently working at three locations Albany,Syracuse and New York City. All locations are in the same layoff unit and currently there are four employees at each location. Program needs require that the New York City office remain open andfully staffed, and Albany maintain at least three positions. However, management has decided toclose the Syracuse office. Therefore, a total of five positions in the title will be abolished.

To provide more senior employees with an opportunity to retain a job, and to lay off the leastretention rights/least senior employees, the agency compares the layoff unit seniority roster withseniority ranked lists of all the employees in the title at each location. On the layoff unit seniority

roster, and on the seniority list for each location, a line is drawn indicating the number of positionsto be abolished.

LAYOFF UNIT GEOGRAPHIC SENIORITY LISTS

SENIORITY ROSTER ALBANY SYRACUSE NEW YORK CITY

1. NYC 1

2. NYC 2

3. SYRACUSE 3

4. ALBANY _____4_____

5. ALBANY 5

6. ALBANY 6

7. SYRACUSE 78. ALBANY 8

9. SYRACUSE 9

10. SYRACUSE ____10____

11. NYC 11

12. NYC 12

5 EMPLOYEES TO BELAID OFF

1 POSITION TO BEABOLISHED

4 POSITIONS TO BEABOLISHED

0 POSITIONS TO BEABOLISHED

____________________________________________________________

1 5 = LEAST SENIOR EMPLOYEES IN THE LAYOFF UNIT (LESLU); POSITIONS ABOVE THE LINES INALBANY and SYRACUSE ARE TO BE ABOLISHED

7, 9, and 10 ARE EMPLOYEES WHO MUST BE OFFERED HORIZONTAL REASSIGNMENT ________________________________________________________________

Three groups of employees can now be identified. They are:

Note: LESLU = Least senior in the layoff unit.

Group 1 Employees who appear above the line on both the layoff unit seniority roster

(LESLU) and on the geographic seniority lists. In this example, these employees are #3 inSyracuse, and #4 in Albany.





January 2006 31

Group 2 Employees who appear above the line on the layoff unit seniority roster (LESLU) but

below the line on the geographic seniority lists. In this example these employees are #1 and #2 in

NYC, and #5 in Albany.

Group 3 Employees who appear below the line on the layoff unit seniority roster but above

the line on the geographic seniority lists. In this example, these employees are #10, #9, and #7, all

located in Syracuse.1. Employees in Group 1 are identified for layoff.

2. Employees in Group 3 are now compared with employees in Group 2 and are offeredthe opportunity for horizontal reassignment.

3. Employee #10 (most senior) is offered the first opportunity to be horizontally reassignedto either Albany (#5) or New York City (#1, or #2).

Assume that #10 selects New York City. Since there are two Group 2 employees at thatlocation, the agency should reassign #10 to the position held by the least senior employee, (#1).

Next employee #9, who is the next most senior Group 3 employee, is offered horizontalreassignment to either New York City or Albany (displacing employee #2 or #5). Assume employee

#9 refuses either location. Employee #9 is notified that he/she will be laid off and his/her nameplaced on reemployment lists. Employee #9 is also told he/she has no bumping or retreat rights.

Employee #7 is now offered an opportunity to be reassigned to either Albany or NYC (displacingeither employee #2 or #5). Assume #7 chooses Albany, displacing #5.

All Group 3 employees have now been compared and are accounted for. Two Group 2employees remain, #2 in New York City and #5, who was originally located in Albany but who wasdisplaced by #7.

Since employee #5 has more seniority than employee #2, employee #5 should be offeredhorizontal reassignment to New York City. Assume employee #5 accepts.

The final outcome of the lateral horizontal reassignments is summarized below.

· Employees 1, 2, 3, 4 Are laid off, have their bumping or retreat rights determined, and

their names put on reemployment lists.

· Employees 5, 7, 10 Are reassigned to new locations as of the date of layoff.

· Employee 9 Has no rights under §80, but will be placed on reemployment lists for anylocations except New York County or Albany County.

· Employees 6, 8, 11, 12 Are not affected by the layoff.

If the "One Choice" method were applied to the above situation, employee 10 would be offered

the position held by 1 in NYC; then employee 9 would be offered 2 in NYC. Assuming both accept,employee 7 would be offered the position held by 5 in Albany.

If the "More to Less Senior " method were applied, location choice information would first be

gathered from ALL employees. (See EMPLOYEE CHOICES), then employees 12 and 11 would get

their first choice, which is their current location. Employees 10 and 9 could choose either NYC or Albany. Employee 7's options would depend on which positions 9 and 10 accepted, and employee6 might be affected depending on the choices made by 10, 9 and 7.

It is important to realize that the sample problem is illustrative only, and that in most real layoff situations there are more complexities than are shown here. Again, it is important that agenciesdiscuss these horizontal reassignment methods in the context of their layoff situation with their Staffing Services Representative before announcing to their employees which method will be used.





January 2006 32

EMPLOYEE CHOICES

PRELIMINARY NOTICE

It is important to notify employees of the potential for layoff as soon as determinations havebeen made as to which titles and locations will likely be affected.

In order for employees to make realistic choices about their future, they must first accept the factthat they may be laid off. Acceptance is difficult for most employees and it requires time as well asrepetition. An early preliminary notice and meetings with employees are suggested as means of helping them to deal with the fact that they may have to make choices concerning their reassignment, or vertical displacement.

CHOICES FOR HORIZONTAL REASSIGNMENT OR VERTICAL DISPLACEMENT

Throughout the layoff process, it will be necessary to communicate with employees to determinetheir willingness to accept horizontal reassignment or vertical displacement opportunities. Thisinformation is necessary for the administration of the layoff since, for example, the acceptance of ahorizontal reassignment by a more senior employee (A) may mean a less senior employee (B) is

laid off. If (B) accepts a lower level position through vertical displacement, then employee (C) is laidoff and may have a retreat opportunity which affects employee (D). It is obvious from this example,that information on whether employee (A) will or will not accept a horizontal reassignment must besought first so the layoff process can be carried out.

Furthermore, it may be necessary to provide affected employees who have disabilities and whoare eligible for reassignment or displacement reasonable accommodations in their newassignments. (See Appendix A REASONABLE ACCOMMODATIONS)

In small scale layoffs involving only a few employees, and where opportunities for horizontalreassignment and vertical displacement will be limited, the contacts can be made in person or bytelephone and then followed up with a confirming letter. However, in large scale layoffs where moreemployees are involved it may be necessary to gather employees' preference information by

sending a specially prepared information package explaining horizontal reassignment and verticaldisplacement, and listing locations within the layoff unit. Employees can then return a form rankingthe locations which they would accept. Each employee, beginning with the most senior, is thengiven his/her highest ranked available choice and is contacted by telephone to confirm this choicebefore the next most senior employee's choices are examined. In this type of situation, it isadvisable to allow employees two to three weeks to return their choices and to inform employeesthat on a specific date they will be called to confirm acceptance of their available horizontalreassignment or vertical displacement choices.

From the employees' standpoint, it is obviously preferable to be able to make choices fromthose options which will actually be available. This requires that final horizontal reassignment andvertical displacement rights be determined for each employee and that this be included in an

informational package tailored for each individual.However, in large scale layoff situations, especially where a variety of geographic locations are

included within the layoff unit, this may not be possible. Instead, it may be necessary to

1. provide all potentially affected employees with a list of all the possible locations to whichhorizontal reassignment or vertical displacement could occur,





January 2006 33

2. ask them to rank those locations to which they would

a. accept horizontal reassignment and, separately,

b. those locations in which they would accept a lower level position, if available,through vertical displacement (bumping or retreat).

If this latter method is required in order to administer the layoffs, the informational packagesshowing the locations available should be sent to employees prior to informational meetings, andexplained to the employees at these meetings so they can understand the consequences of their choices. If this information is not adequately explained, not only will employees not be able to makereasoned choices, but agencies face the prospect of potential grievances and litigation brought byemployees who believe they were not treated fairly. Additionally, the layoff process may be further disrupted if significant numbers of employees at the last minute refuse the appointments they have“agreed to” in haste or without sufficient information.

EMPLOYEE PERSONNEL INFORMATION VERIFICATION and LOCATION PREFERENCE SHEETS

Agency users can generate employee personnel verification forms using two reports found inNYSTEP On Request Reports – the Employee Personnel Information Verification Form and the

Employee Personnel Information Verification Form with Location Preference. These forms can berequested by layoff unit, or by title, or by SSN.

The report titled "EMPLOYEE PERSONNEL INFORMATION VERIFICATION FORM" can be sentto employees in titles potentially identified for layoff. When employees return the printed forms,

personnel office and NYSTEP records can be adjusted as required, and new seniority rosters canbe requested if necessary.

The report titled "EMPLOYEE PERSONNEL INFORMATION VERIFICATION / LOCATION

PREFERENCE SHEET" can be sent to affected employees who have been specifically identified for

layoff and whose names will be placed on reemployment lists. This form lets affected employeesidentify geographic locations where they will consider employment. After the employees return theform, agencies that choose to complete the S 295.5 Preferred List/Reemployment Roster EligibleCard for their employees can keep the verification form for their records. In addition, agencies canuse this form to allow employees to indicate locations in which they would accept horizontalreassignment or vertical displacement.

Agencies should provide a cover letter explaining why the employee was sent the form, andwhen and to whom it must be returned.

In addition to being available on line, if large scale mailings are planned these forms can also beordered from the Department of Civil Service. Contact your Staffing Services Representative topursue this option.

NOTE: Although these verification forms are printed in a format similar to the S 295.5,Preferred List/Reemployment Roster Eligible Card (“green card”) and the S 295.6 Agency

Reduction Transfer Card (“blue card”) they will not be accepted by Career Mobility Officestaff as substitutes.

NOTE: If a report is requested for the entire layoff unit, employees who are in two items (i.e.,on leave from one item while serving in another in the same layoff unit) would have twoforms generated by this report.





