DEPARTMENT OF STATE
Merit Employee Relations Board
Statutory Authority: 29 Delaware CodeSection 5914 (29 Del.C. §5914)
Merit Employee Relations Board, Merit Rules of the State of Delaware
IN THE MATTER OF THE |
PROPOSED MODIFICATION | ORDER
OF EXISTING MERIT RULES |
BEFORE Brenda Phillips, Chairperson; Dallas Green, John W. Pitts, John F. Schmutz, and Paul R. Houck, Members, constituting a quorum of the Merit Employee Relations Board pursuant to 29 Del.C. '5908(a).1
On April 21, 2003, pursuant to 29 Del.C. '5914 and 29 Del.C. ch 101, extensive proposed changes to the Merit Rules of the State of Delaware were transmitted to the Merit Employee Relations Board (AMERB@) by the Director of the Office of State Personnel (ADirector@). The proposed changes as approved by both the Director and by the Statewide Labor-Management Committee, repealed many existing Merit Rules and substituted in their place new and revised Merit Rules. MERB gave notice that it would consider the proposed changes in the Delaware Register of Regulations, (Volume 7, Issue No. 1, Tuesday July 1, 2002 and Volume 7, Issue No. 4, Wednesday, October 1, 2003) and other publication in accordance with the Administrative Procedures Act, (Board Exhibit No. 1). On October 22, 2003 the MERB held a Public Hearing concerning the proposed Merit Rule changes (both the proposed repeal and the proposed revised Rules) as submitted by the Director. Additionally, MERB also considered timely filed written submissions from interested individuals and groups concerning the proposed Merit Rule changes, and the Board kept the hearing open until October 31, 2003 to consider any written comments which had not arrived by the October 22, 2003 hearing. No such additional comments were received and the Board conducted it=s deliberations concerning the proposed Rules on November 6, 2003.
Pursuant to 24 Del.C. '5914, changes to the Merit Rules proposed by the Director are to become final after the completion of the public hearing, unless rejected by a majority of the members appointed to the Board. A portion of the changes proposed by the Director included a number of deletions of existing Merit Rules, some of which involved procedural rules for the conduct of hearings before MERB. The Director did not propose any replacement procedural rules and on September 18, 2003 the MERB determined to consider adoption of Rules of Practice and Procedure which, pursuant to 29 Del.C. '10113 may be informally adopted. These procedural Rules were proposed by the MERB so that there would be hearing procedures available contemporaneously with the proposed repeal of certain sections of the Merit Rules as proposed by the Director which had contained similar procedural rules.
SUMMARY OF COMMENTS PRESENTED AT THE PUBLIC HEARING ON OCTOBER 22, 2003
Lisa Blunt-Bradley, the Director of the Office of State Personnel, together with Dr. Dana Jefferson provided a presentation to the Board on behalf of the Statewide Labor-Management Committee. As a part of her presentation Director Bradley presented written material (Board Exhibit No. 9) which provided background on the process leading to the proposal of the revised Merit Rules and their submission to and approval by the Labor-Management Committee as contemplated by 29 Del.C. '5907(3). Director Bradley observed that the background for the revision project began in the mid 1990's and continued into 2003 with the reconstituted Labor-Management Committee. She noted that there were numerous work sessions over the course of many months culminating in the final product which was approved by the full Labor-Management Committee.
Director Bradley described what she viewed as major changes and emphasized that the proposed changes to the Merit Rules were designed using gender neutral language and sought to include existing legal and policy interpretations and budget epilogue language. Additionally, the proposed Rules involved numbering changes and consolidation to make information easier to find including moving the definitions to the end of the document and updating terms (such as AMERB@ rather than the former State Personnel Commission).
Director Bradley also alluded to the ongoing project of designing a Manual which would contain various interpretations and policies developed by the State Personnel Office concerning the Merit Rules for classified service. Dr. Jefferson explained that the Manual is still a work-in-progress.
Michael Begatto, former president of the American Federation of State County and Municipal Employees, and Vice-Chair of the Labor-Management Committee observed that the Committee wanted to make the Merit Rules easier to understand.
