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STATE OF LOUISIANA

DEPARTMENT OF STATE CIVIL SERVICE

BATON ROUGE, LOUISIANA

 

Text Box: This public document was published at a total cost of $10.57. 33 copies of this public document were published in this 1st printing at a cost of $.32. The total cost of all printings of this document including reprints is $10.57. This document was published by the Department of State Civil Service to keep agencies, employees, and other persons informed about the personnel program under authority of Article X of the Louisiana Constitution. This material was printed in accordance with standards for printing by State Agencies pursuant to R.S. 43:31.

November 5, 2007

 

General Circular No. 001717

 

To:                   Heads of State Agencies and Human Resource Directors

 

Subject:            Proposed Amendment to Rule 12.6 Non-Disciplinary Removals

 

Issue Date:       November 5, 2007

  

The State Civil Service Commission will hold a public hearing on Wednesday, December 12, 2007, to consider a proposed amendment to Rule 12.6. The hearing will begin at 9:00 a.m. and will be held in the Louisiana Purchase Room (Room 1-100) of the Claiborne Building, 1201 North Third Street, Baton Rouge, Louisiana. 

 

Consideration will be given to the following:

 

 To amend and reenact Civil Service Rule 12.6 to read as follows:

12.6 Non-disciplinary Removals.

 (a) An employee may be non-disciplinarily removed under the following circumstances:

1. When, on the date the notice required by Rule 12.7 is mailed, hand delivered, or orally given, the employee is unable to perform the essential functions of his job due to illness or medical disability and has fewer than eight hours of sick leave. An employee removed under this provision shall be paid for all remaining sick leave.

2. When, after the employee has been given written notice that his attendance requires improvement and a copy of this rule, an employee has seven or more unscheduled absences during any consecutive twenty-six week period. The employee shall also be given written notice each time he incurs a sixth unscheduled absence during a consecutive twenty-six week period. An unscheduled absence occurs when an employee is absent from work without having obtained approved leave prior to the absence. Approval of leave, after the fact, to cover an unscheduled absence shall not prevent the absence from being considered unscheduled. A continuous absence for the same reason is one unscheduled absence, regardless of its duration.

3. When, as a result of conduct that was not work related, the employee fails to obtain or loses a license, commission, certificate or other accreditation that is legally required for the job.

4. When the employee holds more than one position in the state service and the multiple employment causes an employing agency to be liable for overtime payments under the Fair Labor Standards Act and, after having been provided an opportunity to do so, the employee has refused to resign from one of the positions.

5. When there is cause for dismissal, but the cause is not the employee's fault.

(b) When an employee is removed under this Rule, the adverse consequences of Rules 6.5(c); 7.5(a)7; 8.9(d); 8.13(a)7; 8.15(d); 8.18(d) and (e); 11.18(b) and 17.25(e)4 shall not apply.

Explanation

1.      Current Rule 12.6 states that section (a) is subject to the provisions of the ADA and FMLA. In several appeals, employees have argued that inclusion of this language in the rule gives them the right to litigate their ADA and FMLA claims before the Commission as a defense to the removal action. The intent of the language was to inform agencies that their ability to use Rule 12.6 might be impacted by certain federal laws, not to imply that the Commission had jurisdiction over those laws. Therefore, the proposal removes the ADA/FMLA language from the rule. (It will be included in the HR Handbook for guidance.)

 

2.      Current Rule 12.6(a)1 allows an agency to remove an employee who is unable to perform the essential functions of the job and has fewer than eight hours of sick leave as of the effective date of removal. The proposal changes this to the date that the pre-removal notice is mailed, or hand-delivered, or orally given to the employee. Over the years agencies have complained that as soon as the employee receives notice that removal has been proposed, the employee returns to work, works a short period of time, earns more sick leave, runs out of sick leave, and the cycle begins again. The change would stop the “revolving door” problem.

 

3.      Under current Rule 12.6(a)1, an agency must prove that the “job must be performed without further interruption.” This language is unnecessary and furthers the myth that state employees have duties that could go unperformed. As the Louisiana Supreme Court observed:

[The appellant] contends, and the Court of Appeal held, that Rule 12.10 [current Rule 12.6(a)1] is deficient because it does not include the specification that the absence of the terminated employee adversely affects or is detrimental to the operation of the department for which the employee worked. We do not agree that the rule must include this specification, for unless the contrary is established, we feel required to assume that every employee is necessary to the operation of the State's business. Bradford v. Department of Hospitals,, 255 La. 888, 233 So.2d 553 (1970)

This change places the burden on the employee to show that he was unnecessary to the operation of the State’s business.

4.      Current Rule 12.6(a)2 requires an agency to have a Commission-approved policy before it can non-disciplinarily remove an employee for excessive unscheduled absences. The proposal eliminates the need for an approved policy. Several appeals have revealed the impracticability of this approach: agencies counting continuous absences in different ways; agencies amending policies without Commission approval; agencies interpreting their policies differently from the rule’s intent. The proposal recognizes that agencies cannot perform any public service unless employees come to work and, at some point, unscheduled absenteeism is, in itself, conduct that impairs the efficiency of public service and constitutes cause. The proposal defines that point (seven or more in a twenty-six week period after written notice that attendance needs improvement has been provided), defines “unscheduled” and clarifies the status of a continuous absence, allowing uniform statewide application. The proposal requires written notice to the employee when he has incurred a sixth unscheduled absence. This is to insure that the employee is not caught by surprise and allows the agency to correct any miscalculations.

 

5.      The proposal continues to recognize that the reason for the unscheduled absences may not be the employee’s fault, and therefore non-disciplinary removal may be more appropriate than disciplinary dismissal (which has additional adverse consequences).

 

Persons interested in making comments relative to these proposals may do so at the public hearing or by writing to the Director of the Department of State Civil Service at Post Office Box 94111, Baton Rouge, Louisiana, 70804-9111.

 

If any accommodations are needed, please notify the Department of State Civil Service at (225) 342-8272 prior to the meeting.

  

Sincerely,

 

 

s/Anne Smith Soileau

Director