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West Virginia University Institute of Technology

Classified Staff Council

RIF Rules as Accepted by Common Grounds

Title 133

Procedural Rule

West Virginia Higher Education Policy Commission

Series 56

Reductions-in-Force

 

§133-56-1        General

1.1       West Virginia Code §18B-7-16(a)(1) requires the study and development of a “…fair and rational policy based upon best human resources practices for covering reductions in force, furloughs and other issues relating to seniority…”.  These very issues have been the subject of prior studies and reports including ones from 2008, 2010 and 2011.  In the conduct of the earlier studies, affected constituent groups have been represented and proposed methods and processes agreed upon but no final, formal guidance document has ever been produced.  This Procedural Rule follows and consolidates the findings and recommendations of those earlier efforts into one document that now outlines the controlling terms and conditions for institutions to use when forced to engage in a reduction in force or a furlough of classified employees. 

1.2       This Procedural Rule incorporates by reference those applicable definitions and conditions outlined in West Virginia Code §18B-7-3 as well as Title 133, Series 8 and 39 Procedural Rules.  To the extent any of the provisions of those procedural rules are outdated or inconsistent with current law, they are interpreted in this rule so as to be consistent with current law. 

1.3       Authority.  West Virginia Code §18B-1B-5; §18B-4-2a; §18B-7; §18B-9 and; §18B-9A.

1.4       Filing Date. 

§133-56-2        Purpose and Applicability.

2.1       The provisions of West Virginia Code §18B-7-3 are applicable when there is:

2.1.a          A furlough, or an interruption in the employment relationship expected to be temporary in nature; or

2.1.b          A reduction in force (also referred to as a “RIF”), or a termination of the employment relationship expected to be permanent in nature subject to the right of recall; and,

 

2.1.c          The interruption or termination of the employment relationship is occasioned by the (1) lack of funds or work, or (2) abolition of a position, or (3) material changes in duties or organization. 

2.2       Employees to whom the provisions of West Virginia Code §18B-7-3 apply are:

2.2.a    (1) Classified employees (2) whose employment over the course of a calendar year accumulates to no fewer than one thousand forty (1,040) hours during that time, and (3) who are employed over a period of at least nine months during that time; or

 

2.2.b    Any non-classified employee who was involuntarily transferred from a classified position into a non-classified position for which he/she did not apply and who may be affected by any of the situations to which West Virginia Code §18B-7-3 applies. 

§133-56-3        Seniority for Furloughs/RIFs.

3.1       Any furlough or RIF is to be conducted on the basis of seniority as defined under West Virginia Code §18B-7-3. 

3.2       Seniority for furlough/RIF purposes is measured by permanent employment in the state’s system of higher education.  Employment with other state agencies or contract, informal or temporary employment by any state higher education institution will not be credited for RIF seniority purposes. 

3.3       Any less-than-1.0 FTE position or less-than-12 month employment term will be calculated and credited as the appropriate fractional equivalent of that amount of seniority.

3.4       In the event of a furlough/RIF, seniority among affected employees will be measured in the largest calendar unit (e.g., month, week, day, etc.) necessary to determine which employee among the affected group has the greatest degree of seniority.

3.5       In the event two or more affected employees are identified with identical seniority by the lowest measureable calendar unit (one day), the controlling priority will be determined by a random selection method (e.g., drawing straws or cards) as determined by the employees and approved by the institution. 

3.6       In the event an employee has experienced a break in service, the employee will be credited with all qualifying permanent employment in the state’s system of higher education excluding that time attributable to any breaks in service.

§133-56-4        Bumping Process.

4.1             An institutional decision to furlough or RIF employees as the result of a lack of funds, abolition of position(s) or material changes in duties or organization, will trigger the following process.

4.2             The institution must first determine what classified positions will be furloughed or eliminated as the result of a lack of funds, abolition of position(s) or material changes in duties or organization.  This determination should be made independent of any consideration of the incumbent(s) currently filling such position(s).  The institution should also be prepared to articulate the financial need or other considerations behind the decision about which position(s) to furlough/RIF. 