Roy S. Shiels, Esquire, opined to the Board that any Procedural Manual developed by the Office of State Personnel should be kept together with the Merit Rules in one book and should be truly available to state employees. Mr. Shiels observed that in some areas such as employee evaluations he perceived potential inconsistencies with other portions of the proposed rules such as those dealing with employee grievances. Mr. Shiels also suggested that further consideration be given to the circumstance of an employee who became ill through no fault of their own. He suggested such individuals be considered for layoff rather that termination of employment. Mr. Shiels indicated that he did not intend to go point by point through the concerns he had expressed in his various written comments to the Board concerning the Merit Rules, (Board Exhibit Nos. 4, 5 and 6) but he was concerned that there was not sufficient employee input into the rule development process. Mr. Shiels suggested the Board consider another hearing at which additional matters could be considered.
Janet A. Wright, Esquire, the attorney for the Delaware State Public Integrity Commission, noted an overlap exists in the rules for Classified State Service and certain of the provisions of the State Code of Conduct. Ms. Wright suggested that references to the State Code of Conduct be included in appropriate areas such as proposed Merit Rule 5.04 and 5.05 dealing with dual employment and in proposed Chapter 15 dealing with outside employment. Ms. Wright suggested that reference should be made to 29 Del.C. '5824 regarding dual compensation and to 29 Del.C. '5806(b) concerning outside employment and the filing of required disclosures.
Thomas LoFaro, Deputy Director of Employee Relations with the Office of State Personnel, described himself as a long time participant in the process of developing Merit Rules. Mr. LoFaro opined that the process used in the development of the revised Merit Rules as proposed by the Director followed the process contemplated by the General Assembly which he described as representative democracy in action. Mr. LoFaro also testified that statutory changes were reflected in the proposed changes to the relevant Merit Rules and that the proposed changes had been presented to the Labor-Management Committee for review and comment prior to submission to the Board as required by 29 Del.C. '5907(3).
Deputy Attorney General Ilona Kirshon, representing the Office of State Personnel, observed that MERB followed the statutory procedures for publishing notice of the consideration of the proposed rule revisions. Also Ms. Kirshon noted the availability of Family Medical Leave Act for employees as reflected in proposed Merit Rule 5.7 and leave without pay in proposed Rule 5.6.
WRITTEN COMMENTS RECEIVED
Roy S. Shiels, Esquire, a Dover attorney with a long history of representing Merit System employees before the Merit Employee Relations Board, and previously before the State Personnel Commission, submitted written comments on the proposed revisions to the Director of the State Personnel Office with copies to the MERB and others. Mr. Shiels= comments, although approximately 10 in number, deal with several subparts for various rules. The Director of State Personnel responded directly to Mr. Shiels on August 6, 2003 (Board Exhibit No.7) noting that she wished to move forward with the proposed revisions as written. The Director indicated in her response to Mr. Shiels that she would discuss his concerns with the chapters involving recruitment and application policies with the Labor-Management Committee for future Merit Rules revisions. The Director disagreed with any proposal to place reinstatement rights in proposed Chapter 11 and noted that budgetary limitations would restrict the suggested changes regarding leveling up of salaries and the use of compensatory and leave time. The Director also noted in her response to Mr. Shiels that her office was working on a Return-to-Work program that would provide injured employees an opportunity to more quickly return to work while ensuring that those employees do not aggravate their injuries. The Director agreed with Mr. Shiels= observations about the inappropriateness of retaliation or harassment of employees and noted that such behavior might be the subject of a grievance under proposed Merit Rule 2.1 which prohibits discrimination in any human resource action based upon, among other things, non-merit factors.
Rule 11 - Layoff Procedures. Mr. Shiels suggests that Rule 11.1 should include bona fide illness and notes that presently employees with illnesses (which prevent them from working) are simply terminated from employment.
DISCUSSION: The Merit Rules in Chapter 11 deal with the termination of employment for reasons unrelated to conduct or performance. The inability of an employee to perform the requirements of their position by virtue of illness, while a situation possibly without fault on the part of the employee is also a performance issue. It is not a situation where, for some reason, the work has become unavailable necessitating a layoff, but is rather a performance issue and a matter which the Director has indicated is to be addressed in a return-to-work program in development. Additionally, as noted by Ms. Kirshon during the hearing, there are provisions in the proposed Rules for a leave-without-pay status and for the availability of federally mandated leave under the FMLA.
Mr. Shiels suggests that proposed Rule 11.5 require reinstatement at the highest level available of the 3 levels permitted.