January 2006 34

NOTE: The Employee Home Address information found on these reports comes from thedata entered in the NYSTEP Personal Data panel and users can make changes or corrections directly using that panel. See the NYSTEP User Manual for more information onhow to correct records in NYSTEP. Some corrections (for example, changes to appointmentdate) may require intervention by the DCS Special Transactions Unit (STU) and should be

discussed with your Staffing Services Representative.





January 2006 35

NOTIFICATIONS AND PAYROLL TRANSACTIONS

NOTICES TO EMPLOYEES

Final notices to all employees affected by the layoff must be received by the employees at least

three weeks before the date of layoff.

We recommend that agencies prepare standard notification letters for each group of employeeswho have been affected. The contents of each of these letters for each group will vary according tothe effect that the layoff has had. For example, any or all of the following layoff situations mayoccur:

· Employees are reassigned in title to another location

· Employees are offered reassignment in title to a location in another county, but refuseand therefore do not have bumping or retreat rights, but will have their names placed onreemployment lists

· Employees are laid off and have their names placed on reemployment lists andeither:

§accept a bump or retreat to a lower level, or

§ refuse a bump or retreat to a lower level, or

§ are not eligible to bump or retreat

· Employees are laid off and have their names placed on reemployment lists and mayeither:

§ return to their hold item, or

§ refuse to return to their hold item

· Employees do not have layoff rights and are terminated

The layoff notification should state precisely what has happened to the employee, and whereand when the employee is supposed to report to work (if applicable). The notification must be

accompanied by the Information For State Employees Affected by Layoff booklet if the employee'sname will be placed on reemployment lists. All notices must also contain a statement about cashpayments for accumulated credits, and a phone number in the agency for employees to contact.

INFORMATION TO CIVIL SERVICE

"Layoff Cards" (S 295.5 Preferred List/Reemployment Roster Eligible Card)

At the time that the notices are prepared for employees, agencies should also have preparedlayoff cards (S 295.5) for those employees whose names will be placed on reemployment lists. TheS 295.5 must be signed by the agency and the employee. Appointments to lower level positionsmust be indicated in the appropriate box on the form.

A transmittal memorandum listing the names and social security numbers of all the employees

must accompany the layoff cards. The list of those who will be laid off must indicate those who are

being appointed to lower level positions and their title, grade level and status in those positions.The agency is to submit these cards with the list directly to the Reemployment Services Section.

Where agencies have previously prepared the layoff cards and forwarded them to Civil Service(for example, to establish an ARTL) they should now prepare an updated list of those who will andwill not be laid off.

NOTE: CSL §81 a and 81 b, require that agencies provide the names of employees who willbe laid off no later than 20 days prior to the date of layoff.





January 2006 36

NOTE: Employees whose permanent competitive, non competitive or labor class hold itemsare abolished have rights to have a lower level position assigned to them as their new hold.They exercise these rights through bumping and retreat just as if they were actually serving inthe abolished hold items. (See Appendix A LEAVES THE RIGHTS OF EMPLOYEES ONLEAVE)

Where lower level employees are serving permanently in positions affected by the assignmentof such hold item rights, they do not lose their jobs, but have their status changed from"permanent" to "contingent permanent." These employees have no rights to displace to a lower level (since they are not suspended or displaced, and there has been no loss of salary or permanency), however, they will have their names placed on reemployment lists in inactivestatus in order to "document" that their change in status came about as the result of anabolition of a position. If the incumbent subsequently returns, the contingent permanentemployee is then given full preferred list and reemployment roster rights.

NYSTEP PAYROLL TRANSACTIONS

The following reason codes should be used for NYSTEP transactions when reductions in force

occur. For complete information on how to submit NYSTEP transactions refer to the NYSTEP User’sManual

Appointment Transactions (Beginning of business, effective day after the date of layoff)

DPD Displacement direct (through bumping) of an employee from a higher permanent title to a lower leveltitle, in a direct line.

DPR Displacement (through retreat) of an employee from a higher permanent title to the last lower titlepreviously held permanently.

RDY – Redeployment list appointments.

RER – Reemployment Roster appointments.

RLV Reinstatement from an encumbering leave use this code to restore a probationary employee tohis/her permanent hold item.

RNI Horizontal reassignment, in the same title and grade to a different location (i.e., county) within anappointing authority (in one payroll agency or across payroll agencies).

TRL Agency Reduction Transfer List appointments.

PLR Placement roster appointments.

PRF – Preferred list appointment.

Separation and Termination Transactions (Beginning of business, effective day after the date of layoff)

LAD Layoff of a permanent employee displaced through bumping by a higher level employee in the directpromotion line.

LAF – Layoff of an employee pursuant to §80 or §80 a.

LAR Layoff of a permanent employee displaced by a higher level employee through retreat.

REASGN OUT Use to report a separation, as a result of horizontal reassignment between payrollagencies under the same appointing authority.

ROT – Use to report a separation as a result of horizontal reassignment between payroll agencies under thesame appointing authority.

RPT – Remove a nonpermanent employee as a result of a reemployment list.

RFT Remove non permanent employees or other employees without §80 or §80 a rights.

RFR Remove a permanent/contingent permanent employee who refuses geographic reassignmentnecessitated by agency program needs or who refuses horizontal reassignment necessitated by theabolition of positions. [added May 2005]





January 2006 37

APPENDIX A: A FLOW CHART OF THE LAYOFF PROCESS

Determine titles / no. of positions / locations of positions to be abolished. Order seniority rosters, verify records. See “Reading Seniority Rosters,” p. 12

Starting with highest level titles Who will be affected? Who has rights?See RETENTION RIGHTS and TENURE PROTECTION PURSUANT TO §75

Permanent competitive, NC &labor with rights

Exempt, unclassified, NC& labor without rights

Non permanent

Competitive Non competitive, andLabor Class

See A - PROCEDURESFOR EMPLOYEESWITHOUT RIGHTS

Bumping? See A BUMPING RIGHTSAND OPPORTUNITIES

Check for direct line lower level titlesadditional / new seniority rosters?

Retreats? See A RETREAT RIGHTS ANDOPPORTUNITIES

Check previous titles of employeesadditional / new seniority rosters?

On seniority rosters draw line below number of positions to be abolished in each affectedtitle. Compare locations of employees with locations of positions being abolished, andlocations of employees who will be affected by displacements.

See LAYOFF METHODS AND PROCEDURES

Single location agencies, or agencies where locations of positions & employees being

affected match.

Multiple location agencies, where locations of positions & employees being affected do not match

and horizontal reassignments are required. See“Reductions in Force in Layoff Units with Multiple

Geographic Locations” in LAYOFF METHODS AND

PROCEDURES

ProbationersSee A PROCEDURESFOR PROBATIONERS

Non probationers

to next page





January 2006 38

FLOW CHART OF THE LAYOFF PROCESS (CONTINUED)

For those employees withbumping or retreat rights &/or

opportunities

For those employees withoutbumping or retreat rights &/or

opportunities

Determine if they will accept displacements.If “Yes,” a second round of displacements,

returns to hold items may be required. If “No,”they have waived their rights to displace.

No

Final Notices, S 295s, Payroll Transactions

See NOTIFICATIONS AND PAYROLL TRANSACTIONS

Hold items to return to?

Yes. However, if employees

are CPs, See A CONTINGENT PERMANENT

EMPLOYEES

Hold being abolished.

See A LEAVES RIGHTS OF

EMPLOYEES ON LEAVE

Willing to return?“No” Considered to have

resigned from hold. Mayhave reemployment list

rights.





January 2006 39

APPENDIX A: CRITICAL CONCEPTS AND DEFINITIONS

The law, rules and regulations governing layoffs and reemployment often make specificdistinctions and provide specific definitions. Furthermore, a number of policy decisions and legalinterpretations have been made over time which define important distinctions among the rights of the variety of employees who may be affected by a layoff.

The following sections provide definitions, and discuss concepts and issues which must beclearly understood in order to equitably and legally administer a work force reduction.

See the following topics for detailed information on:

ADVERSE IMPACT ANALYSIS ........................................................................................ 40

BUMPING RIGHTS AND OPPORTUNITIES..................................................................... 41

CONTINGENT PERMANENT EMPLOYEES .................................................................... 43

CONTINUOUS SERVICE.................................................................................................. 46

DIRECT LINE FOR VERTICAL DISPLACEMENT ............................................................ 47

LAYOFF ............................................................................................................................ 48 LAYOFF UNITS ................................................................................................................ 49

LEAVES THE RIGHTS OF EMPLOYEES ON LEAVE.................................................... 50

PART TIME EMPLOYEES................................................................................................ 53

PROCEDURES FOR EMPLOYEES WITHOUT RIGHTS.................................................. 57

PROCEDURES FOR PROBATIONERS ........................................................................... 58

REASONABLE ACCOMMODATIONS .............................................................................. 59

REASSIGNMENTS ........................................................................................................... 60

RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES WHOSE POSITIONS HAVE BEEN RECLASSIFIED ... 62

RETENTION RIGHTS ....................................................................................................... 66

RETIREMENT................................................................................................................... 67

RETREAT RIGHTS AND OPPORTUNITIES..................................................................... 68

SENIORITY....................................................................................................................... 70

TENURE PROTECTION PURSUANT TO §75.1 (C)......................................................... 72

TRAINEES AND PUBLIC MANAGEMENT INTERNS....................................................... 73

TRANSFER OF VETERANS AND EXEMPT VOLUNTEER FIREMEN (§86).................... 75

VETERANS, SPOUSES OF DISABLED VETERANS and BLIND EMPLOYEES (§85.7) 76

WORK LOCATIONS AND LAYOFF UNIT DESIGNATIONS............................................. 77





January 2006 40

ADVERSE IMPACT ANALYSIS

In accordance with Federal requirements (Office of Federal Contract Compliance Standards),agencies must analyze the impact of adverse personnel actions, such as reductions in force, onprotected class members. In New York State (See Executive Order 6) where adverse impact is

found, agencies must either revise the action to modify or remove the impact, validate the adversepersonnel action or justify the action because of business necessity.

