1601 A2 Classified Employee Disciplinary and Dismissal Actions

The Rules of the State Personnel Board outline specific procedural requirements for Adverse Actions.

Except in cases that warrant immediate dismissal, the supervisor should review the circumstances of the incident or offense, history of corrective measures and/or disciplinary actions previously taken against the employee prior to proposing an Adverse Action.

OHR MUST be consulted in advance to discuss and determine the appropriate Adverse Action.

In accordance with the Rules of the State Personnel Board, an Adverse Action may be taken against an employee for the following reasons:

Employees may be suspended without pay for disciplinary purposes. The timeframes for a Suspension Without Pay for disciplinary purposes should be appropriate for the offense and should not exceed thirty (30) calendar days.

Employees may be suspended without pay for up to thirty (30) calendar days for failure to secure or maintain a license or certification required by law, regulatory authority, or DHS.

Employees may be suspended without pay pending criminal court action until the disposition of the action.

For Fair Labor Standards Act (FLSA) exempt employees, Suspensions Without Pay must be administered in full FLSA work periods and cannot cover parts of two (2) FLSA work periods.

Salaries of FLSA non-exempt employees may be reduced for disciplinary purposes.

Employees' salaries that are reduced because of a Disciplinary Salary Reduction should be reduced by an amount equal to at least five percent (5%) and should normally be reduced by an amount equal to increments of 5% (e.g., 5%, 10%, etc.).

A Disciplinary Salary Reduction may be permanent, indefinite, or for a specified period conditional upon the employee’s achievement of fully satisfactory performance and appropriate conduct.

Employees that retain eligibility for the salary received prior to the Disciplinary Salary Reduction may be restored on the first day of any pay period following the Disciplinary Salary Reduction provided:

Employees may be involuntarily demoted to a lower job for disciplinary reasons.

The salary of a classified employee who is involuntarily demoted is to be reduced by an amount equal to at least five percent (5%). The salary pay grade cannot be less than the minimum salary or exceed the maximum salary for the job to which the employee is demoted.

Employees may be dismissed when all other courses of action have been unsuccessful or when the situation is so serious that termination is necessary.

Dismissal is required in certain situations, including but not limited to drug or alcohol testing violations, criminal history records, criminal drug offenses, etc.

negligence or inefficiency in performing assigned duties;

inability or unfitness to perform assigned duties;

insubordination;

misconduct;

conduct reflecting discredit on the department;

commission of a felony or other crime involving moral turpitude;

chronic tardiness or absenteeism; or,

failure to report for or remain at work without justifiable cause.

The effective date of the Adverse Action which must be at least fifteen (15) calendar days after the date notice of the proposed action is presented to or received by the employee, or properly delivered to the employee’s last known address via regular mail, certified mail, and personal email (if known);

The specific charges or reasons for the Adverse Action;

A statement advising that the employee has a right to respond to the charges or reasons in writing, or appear before the DHS Reviewing Official at an agreed time during regular business hours within the ten (10) calendar days response period;

A statement advising the employee that a failure to respond to the charges during the response period will result in the action being effective on the date specified without further notice; and

A warning that failure to respond by the date set forth in the notice will result in a waiver of all further appeal rights, including any appeal to the State Personnel Board under Rule 478-1-.27, of an Adverse Action.

The employee response procedure is created to protect the employee from erroneous or arbitrary Adverse Action. It is also created to afford DHS an opportunity to re-evaluate its position on proposed Adverse Actions and to affirm or correct, if necessary.

The employee must respond within ten (10) calendar days from the date the notice of proposed action is received. If the employee does not respond by the date required in the notice of proposed Adverse Action, the employee waives all further appeal rights.

The employee response may be made in writing or in person, or both. The employee may submit affidavits or other documents to support the response.

The Reviewing Official must issue a decision concerning the proposed Adverse Action no later than three (3) calendar days after the date of the employee’s response.

The last action may be different from, but not more severe than, the proposed action.

The notice of the final Adverse Action must include:

The Reviewing Official may conduct further investigation as to the charges prior to issuing a decision.

If the Reviewing Official determines that more than three (3) calendar days are needed to consider the employee’s response to the proposed adverse action; the Reviewing Official may extend the period of consideration for up to seven (7) calendar days by notifying the employee of the length of the extension. The extension notice shall also state that the effective date of the proposed action shall be delayed by the same number of days as the length of the period needed for consideration.

If the Reviewing Official determines that charges in addition to, are substantially different from those enumerated in the notice of proposed Adverse Action, the Reviewing Official must revoke the notice by written notification to the employee. A new action, or other appropriate action, may then be initiated against the employee.

The Appointing Authority may take immediate adverse action against any employee in any of the following circumstances if:

The notice of Adverse Action based on an emergency is the final determination and must include the same items required in the Procedures, as referenced in Paragraph E above.

The person to whom the response is to be made must be someone who has authority to countermand or delay the proposed action.

The employee must respond within ten (10) calendar days from the date the notice of proposed action is received. If there is no response by the employee by the date required in the notice of proposed action, the employee waives all further appeal rights. There can be no further appeal, including any appeal to the State Personnel Board.

The response may be made in writing, or in person, or both.

The employee may submit affidavits to support the response; and,

The official who reviews the response may conduct further investigation as to the charges.

The role of the official who reviews the response is to determine whether the facts support the charge and whether the level of adverse action is appropriate based on a review of adverse actions imposed against employees in the past under similar circumstances.

A statement upholding the proposed action, reducing the proposed action, or rescinding the proposed action.

The specific charges for which the final action is taken.

The effective date of the final action, which may not be any earlier than the effective date in the notice of proposed action.

A statement advising that the employee may appeal this determination to the state personnel board pursuant to rule 478-1-.27 (appeals and hearings for classified employees) by filing an appeal in writing with the Office of State Administrative Hearings within ten (10) calendar days from the date the employee receives written notice of the final action or decision, or the effective date of the action or decision, whichever is later; and,

A statement reminding the employee that the ten (10) calendar days appeal period includes Saturdays, Sundays, and holidays.

It is likely that the employee has committed a felony or other crime involving moral turpitude.

The retention of the employee in active-duty status may result in damage to property or may be disruptive, detrimental, or injurious to the employee, fellow workers, persons under the employee’s charge or the general public; or,

Immediate dismissal is required by law.

In some circumstances, employees who are dismissed from employment may be ineligible for rehire by the Department.

Each circumstance, other than those requiring mandatory disqualification from rehire, is to be reviewed on a case-by-case basis.

If it is determined appropriate to enter a recommendation that an employee is ineligible for rehire, “No Rehire” is to be selected on the Electronic Personnel Action Request Form (ePAR).

Documentation of the reason(s) supporting the request for “No Rehire” must be available upon request. Questions regarding the reasons for entering a “No Rehire” code should be discussed with OHR.

The appropriate Human Resources Representative assigned to the Operations, Benefits, and Data Analysis team shall ensure that the specified document(s) are stapled together with the completed Purged Record Notification form as the cover sheet. This will indicate to anyone reviewing the personnel file that these records are no longer applicable to the employee’s work history, per the settlement agreement. Please see DHS Policy #603: Official Personnel Files Attachment #3 to access the form.

Such notation shall be disclosed to any subsequent governmental entity seeking information on the former employee’s work history for the sole purpose of making a hiring decision.