DISCUSSION: Merit Rule 11.5 addresses the situation where employees who have been laid off and cannot be placed by way of a hiring preference may be placed in any vacancy for which they qualify in their class or occupational series, which is equal to or no more than 3 pay grades lower than their current paygrade within the layoff field. Requiring placement in the highest paygrade of the 3 available grades would not afford an appropriate level of flexibility. It is to be expected, however, that in most instances where there is a choice available, the position carrying the higher paygrade would normally be offered.
Mr. Shiels suggested that Rule 11.3 should clearly advise laid off employees of rights to reinstatement outside of their counties of employment.
DISCUSSION: The proposed Rule 11.3 provides for 30 days notice to the employees unless an emergency condition exists. Mr. Shiels= suggestion is one which need not be included in the Merit Rule to be effectuated.
Mr. Shiels opined that Rule 11.7 should permit bumping by those laid off of any persons in their class having less seniority. He observed that requiring the most senior to bump the least senior may require the most senior to take a less desirable position than other laid off employees with less seniority.
DISCUSSION: The present Merit Rules also provide for the most senior employee bumping the least senior employee in their present class and then in each succeeding lower class. There is no material change in the existing approach.
Regarding Merit Rule No. 6 - Recruitment and Application policies, Mr. Shiels suggested that Rule 6.1A should include hiring as well as recruiting and advertising. He also suggested that either additional language or other rules be added to provide that if the most qualified applicant is not selected, that a reason for the non-selection be given and an appeal mechanism provided for unsupported reasons.
DISCUSSION: While there is considerable discretion afforded to those with hiring responsibilities, the Merit Rules and the directives promulgated by the State Personnel Office do govern hiring of Merit System employees. The determination of who is the Abest qualified@ applicant is quite often an area where reasonable people may disagree. It remains the stated policy of the State to search widely and vigorously for the most qualified persons to fill positions in the classified service.
Mr. Shiels raised the policy issue of Aleveling up@. He asserts that when superior qualifications or recruiting needs are claimed as a basis for increased pay by an agency, then existing employees should have the right to receive equal pay if they are in the same or an equivalent position. He also suggests that where recruiting needs of the agency are the basis claimed for establishing a higher salary for an employee, then any other employee in the same or equivalent positions should have a right to process a claim for equal pay and receive a decision with reasons stated and supported if such claims are denied.
DISCUSSION: The fundamental principle remains that uniformity in pay should prevail among similarly situated positions. However, this cannot be an absolute for a number of reasons including variations in the job market, and in the abilities of employees. This may be an area which the Director may wish to have further discussion during the second step of the Merit Rule revision process which she discussed with the Board during her presentation on October 22, 2003.
Concerning Employee Performance Review Appeals, Mr. Shiels suggests proposed Merit Rule 13.4 may be inconsistent with 29 Del.C. '5931 because it fails to provide, at a minimum, a two tiered system for resolving employee grievances. He suggests development of a procedure for the resolution of a dispute concerning an unsatisfactory evaluation which has an adverse impact on employee rights and benefits.
DISCUSSION: It should be noted that 29 Del.C. '5931 expressly provides an exception for grievances which are excluded or limited by the Merit Rules. The proposed Rule 13.4 AReview Appeal@ provides that the employee shall have the right to discuss any performance review or documentation with the next level of authority and may submit written comments. This limitation would therefore not necessarily be inconsistent with 29 Del.C. '5931.
Mr. Shiels also suggested an additional rule in proposed Chapter 15 to prohibit harassment of employees by managers or by other employees. He suggested that those who are harassed or whose work is interfered with, should have an effective remedy through a grievance or otherwise. He specifically suggested a new Rule 15.1B stating that each employee has a responsibility not to harass or interfere with the work performance of others.
DISCUSSION: An individual whose work is being interfered with by another person has a duty to report the situation to his or her immediate supervisor, or to a higher level supervisor if the harassment is coming from the immediate supervisor. Such behavior by a fellow employee or by a supervisor, if determined to be improper harassment, could amount to misconduct for which disciplinary sanctions could be imposed if appropriate.
Regarding Rule No. 16 - Human Resource Records, Mr. Shiels suggests that master personnel records should be the only HR records kept by agencies and supervisors. He also suggests that Rule 16.2 be clarified to state that employees have a right to access their own records.
DISCUSSION: The suggestion is not necessary for inclusion in the Merit Rules. There is a right to access for the employee to his or her personnel records under subchapter IV of Title 19.