Adverse impact generally exists with a reduction in force when the termination rate (or verticaldisplacement rate) for employees from a particular protected class group is greater than eightypercent of the termination rate for another group. To determine the impact, you must identify thetermination rate for each group, identify the group with the lowest termination rate and compare thetermination rates for other groups to that group. See the example below for an explanation of theRIF adverse impact analysis formula.

For example:

Out of 100 male employees, 6 are laid off.

Out of 50 female employees, 5 are laid off.

a. Determine the termination rate for male employees: (6 / 100 = 6%)

b. Determine the termination rate for female employees: (5 / 50 = 10%)

c. Use the two termination rates to get the termination ratio: (6% / 10% = 60%)

d. Compare termination ratio to 80 percent. If the termination ratio is less than 80

percent, there is generally adverse impact. In this example, adverse impact exists as60 percent is less than 80 percent.

NOTE: When determining the impact ratios, termination rates for ethnic groups should becompared to rates for other ethnic groups, male and female termination rates should becompared to each other, disabled employee termination rates should be compared to ratesfor all other employees and Vietnam era veterans termination rates should be compared to

termination rates for all other employees.

MINIMIZING ADVERSE IMPACT

The process for analyzing and trying to minimize the impact is outlined in the Model AffirmativeAction Procedures, approved by the President of the Civil Service Commission, and maintained inyour Affirmative Action office. These procedures include model forms to report your impact analysison the various protected classes affected by an abolition of positions and require the following:

1. The affirmative action officer should be included as part of the management teamdeveloping the layoff plan.

2.

The affirmative action officer should help identify titles with high protected classrepresentation so that the agency can try to minimize the impact of the layoff on thosetitles.

3. The affirmative action officer should conduct an adverse impact analysis to determine theimpact of proposed layoff plans on protected class groups.

4. Where adverse impact will occur against a protected class group, the RIF managementteam will try to develop a RIF scenario with less adverse impact.





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BUMPING RIGHTS AND OPPORTUNITIES

The distinction made here and elsewhere in these Guidelines between rights and opportunities isa conceptual rather than a legal one. It is used to break the determination process into two discreteprocedural steps.

Step 1 To determine whether any competitive class employee has bumpingrights

ask the

following questions:

1. Are there direct line lower level positions in the title? Direct line means having the samegeneric root, and does not include collateral line titles which are allowed to compete inpromotion examinations.

EXAMPLE : PRINCIPAL ACCOUNTANT, G 27; ASSOCIATE ACCOUNTANT, G 23;SENIOR ACCOUNTANT, G 18; ASSISTANT ACCOUNTANT, G 14

In this example, a collateral line title not considered direct line for bumping is from Associate

Accountant to Senior State Accounts Auditor.

2. Are these positions occupied? They can be occupied by either permanent or non permanent employees. If the positions are vacant, temporarily vacant or beingabolished, they are not available for bumping. (Vacancies not being abolished are,however, available at the discretion of the agency for reinstatement.). Where a middlelevel title in a series is absent or simultaneously abolished, determine if the next lower level in the series is occupied.

If the answer to both these questions is "Yes," the employee has bumping rights. If the answer to either question is "No," the employee has no bumping rights.

NOTE: The employee need not have ever held a lower level position in the title series to beeligible for bumping rights.

Step 2 After determining that an employee has bumping rights, ask the following questions to

determine if a competitive class employee has bumping opportunities:

1. Does the employee have equal or greater retention rights than the least senior/least

retention rights employee in a position in the next lower level? Simply put this meansthat a non probationer can bump another non probationer or a probationer, but aprobationer can only bump another probationer. An employee who is not on probationcan bump a probationer regardless of their relative seniority dates.

NOTE: Probationers who are on leave from a hold item in which they were permanentcannot bump at all. They return to their hold items. Probationers without a hold item maybump if they have five years of continuous service (Rule 5.5(d)). They then complete theremainder of their probation in that position.

2. Does the bumping employee have greater seniority than the least senior employee atthe next lower level? If both employees have the same seniority dates the higher levelemployee cannot bump.





January 2006 42

If the answer to both questions is "Yes", the employee has an opportunity to bump. If the answer to either question is "No" the employee has no opportunity to bump.

NOTE: The employee has only one opportunity to bump the least retention rights/least

senior employee. The employee cannot choose to bump any permanent employee with

less seniority. However, all non permanent employees must be considered to have the

least retention rights in the title, and therefore, where there are several non permanentemployees in the lower level at different work locations, the employee has the right tochoose to displace to any such work location. Where two or more non permanentemployees are serving in the same work location, the agency determines the position towhich the employee will bump.





January 2006 43

CONTINGENT PERMANENT EMPLOYEES

Effective Nov 21, 2001 Rule 4.11 was replaced and rule 4.12 repealed. The new rule nowcovers employees in the competitive, non competitive and labor classes. The words "contingentpermanent" have now been re incorporated in the new rule.

An important principle underlying any discussion of the rights of contingent permanentemployees is that Rule 4.11 is intended to give them as much as possible the same rights as

permanent employees but that in no case can they obtain greater rights than permanentemployees.

It is important to distinguish in this discussion between cases where there is a return of

incumbent and cases where there is a displacement. Return of incumbent means a permanent

employee returning from a leave granted while serving as a provisional, or in a different jurisdictional class, or on probation. Displacement means an employee taking the positionoccupied by the least senior/least retention rights individual at either the next lower level in directline of promotion (“bumping”) or in the individual’s last held lower level title (retreat) as defined in§80 or §80 a.

Rights of Contingent Permanent Employees in Layoff Situations (§80 or §80 a)

Layoff situations are governed by §80 and §80 a, and Rules 5.5 and 5.6. The fact thatemployees are currently contingent permanent in a position that is being affected is NOT relevant.Contingent permanent employees, along with all other employees in the title in the layoff unit, maybe affected in one of the following ways:

· abolition of the positions in which they are serving, or

· horizontal displacement by employees in the same title, or

· vertical displacement by employees from higher level titles through "bumping" or retreat.

When contingent permanent employees are so affected they, like permanent employees, mayhave their names placed on appropriate reemployment lists and may displace in turn. They may

not return to any hold item that they have been given pursuant to Rule 4.11 because:1. these hold items are only for purposes of return of incumbent, and

2. to do so would give them greater rights than those available to permanent employees.

Rights in Return of Incumbent Situations (Rule 4.11)

Unlike permanent employees, contingent permanent employees face the additional "jeopardy"of being affected by the return of the prior permanent incumbents of their positions. Therefore Rule4.11 provides certain (but not all) contingent permanent employees with rights to retain a hold itemafter they have completed any required probationary period.

However, it is important to note that this Rule (and Rules 4.5 and 4.10, as well) does not

contemplate more than one permanent and one contingent permanent appointment to the sameposition, and that the primary intent of these rules is to guarantee the rights of the one prior

permanent incumbent when he or she is given a leave of absence and must return to a hold item

that has been filled on a contingent permanent basis.

Pursuant to Rule 4.11 the prior permanent incumbent returns to their position, and if there areno non permanent employees serving, the most recently appointed contingent permanent isaffected.

Rule 4.11 does permit contingent permanent employees to be given leaves as well, and insome cases agencies have made multiple contingent permanent appointments to one position.





January 2006 44

Where this has occurred, and a former contingent permanent employee must return to a positionwhich is now filled behind him or her by a contingent permanent appointment, it is thisDepartment’s policy that the relative seniority (not relative retention rights) of the two (or more)

contingent permanent employees determines which employee can serve in the position. (Thedefinition of seniority is the same as the definition used in layoff situations, but otherwise the

situations are not related.)Detailed discussions of the rights, policies and procedures governing contingent permanent

employees may be found in the State Personnel Management Manual(See 1800 Appointments).

SUMMARY STATEMENTS

Given the above discussion of their rights, certain summary statements may be madeconcerning contingent permanent employees. The following are not meant to be all inclusive, butto contemplate some of the more common situations which can occur:

· Employees appointed on a contingent permanent basis and given a leave of absence(either a mandatory leave pursuant to Rule 4.5, or Rule 4.10, a negotiated agreement,or a discretionary leave) do not have the same rights to return as a permanent

employee. A former contingent permanent employee’s right to return may be affected byanother employee being subsequently appointed contingent permanent to a positionfrom which a contingent permanent employee has been given a leave.

· Contingent permanent employees who have completed probation:

¨ may NOT voluntarily return to their hold items;

¨ may NOT return to their hold items if affected by the abolition of their position, or displacement;

¨ may ONLY return to their hold items upon the return of the prior permanent incumbent, or a contingent permanent incumbent withgreater seniority;

¨ may DISPLACE to a lower level position only if affected by abolition of their position or displacement.

· Contingent permanent employees who are on probation and have a hold item pursuant to Rule 4.5

¨ may return to their hold items if affected by the abolition of their position,

or displacement;

¨ may return to their hold items upon the return of the prior permanent

incumbent, or a contingent permanent incumbent with greater seniority;

¨ may not displace to a lower level position if affected by abolition of their

position or displacement.

· Any contingent permanent employee affected by return of incumbent, continues to begoverned by Rule 4.11 even if the return of the prior permanent incumbent (who is for

example, serving provisionally, or as a probationer at a higher level) is necessitated by alayoff.

· Contingent permanent employees without identified hold items who are affected by

return of incumbent must be restored to a position, if available, if they were promised

such a position in accordance with Rule 4.11 (c).





January 2006 45

· Any contingent permanent employee affected by displacement (bumping or retreat), is

governed by §80 or §80 a, and has their rights to displace pursuant to those sections.

