Ensuring DHRM Rule Changes Don’t Adversely Impact You as a State Employee

The Utah Public Employees’ Association’s (UPEA’s) Human Resource Policy and Rules Committee monitors the Department of Human Resource Management’s (DHRM’s) draft rule changes every spring and provides comments.

After attending DHRM’s yearly rules hearing on June 7, UPEA Field Services Manager Christy Cushing met with DHRM Labor Relations Director Rebecca Parr, DHRM Legal Compliance Review Manager Tim Evans, and DHRM Human Resources Specialist Bryan Embley to review DHRM rule changes for FY2019.

This year, DHRM incorporated three of UPEA’s five rule recommendations. These include:

  1. As of July 1, state agencies will not be allowed to require employees to maintain a minimum balance of accrued leave. Twice last year, a manager at an Office of Recovery Services office required employees to have 80 hours of annual leave accrued before approving any future annual leave requests. DHRM rules already mandate that agencies allow every employee the option to use annual leave each year for at least the amount accrued in the year (R477-7-3(5)). When UPEA heard from two employees that their leave requests were being denied because of their lack of accrued leave, it filed a grievance on their behalf. To ensure all state agencies clearly understand they cannot require minimum leave balances for any type of leave, DHRM agreed to add the new language to the rules.
  2. For various reasons, state agencies can grant employees career mobility assignments as a mechanism to learn additional skills by completing job duties outside their original positions. Typically, only agencies, not employees, can offer a career mobility assignment, which is why UPEA recommended the elimination of the language “employees and agencies are encouraged to promote career mobility programs” (R477-4-13) from DHRM rules clarify the rules.
  3. Before last year, state employees were allowed to rescind their intent to retire or resign from state government within 24 hours of giving their notice. When DHRM modified this rule, it permitted employees to seek agency management consent if they wanted to withdraw their notice of resignation or retirement (R477-12-1(1). Because all managers are not authorized to hire staff, the rule was amended to now grant only the “agency head or designee” the ability to invalidate an employee’s notice.

DHRM denied UPEA’s suggestion to allow employees the opportunity to request a formal classification review to determine if they are classified appropriately. DHRM noted it is in every agency’s best interest to classify employees to the correct position; yet changing the rule in this way could have a budgetary impact, especially if employees frequently made the request. UPEA also requested DHRM define “administratively acceptable evidence” (R477-7-4(7) when employees are required to prove their sick leave use. DHRM noted some agencies are more rigid than others and adding a definition could undermine an agency’s discretion.

In addition, UPEA disagreed with four of DHRM’s draft rule modifications. They are:

  1. PEHP currently does not allow a surviving spouse to purchase dental insurance using a spouse’s pre-2006 or pre-2014 sick leave benefits, as per Utah State Statute 67-19-14.3. To be consistent with statute, DHRM Rule R477-7-6(5)(vii) will now read, “In the event an employee is killed in the line of duty, the employee’s spouse shall be eligible to use the employee’s available sick leave hours for the purchase of additional medical coverage.”
  2. Similarly, DHRM believes the language should be removed from R477-6-6(10)(a) that specifies that employees who accept career mobility assignments can receive a temporary pay increase or decrease while completing the different job duties. UPEA believes the language in subsection (a) should be kept, as it doesn’t make sense to keep subsection (b), articulating the employee’s salary could be reduced when they are no longer in a career mobility position, if the rules don’t identify that his/her salary could decrease or increase when accepting a career mobility assignment. During the rules hearing, DHRM noted that in its internal electronic system it codes career mobility assignments as promotions or reassignments, which is why DHRM wants to remove the language. Regardless of how career mobility assignments are coded electronically, they are not inherently permanent promotions or reassignments. DHRM seemed to agree that removing the language in subsection (a) could cause confusion and is considering keeping the original language.
  3. As a result of a recent Utah Court of Appeals Case Stephen Burgess v. Dept. of Corrections, which overturned the termination of a Department of Corrections employee, DHRM added 13 defined “discretionary factors” to R477-DHRM Rule R477-11-3. The language describing these new factors was  taken verbatim from Judge Michele Christiansen’s opinion, which also refers to another case, Daniel Harmon v. Ogden City Civil Service Commission and Ogden City Corp. Ogden City Fire and Ogden City Fire Chief Mike Mathieu. Essentially, DHRM wants to ensure agencies thoroughly evaluate all these discretionary factors before deciding to give employees written warnings or placing them on a performance improvement plan, and before formally disciplining them with a written reprimand, suspension, demotion, or termination. This is great news for employees; however, one of the discretionary factors allows agencies to evaluate the “likelihood of recurrence.” Because neither an agency nor DHRM can predict an employee’s future behavior, UPEA believes this specific discretionary factor should be removed from the rules. Trying to predict the “likelihood of recurrence” disregards giving employees an opportunity to remediate their behavior by giving authority to the agency/DHRM to argue something could happen in the future. DHRM declined to remove the new language because the relevant case law already includes the same language.
  4. UPEA ensures that the processes for conducting a layoff are equitable. Currently, DHRM Rule R477-12-3(5) requires that agencies give employees 20 working days’ notice when their position is being eliminated. Nonetheless, this year DHRM is removing that language so the rules are more consistent with Utah State Statute 67-19-18(6)(d), which only requires that employees be granted notice of their appeal rights within 20 working days of being laid off.

UPEA members can join the Human Resources Policy and Rules Committee or offer suggestions on human resource rules by contacting their UPEA staff representative. If you would like to attend the next committee meeting, it will be on Sept. 27 at 6 p.m. at the UPEA office.

 

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