4.3             Once position(s) to be furloughed/RIF’ed are identified, the institution must then identify potentially affected incumbents based upon job classification and seniority. 

4.4             Affected incumbents in their order of seniority should then be matched with and offered any vacant classified position(s) in the same or in another pay grade from that currently occupied by the incumbent and for which the incumbent is minimally qualified to perform.  For purposes of this rule, a position is “vacant” only upon its designation by the institution as a funded and available classified position vacancy the institution actually intends to fill.  Positions that may be otherwise reported as “vacant” but for which there is no current funding allocated or there is no immediate intent to fill by the institution are not considered positions available to be filled in the event of a RIF/furlough. 

4.5             The process for matching and offering vacant positions to affected incumbents shall be as follows:

4.5.a    The institution’s human resources department will review the work history (including, if available, that employee’s history of work at other West Virginia institutions of higher education) of the most senior incumbent to determine potential position matches between that incumbent and the institution’s existing vacancies.  At the same time, the human resources department will determine the highest pay grade to which that incumbent has ever been assigned.  Finally, in the event there is an existing, non-exempt vacancy in a pay grade above the highest pay grade ever held by the most senior incumbent, the most senior non-exempt incumbent must also be advised of that vacancy and offered the opportunity to demonstrate whether he/she meets the minimum qualifications for the vacant position before being forced into a lateral or lower vacancy by the RIF/furlough.

4.5.b    The most senior incumbent must be offered the opportunity to accept the existing classified vacancy in the highest pay grade to which that incumbent has ever been assigned or, in the event a non-exempt incumbent demonstrates that he/she meets the minimum qualifications of an existing, non-exempt vacancy that is in a pay grade above the highest pay grade ever held by that employee, the higher pay grade vacancy must be offered to that minimally-qualified, most senior incumbent.

4.5.c    Prior to deciding whether to accept reassignment to an existing vacancy in the same or another pay grade, the incumbent must be informed by the human resources department in writing of the consequences of that decision (e.g., a refusal of reassignment to a lower pay grade does not affect recall rights; a refusal of reassignment to a lateral or higher pay grade will result in a loss of recall rights; acceptance of a vacant position as opposed to a layoff with recall rights will permanently place the employee in the newly-assigned position subject to other classified rights; whether, in the case of a decrease in pay grade, the institution will nonetheless elect to exercise its right under §7.3 of this rule to keep the employee at the same rate of pay).  This notice may be provided by means of the form letter provided to all affected employees. 

4.5.d    Once the most senior incumbent has accepted and has been reassigned to an existing vacancy, the process begins again at §4.5.a with the next most senior incumbent affected by the RIF/furlough. 

4.5.e    The process outlined in this section will continue until such time as all existing classified vacancies at the institution are filled or there are no more affected incumbents who are minimally qualified to perform the functions of remaining vacant positions.

4.6             Once all such existing vacancies are exhausted/filled, the institution must then identify the individual with the lowest amount of seniority in the affected incumbent’s pay grade or any lower pay grade.

4.7             Upon the identification of the individual with the lowest amount of seniority in the affected incumbent’s pay grade or in a lower pay grade, the most senior affected incumbent will be offered that least senior employee’s position, thereby triggering that employee’s internal bumping rights (to be exercised in a manner consistent with this rule). 

4.8             In the event a furlough/RIF requires the elimination of more than one position, the bumping process for the most senior affected employee shall first be concluded before then moving to the next-most-senior affected employee. 

4.9             The process of identifying and displacing less senior employees as described above will continue until such time as all senior employees affected by the furlough/RIF and the bumping process are placed or RIF’ed. 