¨ Those who are not on probation, or are probationers without a hold

item do not have rights to return to a hold item pursuant to Rule 4.11

even if the displacing employee coincidentally happens to be the prior

permanent incumbent.

¨ Those who are probationers with a hold item pursuant to Rule 4.5

have rights to return to those hold items if displaced.

NOTE: See Appendix A LEAVES THE RIGHTS OF EMPLOYEES ON LEAVE for informationon the effect of abolishing an employee's hold item, or the effect of an employee losing ahold item due to displacement.

NOTE: When a contingent permanent employee is laid off agencies should check to see if this releases the “4.11” hold, and if so, if a contingent permanent appointed to a position inthat title can be converted to permanent. (See 1810 of the State Personnel ManagementManual.)





January 2006 46

CONTINUOUS SERVICE

Continuous Service for Seniority

For purposes of layoff, continuous service for determining seniority under §80 and §80 a, isdefined as permanent classified service unbroken by periods out of service of one year or more.For example, a permanent competitive class non veteran employee's employment history filereads:

OC Perm..........1/1/80

Resign..............6/1/81

Perm Reinst......5/1/82

The employee's seniority date is 1/1/80.

There are some situations (see §80.2 and §80 a.2) which are specifically defined as notconstituting a break in service for purposes of determining seniority dates. They are:

· Periods of leave of absence

· Periods out of service in which the employee's name was on a preferred list · Periods out of service of employees terminated and reinstated pursuant to §71

· Provisional and temporary service, or service in the unclassified service, immediatelypreceded and followed by permanent classified service

In addition, some employees may have had their seniority dates recalculated after a period of interrupted service (§80.3 and §80 a.3). In these cases this recalculated date becomes the datefrom which determinations of continuous service are made. (See Appendix A SENIORITY)

Continuous Service for Determining Tenure Protection Under §75.1(c)

Continuous service for determining whether non competitive and labor class employees havelayoff rights is defined as service in the non competitive or labor class, respectively, unbroken by

periods out of service of one year or more. The only difference between these two types of continuous service is that for §75.1(c) this service need not be permanent. However, only personswho are permanent at the time of layoff have rights under §80 a. (See CSL §75 1 (c))

Continuous Service for Probationers Without Hold Items for Determining Eligibility for Displacement

Continuous service for determining whether certain probationers can bump or retreat is definedas service unbroken by periods out of service of one year or more.

Note: For example, an employee was suspended for two years. This constitutes a break inservice for purposes of §80 since that section specifies those situations which are not

breaks and a suspension is not so specified. However this employee would be eligible tohave his/her seniority date reconstructed pursuant to §80.3





January 2006 47

DIRECT LINE FOR VERTICAL DISPLACEMENT

"Direct line" for the purpose of vertical displacement in the competitive class (bumping) is basedon §80.7 and is interpreted narrowly. Direct line means the one title at the next lower level whichhas the same generic root. In other words, the titles are the same except for level designation (e.g.,

Senior, Principal, Chief). For example, the generic root of Principal Accountant is Accountant.Therefore, the next lower level title in "direct line" is Associate Accountant. Titles with other genericroots, such as Associate Accountant (Employment Security), etc., are not considered "direct line"for the purpose of vertical displacement even though Associate Accountants (EmploymentSecurity) or other parenthetics or other titles listed on promotion examination announcements mayhave been promoted to Principal Accountant.

There may be rare cases where direct line titles do not have the same generic root. For example, the layoff rights of employees in the Secretary, Stenographer and Typist/KeyboardSpecialist series See General Information Bulletin #95 10. Agencies should contact their StaffingServices Section to discuss these situations.





January 2006 48

LAYOFF

The term "layoff" is commonly used whenever an employee is separated from state service.However, only when certain conditions are met do employees have rights under §80 or §80 a:

· The separation must be a result of the abolition of one or more positions.

· The employees must have permanent status at the time of layoff.

· The positions must be in either the competitive class (§80 rights), or non competitiveclass (§80 a rights). Employees in labor class are granted the same rights as non competitive class employees by negotiated agreements.

· Non competitive class and labor class employees must have tenure protection pursuantto §75.1.(c) and negotiated agreements.

Furthermore, employees need not have been completely separated from service in order tohave rights pursuant to these sections. Employees, who have had to bump or retreat to a lower level, and employees who have lost their permanent hold items have all been "laid off," and,assuming they meet the criteria above, have layoff rights.





January 2006 49

LAYOFF UNITS

Civil Service Law (See §80.5 and §80 a.5) provides that layoffs shall be made from among theemployees of the affected department as a whole except where separate (i.e., smaller) units for layoff have been designated. These separate units for suspension, demotion or displacement are

listed in President’s Regulation §72.1, and are called layoff units. It is within these defined layoff units, which may be organizational or geographic portions of an agency, that employees aresuspended or demoted, exercise their rights to be retained or horizontally reassigned, and withinwhich they vertically displace ("bump" or retreat). The impact of any layoffs are always confined tolayoff units and to the titles and positions identified in these units.

Formal definitions of layoff units exist for every State department and agency, and may reflectagreements made through collective bargaining.

Since the layoff unit structure can have a significant effect on the rights and opportunities of employees both to retain a position, and to be reemployed if laid off, the Department of CivilService must approve any proposed changes in an agency's layoff unit structure.





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LEAVES THE RIGHTS OF EMPLOYEES ON LEAVE

The rules, regulations, policies, procedures and contractual agreements which govern leavesremain in effect during layoffs.

Generally these are:

A. Employees with rights to return to a hold item generally have a right to return to thepositions from which they are on leave. This is not to say that agencies cannot reassignhold items and employees based on program need, or when required by layoffs. Inthese cases employees do not have rights to be restored to any one specific item.Employees are considered to be on leave from a title, and have rights to their former status and location. When restoration to a hold occurs the agency may designate thespecific item. Agencies may change designated hold items and may reassign hold itemsto different locations at any time.

B. Employees who refuse to return to a hold item which was moved to a different location(i.e., different county) are considered to have declined a reassignment, and are eligiblefor reemployment list status, but they are not eligible for bumping or retreat.

C. Some types of leaves are mandatory, i.e., required to be granted by an agency by CivilService Law or rule, or by negotiated agreement. Other types of leaves are discretionaryon the part of the agency. Granting a leave constitutes an agreement between theagency and employee which generally cannot be broken except by mutual agreement.However, there are several exceptions to this:

1. Probationers may request restoration to a hold item prior to end of their leave, andthe agency must restore them. (Rule 4.5)

2. Employees who have been temporarily or provisionally appointed to another competitive class position in their agency must be restored upon request (Rule 4.10).

3. Contingent permanent* employees who are affected by return of a prior permanentincumbent must be offered restoration with permanent status to the hold items

provided for this purpose (Rule 4.11). Contingent permanent employees who havecompleted their probation may not voluntarily return to these hold items in the

absence of return of incumbent.

*NOTE: However, where employees were originally appointed contingent permanent in

their hold items and given a leave (Rule 4.11 (c)), and agencies have made subsequent

contingent permanent appointments to the same position, a comparison of the senioritydates of the two (or more if several are returning and sufficient positions are not available)contingent permanent appointees is required. Although these are not layoff situations, only

if the returning contingent permanent employee has an earlier seniority date (use the

“layoff” definition of seniority, however status as a probationer is not relevant) may he/shereturn and “replace” the contingent permanent who is serving. (See Appendix A

CONTINGENT PERMANENT EMPLOYEES)

NOTE: Where the returning employees were originally appointed permanently (i.e., not

pursuant to Rule 4.11) then as the prior permanent incumbents they have a right to returnpursuant to these rules (4.5, 4.10, or 4.11, as the case may be) without regard to seniority.

NOTE: Employees who have a right to return must give their agency at least 2 weeks noticeof their intent to do so.





January 2006 51

In layoff situations employees who have hold items may be affected in their current positions, or have their hold items affected, or both. The above provide the framework for the discussions of thethree layoff situations which follow.

Layoffs affecting the current positions of employees who are on leave.

Generally, employees who are on leave cannot displace. (See Appendix A BUMPINGRIGHTS AND OPPORTUNITIES, and RETREAT RIGHTS AND OPPORTUNITIES)

· Provisional and temporary employees have no layoff rights and must be allowed toreturn to their hold items.

· Probationers permanent and contingent permanent competitive and non competitiveemployees, and permanent labor class employees who have been granted a leave toserve a probationary period in their current positions have no rights to displace throughbumping or retreat (Rule 5.5 and 5.6). Only probationers without a hold item are eligiblefor such displacement, provided they have five years of continuous satisfactory service.

· Employees who elect to return to a hold item prior to the date of layoff have, in effect,resigned. They accrue no rights pursuant to §80, or §80 a, or §81 if their former positions are subsequently abolished.

· Contingent permanent employees who are not on probation may not return to the

positions being held for them pursuant to Rule 4.11. (See Appendix A CONTINGENT

PERMANENT EMPLOYEES)

Layoffs affecting the hold items of employees who are on leave.

Employees on leave from positions being affected by layoffs must be treated for layoff purposesas if they were actually serving in those positions. Employees whose permanent competitive, non competitive or labor class* hold items are abolished must be given new hold items through

horizontal reassignment or if not, through bumping or retreat to a lower level. They exercise theserights just as if they were serving, except that they do not actually displace any incumbents who are

serving.

*NOTE: this applies only to those non competitive and labor class employees who meet thetenure requirements of §75.1 (c) and negotiated agreements.

Where employees are serving permanently in positions affected by having their “permanencydisplaced” by the assignment of these holds, their status is changed from permanent to contingentpermanent. They have no rights to displace themselves to a lower level since there has been noloss of salary or permanency. However, they will have their names placed on reemployment lists ininactive status in order to "document" that their change in status came about as the result of anabolition of a position. If the prior permanent incumbent subsequently returns, the contingentpermanent employee is then given full preferred list and reemployment roster rights, even if they

were given a lower level hold at the time of this “conversion.”

Layoffs affecting both the current positions of employees on leave and their hold items.

When layoffs require employees to return to hold items in titles which are also being affected by

abolition, they must be afforded the appropriate retention rights due them as if they were actuallyserving in both positions.





January 2006 52

In both positions, determine their rights to retain a position (or hold item), or displace, applyingthe principles above: first to their current position and second to their hold item.

Note that contingent permanent probationers returning and becoming permanent releasesthe holds required by Rule 4.11and this may allow other contingent permanent employees at

that level to be converted to permanent (releasing other required Rule 4.11 holds).





January 2006 53

PART TIME EMPLOYEES

The term "part time" actually covers a wide variety of work situations and schedules. In mostsituations and for most purposes all permanent part time employees are treated the same aspermanent full time employees.

All arrangements for part time employment are at the discretion of agency management andcan be changed at any time unless the work schedule was specifically guaranteed as a condition of employment at the time of appointment, or unless such schedules are included in negotiatedagreements. When schedules are changed by an agency, employees are not entitled to rights todisplace or have their names placed on preferred lists if they refuse to work the altered schedule.

NOTE: This is not to say that permanent full time employees may have their hours reducedat the discretion of the agency. The necessity for, and the process governing suchsituations must be discussed beforehand with this department.

However, when permanent part time employees are affected by abolitions of positions, theymust be accorded their retention, displacement and preferred list rights.

In layoff situations, to preserve the rights of employees and to ensure equity, it may benecessary to distinguish among the various types of part time employees based on whether thepositions being affected are available to be filled on a full time basis by one employee. Where onlysome positions in a title cannot be filled by one full time employee, they cannot be considered to bethe "same or similar" within the meaning of Civil Service Law §80, even though all positions havethe same title.

The following definitions of three types of "part time" employment must be applied by an agency

when such employees are affected by layoffs:

Shared Items

These are defined as situations in which two or more employees are paid from one full time

budgeted item and also share the same "work station" or work location. A typical shared itemsituation would exist when an office position is filled by one employee working mornings and asecond employee working afternoons. Shared item employees are considered interchangeable interms of duties and working hours. Items previously filled on a shared basis can subsequently befilled by one full time employee.

Split Items

These are defined as situations which two or more employees are paid from one full timebudgeted item but agency program needs require that the employees work in different locations or do different jobs at different times, or at the same time.

A typical example might be that three employees all work one third time at three locations

simultaneously to cover a peak workload situation. Such items cannot be filled full time by oneemployee.

Part Time Items

Some items are budgeted and/or classified for filling at less than full time. By definition, suchitems cannot be filled full time.

The rights of permanent employees to be retained in these three types of positions or todisplace into these positions will vary depending on which type of part time employment situation isinvolved.





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The following general guidelines are intended to promote fair and equitable treatment of employees. Agencies must exercise judgment in their application.

Shared Item Situations

Employees in shared items must be considered along with full time employees in layoff

situations. Where a shared item is abolished, the employees should be considered as if they wereserving full time in determining their retention, reassignment and displacement rights. Agenciesmay reassign such employees to work full time or less than full time at the discretion of theappointing authority. Permanent employees in shared items must be offered the same horizontalreassignment or vertical displacement as full time employees in the same title in the same layoff unit. Similarly, such shared item employees may be displaced by full time employees at a higher level.

Note: Provided however, that they are eligible for full time. To be eligible the part timeemployee must have either been full time, or have served for a year, or be reachable for fulltime from the eligible list

The following sample situation illustrates the principles involved and provides a guide toagencies in managing shared item situations. In this sample, all employees depicted arepermanent. The item which is shared is indicated by the box with two employees.

Clerk I 1982 Clerk I 1981Clerk I 1980

Clerk 2 1979

Clerk I 1983

Assume the Clerk 2 item is being abolished.

The Clerk 2 has bumping rights and chooses to exercise these rights. The Clerk 2 must becompared against all of the incumbents of the three items of Clerk I.

Clerk I 1983 is the least senior employee and must be laid off.

Clerk I 1980 has more seniority than the other employees and must be offered a Clerk Iposition full time.

· If Clerk I 1980 refuses to work full time, he is terminated without preferred list rights,

and Clerk 2 1979 bumps to the previously shared item as a full time employee.

· If Clerk I 1980 agrees to work full time, he continues in the previously shared item as

a full time employee. Clerk 2 1979 then bumps Clerk I 1982, who is laid off.

Suppose however that both the shared item Clerk I's had greater seniority. Then the Clerk 2would bump the least senior full time Clerk I and the shared item employees would not be affected.These results assume that the agency cannot accommodate the employees wishes for less thanfull time. The agency may, of course, decide to arrange alternative schedules for the employees if they meet program needs.





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Split Items and Part Time Budgeted and/or Classified Item Situations

Split items and items budgeted and/or classified as part time should be considered separatelyfrom full time items in the same title in all initial layoff and displacement situations. Full timeemployees having horizontal reassignment rights should be compared first against other full timeemployees in the title. Full time employees having vertical displacement or retreat rights should be

compared first against other full time employees in the lower level positions.Only when there are no full time positions available for horizontal reassignment and

displacement do we recommend that agencies compare the seniority of such remaining full timeemployees against employees in split item or part time budgeted and/or classified positions for possible horizontal reassignment or displacement.

Similarly, employees in split items and part time items should be considered for horizontalreassignment and displacement first against other employees in split items or part time items. Onlywhen there are no split items or part time items available for horizontal reassignment anddisplacement, do we recommend that agencies compare their seniority against employees in full time items.

The following sample situation illustrates the principles involved and provides a guide to

agencies in managing such situations. In the sample situation '83 and '78 are budgeted part time(50%) positions. The two Grade 10 positions (both 100%) are abolished. All employees depictedare permanent competitive, non probationers.

G 10

Sr. Service Rep

1979

G 10

Sr. Service Rep

1981

G 6 G 6 G 6 G 6

Service Rep Service Rep Service Rep Service Rep

'80 (100%) '82 (100%) '83 (50%) '78 (50%)

'79 bumps '82

· '81 lacks sufficient seniority to bump '80 and therefore '81 should be offered the 50%item held by '83.

· If '81 refuses then '82 should be offered '83's 50% position.

This situation would be exactly the same if '83 and '78 were a split item. (e.g., '83 and '78 bothworked half time mornings because of workload.)

Now assume in the above sample that the two G 10 items held by '79 and '81 are also 50%items. In that case:

· '79 would bump '83, but '81 lacks sufficient seniority to bump '78.

· '81 should be offered the full time item held by '82.

To reiterate, the opportunity to change from full time to split item or part time item, or vice versa,should be considered as an option that an agency should exercise for employees with no other opportunities. For example, an employee in a full time position below which there are no lower level





January 2006 56

occupied full time positions in direct line should then have his/her retreat rights determined. Onlywhere this employee has no retreat opportunities to a full time position would the agency thencompare the employee against employees serving in split item or part time positions who dooccupy positions in lower level direct line titles.

Reemployment List Rights Regardless of the type of position from which a permanent employee is laid off, they will have

their name entered on preferred lists and reemployment rosters. Part Time employees will becertified for both full time and part time vacancies if one of the following conditions are met:

· The employee had permanent full time service in the layoff title prior to accepting part time employment, or

· The employee completed at least one year of permanent part time service in the layoff title prior to the effective date of the layoff.

If neither of these conditions are met, the employee's name will only be certified for part timeemployment.

Employees unable to accept full time employment should be advised to write to the Career Mobility Office of the Department of Civil Service requesting that they be inactive for full timeemployment.





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PROCEDURES FOR EMPLOYEES WITHOUT RIGHTS

NON PERMANENT EMPLOYEES

All non permanent employees in titles to be affected by layoffs should be considered aspotentially identified for layoff. In locations where their positions will not be abolished their positions

MUST be made available for the horizontal reassignment of those permanent employees in the

same title at other locations whose positions are identified for abolition. Non permanent employeesmay be on leave from positions to which they can return if affected by layoff.

EXEMPT CLASS, UNCLASSIFIED SERVICE, AND NON COMPETITIVE/LABOR CLASS EMPLOYEESWITHOUT TENURE PROTECTION

Before terminating such employees, determine that they are not serving in their current positionas a result of the reclassification of a former position the abolition of which would have providedthem with rights. (See Appendix A RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES WHOSE

POSITIONS HAVE BEEN RECLASSIFIED)

Such employees may be on leave from positions to which they can return if affected by layoff.

Non competitive and labor class employees may have the right to request transfer pursuant to§86 of the Civil Service Law (See Appendix A TRANSFER OF VETERANS AND EXEMPT

VOLUNTEER FIREMEN (§86))





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PROCEDURES FOR PROBATIONERS

Employees who are on probation must be laid off before permanent employees who are not onprobation in the same title, in the same layoff unit, regardless of their relative seniority.

· Probationers who are on leave from a hold item are not eligible to bump or retreat.

· Probationers who do not have a hold item to which they can return are eligible to bumpor retreat ONLY if they have 5 years of continuous, satisfactory service.

· Probationers who are eligible should have their opportunities to bump or retreatdetermined only after employees who are not on probation have exercised their opportunities.

· Probationers cannot displace through bump or retreat any permanent employees whoare not on probation regardless of their greater seniority.

The steps required to return probationers to their hold items are similar to those required for non permanent employees.

Note: Employees who are on probation as a result of disciplinary procedures are not

probationers within the meaning or intent of §80 and §80 a, and must be treated withemployees who are permanent.





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REASONABLE ACCOMMODATIONS

The ADA (Americans With Disabilities Act) protects qualified workers with disabilities fromemployment discrimination and requires reasonable accommodations be provided during allemployment activities, including reductions in force and reemployment activities. A qualified

worker is defined as an individual with a disability who, with or without reasonable accommodation,can perform the essential functions of the job held or sought.