4.10           In the event a bumped non-exempt employee meets the minimum qualifications for a non-exempt classified vacancy in a pay grade higher than that ever held by that employee that has not already been filled through the process outlined in this section, that bumped non-exempt employee must be afforded the notice of that vacancy and the opportunity to demonstrate that he/she meets the minimum qualifications of that vacancy.  In the event the bumped non-exempt employee does meet those minimum qualifications, the bumped non-exempt employee will be reassigned to the vacancy as opposed to being laid off and placed on the recall list. 

4.11           All employees who are bumped without immediate recourse to another position based on seniority will be placed on a preferential rehire list to be maintained by the institution. 

4.12           Non-classified employees who have been transferred involuntarily to such a position without having applied shall be entitled to exercise the rights/processes outlined in this section upon any determination that that employee’s non-classified position will be furloughed/RIF’ed as the result of a lack of funds, abolition of position(s) or material changes in duties or organization.  Such affected non-classified employees retain the right to bump into classified positions at or below the affected employee’s last classified pay grade for which that employee is qualified to perform.  Seniority for such affected non-classified employees will credit all periods (including that time in the involuntarily-transferred non-classified position) of permanent employment in the state’s system of higher education. 

§133-56-5        Preferential Recall List.

5.1       Each institution that engages in a furlough/RIF shall maintain a preferential recall list populated with the names of those classified employees who are unable to bump into any vacant or lower-seniority positions.  The preferential recall list shall be maintained by pay grade and by seniority within each pay grade. 

 

5.2       Any classified employee may refuse without penalty any offer to fill a vacant/bumped position in a pay grade lower than that employee’s current pay grade.  In such circumstances, the employee refusing the reassignment shall be placed on the preferential recall list.  Any classified employee who accepts an offer for a reassignment to a lower pay grade shall have his/her salary reduced to the appropriate level on that lower pay grade; provided, however, an institution may for valid operational reasons offer to continue such an employee at the employee’s last rate of pay in the higher pay grade, in which case the employee will be precluded from exercising bumping rights.

 

5.3       Any classified employee may refuse without penalty any offer to fill a vacant/bumped position that would result in a change in that employee’s status from full-time to part-time.  In such circumstances, the employee refusing the reassignment shall be placed on the preferential recall list.

 

5.4       At the time of any furlough/RIF, affected employees who are put on the preferential recall list must be notified by the institution of their rights regarding preferential recall and their obligation to maintain an active and updated listing on the preferential recall list.  Such notice must provide to the employee: (1) a copy of this Procedural Rule; (2) the affected employee’s job title, pay grade and seniority as of the date of the furlough/RIF; (3) the expiration date of the employee’s listing on the preferential recall list (one year from the date of the furlough/RIF or one year from the date the preferential recall listing was last updated, whichever is later); (4) information on the process necessary to update the employee’s listing on the preferential recall list, and; (5) notice that a failure by the employee (a) to update his/her listing within one year, or; (b) to keep the institution advised of an up-to-date address, will result in a termination of that employee’s preferential recall rights. 

 

5.5       There is no action necessary on the part of the institution to remove or to exempt any employee’s name from the preferential recall list upon the expiration of the appropriate listing period.  While physically remaining on the preferential recall list, the name of any employee whose listing is more than one year old or who has failed to update his/her listing within the last year shall be considered to have been removed from the preferential recall listing.  The expiration of an employee’s placement on the preferential recall list shall result in a permanent waiver of that employee’s preferential recall rights. 

§133-56-6        Recall of Furloughed/RIF’ed Employees.

6.1       Employees on the preferential recall list shall be entitled to be notified of and recalled to any classified vacancy in the pay grade within which the employee had previously been employed, to any lateral position for which the employee may be qualified or—in the case of non-exempt employees—to any higher pay grade, non-exempt position for which the employee may meet the minimum qualifications. 

 

6.2       Upon the creation of a new, classified position at the institution or upon the creation of a classified position vacancy the institution elects to fill, the institution shall notify all those with active listings on the preferential recall list of the existence of such position/vacancy.  Notice of such position/vacancy shall be sufficient if it is provided by certified mail to the last known address for such individual maintained by the institution.  Such notice shall be distributed to employees on the preferential recall prior to any efforts by the institution to fill the vacancy from sources other than the list.  It is the obligation of every employee on the preferential recall list to ensure the institution maintains an up-to-date address for that employee.