Reasonable accommodations may include making facilities used by interviewees or employeesaccessible and usable by individuals with disabilities. It can also include job restructuring, part timeor modified work schedules, the purchase or modification of equipment or devices, modifications of examinations, training materials or providing qualified readers or interpreters.

Accommodation is required unless it results in "undue hardship" significant difficulty or expense to the employer. Factors to be considered include the nature and cost of theaccommodation, the financial resources and overall size of the business in terms of the number of workers, the number of facilities and the structure and functions of the work force.





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REASSIGNMENTS

The term "reassignment" is commonly used to cover a variety of personnel changes. However,Classified Service Rule 1.2 defines reassignment as "...the change, without further examination, of

a permanent employee from one position to a position in the same title under the jurisdiction of the

same appointing authority." Reassignment is a management prerogative, and the majority of reassignments are "linechanges" in which the employee is moved from one item number to another in the same title andlocation, with no change in the employee's appointment status.

There are however, several situations in which the reassignment of employees is governed byCivil Service Law, Rule or policy:

1. Geographic reassignments necessitated by agency program needs when nopositions will be abolished but agency program and organizational needs require therelocation of employees, permanent employees may sometimes refuse to relocate.Rule 5.8 requires that the names of such employees be provided to the departmentso they may be placed on mandatory lists provided:

a. the new location is in a different county, andb. the employees meet the same criteria they would have had to meet to be

eligible for preferred list status pursuant to §80 or §80 a.

2. Horizontal reassignments necessitated by layoffs The term "horizontalreassignments" has been coined to describe those reassignments required by layoff situations. In these situations management does not enjoy all of the prerogativesassociated with the reassignments defined by Rule 1.2.When positions are being abolished, §80 and §80 a require that the least retentionrights/least senior employees be laid off while those with greatest retentionrights/seniority be retained. Where positions in a title affected by abolitions exist in

a number of geographic locations, it may become necessary to offer greater retention rights/more senior employees whose positions will be abolished"horizontal reassignments" to other locations to positions which will remain after theabolitions occur, and which are currently held by employees with lesser retentionrights/seniority.

________________________________________________________________

NOTE: At this point agencies should have already applied whatever method theyhave determined to use to "break ties." See Appendix A SENIORITY

________________________________________________________________

Moreover, since the employees being offered horizontal reassignment are beingretained pursuant to §80 or §80 a they have no legal rights to vertical displacement

under these sections, nor do they have a legal right to have their names placed onpreferred lists under §81. However, Rule 5.8 provides that the names of permanentemployees who refuse horizontal reassignment be placed on preferred lists andreemployment rosters provided the horizontal reassignment required relocation to adifferent county.

3. Reassignments necessitated by return of incumbent when contingent permanent

employees are affected by the return of prior permanent incumbents, management'sright to assign and reassign staff are circumscribed by the requirements of Rule 4.11.





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When the particular contingent permanent employee who is affected by the return of the prior permanent incumbent is not the most recently appointed in the title in the work location,and/or there are non permanent employees serving in the title in the work location, thecontingent permanent employee affected must be reassigned to another item within thework location. The specific procedures for the reassignment of contingent permanent

employees are described in the State Personnel Management Manual, 1810 ContingentPermanent Appointments (See also Appendix A CONTINGENT PERMANENT EMPLOYEES)





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RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES WHOSE POSITIONS HAVE

BEEN RECLASSIFIED

Employees who have had their positions reclassified are treated for purposes of layoff in their "new" title provided the reclassification has not changed their jurisdictional class or their status.

However, where reclassification has resulted in such a change, the following apply:

Competitive Class Position to a Non competitive Class Position

The following descriptions of the rights of non competitive employees whose positions aresubsequently abolished are based on §5.6 of the Rules for the Classified Service.

Tenure Protection

All such employees have tenure protection pursuant to §75.1(c) of Civil Service Law, regardlessof length of service or designation as performing duties of a policy influencing or confidentialnature.

Retention Rights

All such employees have retention rights under §80 a in layoff situations.

Displacement Rights

Such employees must first displace by retreat as specified under §80 a. Such displacementwould occur where a title and salary level change has occurred as part of the reclassification to thenew jurisdictional class.

Where, and only where, such retreat rights do not afford a displacement opportunity becausethe previous competitive title no longer exists, or exists at the same level, the affected employeewould be provided an opportunity to vertically "bump" or retreat as if they had remained in their former competitive class position.

Reemployment List Rights

Such employees will have their names placed on reemployment lists for their non competitivetitle and appropriate non competitive titles. In addition, they will have their name placed onreemployment lists for their former competitive class title.

Competitive Class Position to an Exempt Class Position

Tenure Protection

Such employees have tenure protection pursuant to §75 of the Civil Service Law.

Note: While exempt employees generally do not have tenure, those who were tenured intheir former competitive class positions and have had their positions reclassified, and whodo not have a position to which they may be returned, may not be terminated or otherwise

removed without the due process required by §75 and/or §80 or §80 a.

Retention Rights

Such employees do not have retention rights in the event of the abolition of their positions.

Note: "...their positions..." refers to their exempt class positions. However, if their currentexempt class positions are abolished, they must be accorded retention rights in their former competitive class positions.





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Displacement Rights

Such employees do not have rights to displace through vertical "bumping" or retreat in the

event of the abolition of their positions.

Note: Again the term "...their positions..." refers to their current exempt class positions fromwhich they would not have displacement rights. However, they must be accordeddisplacement rights (assuming they cannot be retained) from their former competitive classposition/title.


Such employees do not have statutory rights to preferred list status, but by policy, will have their

names placed on reemployment lists for their former competitive class titles.

Competitive Class Position to Another Competitive Class Position

with the Incumbent Serving Provisionally or Temporarily

Tenure Protection

Such employees do not have tenure protection pursuant to §75 of the Civil Service Law in their reclassified position. However, where such employees are not performing satisfactorily in thereclassified position, the agency may not terminate their services, but must restore them topermanent status in their former competitive title either through reinstatement to a vacant positionor through appropriate classification action.

Retention Rights

At the time of abolition of, or displacement from, their reclassified positions, such employeesshall be compared for retention rights in their former competitive class positions. The time spent innon permanent service in a reclassified item shall not be considered as a break in service for computation of seniority for layoff.

Displacement At the time of abolition of, or displacement from, their reclassified positions, such employees

shall have their vertical "bumping" or retreat rights determined as if they were in their former competitive class positions.


Such employees with insufficient retention rights in their former title, who are laid off or whorefuse a reassignment in their former title to a different county, will have their names placed onreemployment lists for their former title.

Non Competitive Class Position to a Non Competitive Class Position

Which is Confidential / Policy Influencing Tenure Protection

All such employees who had tenure protection pursuant to §75.1(c) of the Civil Service Lawprior to the reclassification would have such protection in their new title subsequent to thereclassification.





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Retention, Displacement and Reemployment List Rights

All such employees who had tenure protection pursuant to §75.1(c) of the Civil service Law prior to the reclassification would have retention, displacement and preferred list rights pursuant to §80 a in their new title in layoff situations. Their names will also be placed on reemployment lists.

Non Competitive Position to an Exempt Class Position.

Tenure Protection

All such employees who had tenure protection pursuant to §75.1(c) of the Civil Service Lawprior to the reclassification would have such protection in their new title subsequent to thereclassification.

Retention and Displacement Rights

Such employees do not have retention rights or displacement rights in the event of the abolition

of their exempt class positions.


Such employees do not have statutory rights to be placed on preferred lists, however all suchemployees who had tenure protection pursuant to §75.1(c) prior to the reclassification will, bypolicy, have their names placed on reemployment lists for their former non competitive class title.

Non competitive Class Position to a Labor Class Position

Tenure Protection

All such employees who had tenure protection pursuant to §75.1(c) of Civil Service Lawshall have the tenure protection as provided by their contractual agreement.

Retention and Displacement Rights

All such employees who had tenure protection pursuant to §75.1(c) of Civil Service Law

shall have their retention and displacement rights as provided by their contractual agreementin layoff situations.


All such employees who had tenure protection pursuant to §75.1(c) of Civil Service Lawshall have their names placed on reemployment lists for their former non competitive title andappropriate titles. In addition, they will have their names placed on reemployment lists for their labor class title.





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Effect of Reclassification of a Permanently Encumbered Position to a Title Allocated to a

Lower Salary Grade

When the duties of positions have changed such that they must be reclassified to a titleallocated to a lower salary grade, permanently encumbered positions are usually earmarkedand reclassified only when they become vacant.

Only rarely are such positions reclassified when still permanently encumbered. When,however, such permanently encumbered positions are so reclassified, it constitutes areduction in rank or salary grade as stated in §80 and §80 a of the Civil Service Law.

When this happens, the retention rights and seniority dates of ALL employees in the title,

within the layoff unit, MUST be considered in determining which specific employees will beaffected by such reclassification. When permanent employees having layoff rights areaffected, they shall be entitled to exercise their displacement rights, and their names shall beplaced on reemployment lists at the time of the reclassification. If their positions aresubsequently abolished their layoff rights accrue based upon their reclassified titles/salariesand positions.





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RETENTION RIGHTS

Throughout these Guidelines the term "retention rights" has been used whenever a comparisonof the layoff rights of employees must be made. Retention rights shall mean the relative right of anemployee to retain a position when compared with other employees in the same title in the same

layoff unit.Employees have different rights to be retained under §80 and §80 a according to jurisdictionalclassification and their appointment status in a position.

All employees who are appointed on a temporary or provisional basis have less right to be

retained than employees who have been appointed permanently. Among permanent employees

those who are on probation have less right to be retained than those who are not on probation.

Where permanent employees have the same retention status, their relative right to retain aposition among themselves is then determined by their layoff seniority dates.

In summary:

Without Retention Rights

· Provisional and temporary employees, · Employees in exempt and unclassified service positions,

· Non competitive class (and labor class) employees who do not have tenure protectionpursuant to §75.1(c) of the Civil Service Law, and negotiated agreements.

With Retention Rights

· Permanent competitive class employees, including probationers and contingentpermanent employees appointed under Rule 4.11.

· Permanent non competitive (and labor class) employees having tenure protectionpursuant to §75.1(c), and negotiated agreements.

NOTE: Some employees who have had their positions reclassified may have tenureprotection, retention rights, displacement rights and reemployment list rights, which accrueto them as individuals, provided they had such rights in their positions prior to thereclassification. (See Appendix A RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES

WHOSE POSITIONS HAVE BEEN RECLASSIFIED)

NOTE: Labor class employees are not specifically covered by the law, but receive the samerights as non competitive class employees through negotiated agreements.





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RETIREMENT

Some employees who are eligible will consider retirement when layoffs are announced. Thosewho retire prior to the abolition of their positions or prior to their displacement from their positions

are not eligible to displace nor to have their names placed on reemployment lists.

Those who retire on or after the date of layoff and are eligible, will have their names placed onreemployment lists and certified just like any other laid off employee. If they are considered for reemployment, they may have their pensions affected if reemployed, unless they are reemployedpursuant to Sections 211 or 212 of the Retirement and Social Security Law.

Retirees should be advised that they may request inactive status on these lists.

It is strongly recommended that agencies refer their employees considering layoff to the NewYork State Retirement System.

Various “retirement incentive” programs have been offered in the past. They are generallyannounced in a General Information Bulletin issued by this department.





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RETREAT RIGHTS AND OPPORTUNITIES

The distinction made here and elsewhere in these Guidelines between rights and opportunities is a conceptual rather than a legal one. It is used to break the determinationprocess into two discrete procedural steps.

Step 1 Non competitive and labor class employees who have tenure protection rights under §75.1(c), and competitive class employees who have no bumping rights may have retreat rights

as follows:

1. Based on the employee's employment history find the last position to which theemployee was permanently appointed which is also at a lower salary grade level. Skipintervening same or higher level titles, or titles at any level without permanent status, butstop at the first lower level position to which the employee was appointed on apermanent basis. Whether an employee has had continuous service since thisappointment is not relevant.

2. Determine whether this title now exists in the same layoff unit in which the employee is

serving. Note that the employee need not have been appointed to the title as anemployee of the layoff unit or even as an employee of the agency, as long as the titlenow exists in the layoff unit.

3. Determine whether the positions in this title are occupied. They can be occupied byeither permanent or non permanent employees. If the positions are all vacant, or beingabolished, they are not available for retreat. (Vacancies not being simultaneouslyabolished are, however, available at the discretion of the agency, for reinstatement butnot for retreat.)

4. Determine whether the service of the employee in the former lower level position wassatisfactory.

If all these criteria are met, the employee has retreat rights. If any one of them is not met, the

employee has no retreat rights. Retreat may occur to positions in a different jurisdictional class.

NOTE: Competitive Class employees who have bumping rights but insufficient retention

rights or seniority to exercise their opportunity do not have a right to retreat.

NOTE: Probationers who are on leave from a hold item in which they were permanentcannot retreat at all. They may return to their hold item. Probationers without a hold itemmay retreat if they have five years of continuous, satisfactory service (Rule 5.5(d) and

5.6(d)). They then complete the remainder of their probation in that position.

NOTE: Retreat may only occur to the last title to which the employee was permanentlyappointed at a lower level. Where the title does not exist, or is being simultaneously

abolished, the employee has no right to retreat.NOTE: Where the positions have been reclassified, employees may only retreat providedthere have been no substantial changes in the duties of the positions.

NOTE: Employees can retreat to a title to which they were permanently appointed eventhough they may not have actually served in the position. Service is deemed satisfactory if they were not terminated from the position during probation or by disciplinary removal.





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Step 2

After determining that an employee has retreat rights, determine if a retreat opportunity exists

by answering the following questions:

1. Does the employee have equal or greater retention rights than the least retentionrights/least senior employee in the lower level title?

· A non probationer must displace first, any non permanent employee, and if there are none, a probationer, and if there are none, a non probationer.

· A probationer must displace first, any non permanent employee

NOTE: Probationers who are on leave from a hold item in which they were permanentcannot retreat at all. They may return to their hold item. Probationers without a hold itemmay retreat if they have five years of continuous service (Rule 5.5(d) and 5.6(d)). They then

complete the remainder of their probation in that position.

2. If the employees have equal retention rights, does the retreating employee have greater seniority than the least senior employee in the lower level title? (Equal seniority meansthe employee cannot displace through retreat.)

"Yes" answers to both questions means the employee can exercise a retreat opportunity. A

"No" answer to either question means that no opportunity is available.

The retreating employee has only one opportunity to displace by retreat the least senior/ least

retention rights employee. The employee cannot choose to displace any permanent employee

with less seniority. However, all non permanent employees must be considered to have the least

retention rights in the title, and therefore, where there are several non permanent employees in thelower level at different work locations, the employee has the right to choose to displace to any suchwork location. Where two or more non permanent employees are serving in the same worklocation, the agency determines the position to which the employee will retreat.





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SENIORITY

Seniority for purposes of layoff is not synonymous with seniority for other purposes such asretirement, anniversary dates, leave accrual, or for bidding for shift work or pass days.

For purposes of layoff, an employee's seniority date is defined as the date of original

permanent appointment in the classified service and continuous service since that date .This date is adjusted however for:

· veterans who get 2 1/2 years additional seniority

· disabled veterans and the spouses of disabled veterans who get 5 yearsadditional seniority

· the legally blind* (as determined by the Commission for the Blind) who regardless of their original date of permanent appointment are considered the most senior employees of all employees in their title in the same category of retention status.

· employees with interrupted service (see below)

Interrupted Service Employees who resigned and who were reinstated or reappointed to the competitive or non

competitive class or, by negotiated agreement, in the labor class, on or after October 17, 1985

should have had their seniority dates recalculated pursuant to §80.3 or §80 a.3, Interrupted

Service.

Under these sections, employees permanently reinstated or reappointed retain full senioritycredit for the period of service prior to their resignation if they return within 3 years. If they returnedafter 3 years, their seniority date is determined at the time of reappointment by a pro rata reductionof seniority credit for any time out of service exceeding three years. Example: 7 years previousservice, 4 1/2 years absence, 5 1/2 years seniority credit upon return.

Their continuous service is then determined based upon this recalculated date.

(See General Information Bulletin #85 08, October 15, 1985; Reconstructed Seniority DateRequest Procedures and Policy Bulletin #85 03 in 1800 of the State Personnel Management

Manual..)

Breaking Ties

Agencies may use any reasonable and consistent method for breaking ties amongemployees with the same seniority dates. Some methods which have been used are:

· for recently appointed employees hired on the same date the score on the eligible listfrom which they were appointed

· earlier date of appointment to the title, or to a position in the organizational unit

· comparisons of performance evaluations*NOTE: Employees who are blind in one eye, for example, are not legally blind.

NOTE: Permanent classified service in the Office of Court Administration is credited thesame as permanent classified service in the State service. Employee seniority dates shouldreflect such service. Agencies must update seniority rosters as required if such service wasnot included on the payroll transaction initially appointing an employee to a classifiedservice position in a state agency.





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NOTE: Employees who have been covered into the State service (Section 45) have their seniority date determined by the effective date of their first permanent appointment in theclassified service (for most, this will be the date of cover in); amongst themselves it is their relative seniority with their former employer.





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TENURE PROTECTION PURSUANT TO §75.1 (C)

To be eligible for the rights and protections of §80 a, non competitive and labor classemployees must first meet the requirements of §75.1(c). These are:

1. They must not be in positions designated as confidential or policy influencing. Non

competitive class titles are listed in Appendix 2 of the Civil Service Law, and some aredesignated as policy influencing or confidential with the Greek letter f. Do not confuse

"confidential" with the bargaining unit designation "management confidential;" they arenot necessarily related.

2. They must have at least one year of continuous service in their respective jurisdictionalclass prior to the date of layoff. The law says "five" years, but negotiated agreementssay "one" year. (The one year is applied to all employees, whether or not they arecovered by contracts.) The one year of service need not be permanent service to bequalifying for §75.1(c) rights, but the employee must be permanent at the time of layoff.The service must be continuous. This means there cannot be a break of more than oneyear.

Employees who meet these criteria are provided with retention rights, retreat rights, andreemployment list rights. Employees who do not meet both criteria are terminated when positionsare abolished with no retreat or reemployment list rights. (Except see Appendix A RECLASSIFICATIONS THE RIGHTS OF EMPLOYEES WHOSE POSITIONS HAVE BEEN

RECLASSIFIED)

Labor class employees are provided the same rights as non competitive class employees bynegotiated agreements.





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TRAINEES AND PUBLIC MANAGEMENT INTERNS

Traineeship titles

Where there are traineeship titles through which employees advance to reach a journey leveltitle, employees in all trainee titles and the journey level must be considered as a group for purposes of retention and displacement.

For example, if a competitive class position of Senior Personnel Administrator is to beabolished, all employees in the following titles in the layoff unit in the competitive class must beranked for purposes of retention:

Personnel Administrator Trainee IPersonnel Administrator Trainee IISenior Personnel Administrator

This will require the creation of a seniority roster under a single "dummy" title code. Titlescovered by the two year administrative traineeships are affected by program requirements

specifically for that program. Agencies which are anticipating layoffs in positions which includetraineeship titles should discuss this with their Staffing Services Section.

Public Management Interns

The Public Management Intern Program is designed to provide for selection and placement of individuals with master's degrees in a variety of titles.

During the first year Interns serve in the title of Public Management Intern and agencies arereimbursed for their salaries. At the end of the first year they may be advanced to the journey levelof previously designated target titles.