 

6.3       Employees on the preferential recall list shall be offered classified vacancies in the institution in the order of the seniority of each employee with an active listing on the list. 

 

6.4       All employees on the preferential recall list shall be notified of all vacant classified positions at the institution, including those in higher and lower pay grades from those previously occupied by individuals on the preferential recall list. 

 

6.5       While any classified employees remain on an institution’s preferential recall list, that institution may not make any new hires into the classified employee ranks until such time as all employees on the list have been properly notified of and offered the opportunity for recall and reemployment into any such vacancies.  An institution may hire new classified employees in the event: (1) no employees remain on its preferential recall list; (2) no employees remaining on the preferential recall list are qualified for existing vacancies, or; (3) any employee remaining on the preferential recall list has been given and refused the opportunity for recall and reemployment. 

6.6       Any employee on the preferential recall list who refuses an offer of recall other than to a lower pay grade shall be removed from the preferential recall list and all rights to reemployment terminated unless the individual can demonstrate compelling reasons for such a refusal.

§133-56-7        Other RIF Issues.

7.1       There is no statutory authority that permits different treatment in the conduct of a furlough/RIF for classified employees whose positions are funded directly by an institution as opposed to those whose positions are funded through an external means (e.g., grant or contract-funded).  Similarly, there is no statutory authority to limit bumping rights to classified employees who have completed a probationary period.  Finally, there is no statutory authority to limit bumping and recall rights to a particular division or campus within an institution.  All classified employees, regardless of funding, time-in-position or assigned campus/division, are to be treated similarly for purposes of this Procedural Rule

 

7.2       In order to limit the institutional disruption and administrative burdens that can be occasioned by the bumping process, employees who are subject to the RIF/bumping process must first be placed into any vacant classified positions at the institution and, once those have been filled, to the position held by the least senior employee in that pay grade (as opposed to the position held by any less senior employee in that pay grade). 

 

7.3       A furloughed/RIF’ed employee transferred into a vacant position in a lower pay grade in accordance with the terms of this Procedural Rule but whose pay the institution elects to maintain at the employee’s most recent rate in the higher pay grade shall have no right to bump less senior employees in the affected employee’s same pay grade nor is such an employee eligible for placement on the preferential recall list. 

 

7.4       There is no hard and fast rule addressing how employees in positions with different levels of FTE (full-time equivalency) are to be handled in the case of a furlough/RIF. 

 

7.4.a    In general, a RIF’ed employee transferred from a full-time position (anything above a 0.53 FTE) to a part-time position (anything below 0.52 FTE) will be entitled to exercise bumping rights. 

 

7.4.b    In general, any full-time employee RIF’ed into another full-time position in the same pay grade, even if such a move decreases an employee’s net pay shall be ineligible for bumping. 

 

7.4.c    Institutions should apply a consistent practice for determining when a reduction in an affected employee’s FTE level that nonetheless leaves the employee in the same status will trigger the bumping process at that institution.  In advance of any furlough/RIF, an institution may adopt and disseminate a uniform rule for the treatment of such employees provided that the provisions of any such rule are no less favorable to the affected employees than the provisions of this Procedural Rule (e.g., an institutional rule could define a reduction of more than 0.20 FTE—regardless of whether the employee’s status as full- or part-time is affected—as sufficient to trigger the bumping process). 

 

7.5       Employees of organizations under the jurisdiction of the Higher Education Policy Commission (HEPC) may not bump employees under the jurisdiction of the Community and Technical College System (Council) and vice-versa.  An employee performing a dual service for a formerly administratively-linked community and technical college and a former sponsoring institution under the jurisdiction of the HEPC is an employee of the institution under the jurisdiction of the HEPC if that institution receives a fee from the Council institution for the service performed.