Layoff

If a Public Management Intern (first year) position is abolished, the least senior Intern in thelayoff unit would be laid off, regardless of track.

The retention and displacement rights of "second year Interns" stem from their respective G 18target title. They may be able to bump a Trainee I or II leading to the same target title or they mayhave a retreat against a first year Intern in the same layoff unit.

Reemployment

Laid off first year Interns will have preferred list rights to new PMI positions (day 1) andreemployment roster rights to PACT blueprint titles (day 1 of Trainee II for two year administrativetrainee titles and day 1 of entrance level for appropriate titles.)

Unlike most other RIF situations, the layoff of a second year Intern removes the individual from

more than his/her current title. In effect, the individuals, who are still within the two year construct of the program, will have reemployment rights derived from both their layoff title and the PMI transitiontitle. The net effect of this is twofold:

· It provides preferred list eligibility to laid off second year Interns for new PMIpositions, and;

· It provides reemployment roster eligibility to second year Interns (laid off from non PACT titles) for PACT blueprint titles.





January 2006 74

Former Interns who are laid off after completing the two year program are consideredmainstreamed. Our original commitment to them has run its term and they are no longer part of thePMI program. Such individuals have reemployment rights derived from their target title only.

In the event of a layoff in the title of Public Management Intern (first year Intern), the PMI unit willmanage place against new internships and Reemployment Services will certify for all other

appropriate titles.Administration of the reemployment process for second year Interns will require special handling

by Reemployment Services and the PMI Unit. Affected Interns will be identifying their associationwith the PMI program by entering [PMI] immediately following the layoff title on their green card.





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TRANSFER OF VETERANS AND EXEMPT VOLUNTEER FIREMEN (§86)

Civil Service Law §86 provides that non competitive class or labor class employees whosepositions are abolished and who do not have layoff rights under §80 a have, for one year from thedate of layoff, rights to request a transfer to another similar vacant position at the same salary

grade provided they are either: · Honorably discharged veterans who served in time of war (as defined in Civil ServiceLaw §85), or

· Exempt volunteer firemen (as defined in the General Municipal Law, §200)

Note: As defined in the General Municipal Law, an “exempt volunteer fireman” is avolunteer firefighter who has been certified as exempted from performing the full duties of avolunteer firefighter after a defined period of volunteer service. It has nothing to do with the“exempt” jurisdictional class.

As with tenure protection pursuant to §75.1 (b), this right is not provided to " private secretaries,

cashiers or deputies of any official or department."

The exercise of a request for transfer rights under this section is a rare occurrence in layoff situations and no body of standard administrative policy or procedure has been developed for handling such cases. However, agencies should be aware that the law states that appointingauthorities have a duty to effect such transfers. It has been generally accepted that the employeeis responsible for identifying the positions available for transfer pursuant to this section.





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VETERANS, SPOUSES OF DISABLED VETERANS

and BLIND EMPLOYEES (§85.7)

Additional seniority in layoff situations is provided to certain employees who are permanent inthe competitive class, and those who have layoff rights under §80 a (i.e., permanent employees in

the non competitive and labor class who have tenure protection under §75.1 (c)).. · Disabled veterans' seniority dates are deemed to be 60 months (5 years) earlier than

their date of original permanent appointment to the classified service. Disabled veteransare those so defined by the Veterans Administration. This status must be established onor before the date of layoff, and cannot be retroactively applied if this status is grantedafter that date.

· Non disabled veterans’ seniority dates are deemed to be 30 months (2 1/2 years)

earlier than their date of original permanent appointment to the classified service.

· The spouses of disabled veterans who have a 100% service connected disability and

who are also head of household have seniority dates which are deemed to be 60months (5 years) earlier than their date of original permanent appointment to the

classified service. · Blind employees who are permanent in the competitive or non competitive or labor

class are granted absolute preference in retention by §85.7. Since the wording of §85.7requires it to be read in conjunction with §80 (or §80 a), and the provisions of theselatter sections distinguish between the rights of probationers and non probationers, blindemployees are provided absolute preference in a title as a probationer, or as a non probationer, as the case may be. Therefore, a blind probationer, while deemed to be the"most senior" of all probationers, would be laid off before any employee in the title in thelayoff unit who was not a probationer.

· State residency at the time of layoff is now required to receive additional seniority, as

required in Section 85.1(a) which was amended in 1993.

The terms "veteran," "disabled veteran," and “spouse of disabled veteran” are defined in CivilService Law §85 which also includes the definition of "time of war" during which the veteran or disabled veteran was required to serve to be eligible for additional seniority credits. See, generally,State Personnel Management Manual Section 2300 and Advisory Memorandum #93 07,

Veteran’s Status and Definitions Revised , but note that the residence requirement for retention

was enacted subsequent to these publications.

“Blind employees” are those certified as legally blind by the Commission for the Blind.

NOTE: Employees who are blind in one eye, for example, are not legally blind.





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WORK LOCATIONS AND LAYOFF UNIT DESIGNATIONS

Most employees actually work in the location which is their official work station. However, thereare a variety of situations in which there may be a difference between the actual work location(where the employee reports to work each day) and the official work station (the location for payroll

purposes as identified in Civil Service and Division of the Budget records). In layoff situations thesedifferences may critically affect an employee's rights. The policies and definitions below have beendeveloped to provide a reasonable and equitable method for treating the various types of situations which may arise when such differences occur.

For All Departments and Agencies EXCEPT The Offices Of Mental Health And Mental

Retardation and Developmental Disabilities

TEMPORARY DUTY OR TRAVEL SITUATIONS

Employees are assigned to work temporarily in various locations but their official workstation is the Civil Service Department/Division of the Budget designated location. Theseemployees are treated for purposes of retention, horizontal reassignment, vertical bumping

and retreat, in accordance with their official work station location.WORKING AT ANOTHER LOCATION IN THE SAME LAYOFF UNIT UNDER THE SAMEAPPOINTING AUTHORITY

These situations exist when the Division of the Budget and Department of Civil Servicedesignated location is not the same as the employee's actual work location, but bothlocations are within the same layoff unit. Since both locations are in the same layoff unit,location is not a relevant factor in determining vertical bumping or retreat rights. However,such employees should be considered to be at their actual work location for purposes of horizontal reassignment.

WORKING AT ANOTHER LOCATION IN A DIFFERENT LAYOFF UNIT UNDER THE SAMEAPPOINTING AUTHORITY

These situations exist in agencies having multiple layoff units when the Division of theBudget and Department of Civil Service designated location is not the same as theemployee's actual work location, and the two locations are not within the same layoff unit.The employee must be considered in the layoff unit encompassing his/her actual worklocation in exercising their retention and displacement rights. Official agency seniorityrosters should be adjusted accordingly.

For The Offices Of Mental Health and Mental Retardation and Developmental Disabilities

Employees of these agencies work at various facilities, satellite units, or in a Central Office.Each facility is a separate appointing authority; while central office staff is under the appointingauthority of the Commissioner. For these agencies, layoff units may include more than one

appointing authority. In addition, negotiated agreements further modify the layoff rights of someemployees. The following is intended to clarify layoff unit designation in certain situations.

TEMPORARY DUTY OR TRAVEL SITUATIONS

Such situations are treated the same as in other agencies. (See above.)

CENTRAL OFFICE EMPLOYEES ASSIGNED TO A FACILITY WORK LOCATION

Such employees are grouped on a central office payroll solely for administrative purposes. Theyare to exercise their retention and displacement rights within the layoff unit encompassing their actual work location.





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FACILITY EMPLOYEES

Collective bargaining agreements and §72.1 of the President's Regulations define the retentionand displacement rights of employees relative to layoff unit designations. All facility employeesexercise their rights first at their facility for purposes of retention. They then exercise horizontalreassignment, vertical bumping and retreat rights in the defined layoff unit encompassing that

facility. (See example in LAYOFF METHODS AND PROCEDURES)

Employees working in "satellite" locations and employees working at a facility location other thantheir payroll facility are treated in the same way relative to layoff unit designation. That is, anemployee whose position is officially designated to one facility and is either stationed in a satelliteunit which may be located on the grounds of another facility, or an employee whose actual worklocation is at another facility, exercise retention and displacement rights as employees of their officially designated payroll facility.





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APPENDIX B: LAWS, RULES, REGULATIONS AND POLICIES

GOVERNING LAYOFFS

LAWS:

§70.2 Transfer of Personnel Upon Transfer of Functions§75.1(c) Tenure Protection for Non Competitive Class Employees

§78 Transfer of personnel upon the abolition of positions in state civil service

§79 Establishment of redeployment lists in the state service; general provisions

§80 Layoffs in the Competitive Class

§80 a. Layoffs in the Non Competitive Class

§81 Preferred lists; certification and reinstatement therefrom

§81 a Reemployment rosters in the state service; certification and reinstatement therefrom

§81 b Placement rosters in the state service

§85.1(a) Additional credit allowed veterans in competitive examinations; preference inretention upon abolition of positions

§85.7 Preference in retention upon the abolition of positions

§86 Transfer of veterans or exempt volunteer firemen upon abolition of positions.

RULES and REGULATIONS:

Rule 4.11 Permanent appointment to encumbered positions

Rule 5.5 Layoff of Competitive Class Employees

Rule 5.6 Layoff of Noncompetitive Class Employees

Rule 5.7 Refusal or failure to accept reinstatement from competitive and noncompetitivepreferred lists

Rule 5.8 Placement rosters

President’s Regulation §72.1 Separate units for suspension, demotion or displacement

SEE ALSO

State Personnel Management Manual sections

· 1450 Preferred Lists

· 1460 Reemployment Rosters

· 1470 Placement Rosters

· 2300 Reductions in Force

Other Department of Civil Service publications:

· “Information for State Employees Affected by Layoff”

· “Employee Guide for Agency Reduction Transfer List”



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