Concerning the Grievance Procedure Merit Rule 18, Mr. Shiels suggested that Merit Rule 18.4 should probably reference Rule 18.7 rather than 18.6 in referring to Step 2. Also, it appears inconsistent with the proposed 12.9 which appears to allow for alternative direct appeal to both the State Personnel Office and MERB. Mr. Shiels suggests the deletion of proposed Merit Rule 12.9, and also suggests a discovery process with sanctions such as an adverse inference should be available unless the choice of using the Step process remains with the employee for grievance appeal.
DISCUSSION: As noted by the Director=s written response, Mr. Shiels is correct in his observation that the reference to 18.7 is the incorrect reference. As to the choice of an appeal forum, it is reasonable that the choice should remain with the employee; however, proposed Merit Rule 12.9 is not at all inconsistent with such a choice.
Mr. Shiels also questioned whether Rule 18.0120 which is proposed for deletion (Absences without authorized leave or tardiness may, at the discretion of the appointing authority, subject the employee to disciplinary action) was covered by Rule 15 as indicated in the proposed rules. He suggested that language be added to Rule 15 to require that, in the absence of a bona fide personnel reason, all employees be treated alike when it comes to sanctions for absence or tardiness so that agency attitudes on this issue are not dictated by the identity of the employee in a specific instance.
DISCUSSION: In fairness to all employees as well at to management, there should be considerable discretion in the manner in which absences and tardiness are addressed. Nevertheless, to the extent that a discipline imposed is out of proportion to that imposed on other employees for similar misconduct, it creates an appearance of arbitrary and capricious behavior which can be the subject of a grievance particularly where the recipient of the excessive punishment has reason to believe that he or she is being singled out for harsher punishment for non-merit factors or other improper discriminatory reasons.
Mr. Shiels also suggested that leave and compensatory time should not be forfeited, but should be carried over in situations where the employee has sought to use the compensatory time, or to take vacation during the year and the request has been denied by the agency. He suggests that Rule 4 and Rule 5 be modified to so provide.
DISCUSSION: The proposed Rules reasonably provide for exceptions to the carryover limitations in the discretion of the Director at the request of the agency.
Mr. Shiels commented that the promotion of less qualified persons needs to be addressed in proposed Rule 10. This tracks his prior comment regarding the hiring of the Amost@ qualified individual rather than Aany@ qualified individual.
DISCUSSION: This suggestion, as with Mr. Shiels= prior observation about hiring the Amost@ qualified individual, raises issues which he has raised for clients in prior grievances. Is someone who scores higher on a test or a series of tests, or some other ranking, necessarily the Amost@ qualified to fill a position? Stated differently, at what point, if any, do considerations of personality and the ability to work effectively with others come into play in making hiring or promotion decisions. Can there be situations where the highest ranking person is not necessarily the Abest@ person for the job? Where the Board has faced these question in the past it has determined that the most qualified person for any particular position is not exclusively the one which is ranked highest on the ACert@ list. The potential for a problem develops when management is unable to effectively articulate the business reasons for the selection of an individual who is not the highest in ranking. Obviously the hiring selection needs to be based on merit factors and management should be able to explain what factors were considered and what formed the basis for the hiring decision. If management is not able to do so with clarity it runs the risk that its proffered reasons will be viewed as a sham and an excuse for the application of improper non-merit factors.
Finally, Mr. Shiels suggested that Rule 10.7B should include language requiring that underfilling of positions consider the ranking and seniority of those eligible to underfill and should have time limitations assigned when the underfilling begins. He opined that underfilling is frequently a prelude to filling a position internally, giving experience credit for the time spent in the underfilled position.
DISCUSSION: Underfilling under Rule 10.7 requires the approval of the Director. The suggestions made by Mr. Shiels go to the exercise of that discretion and do not need to be expressly addressed in the Merit Rules. The Director should insure and document that underfilling is indeed necessary and that it is not being improperly used to pre-select an individual for the position.
On September 30, 2003, Mr. Shiels also filed written comments concerning the Procedural Rules under consideration by the Board. Mr. Shiels supported the adoption of the proposed Procedural Rules and suggested additional consideration be given to a Rule which provided a mechanism for enforcement of Board Orders. Mr. Shiels also suggested that proposed Procedural Rule 4 be modified to indicate that when the Board acts to take jurisdiction of an appeal, that such appeal divests the agency and the office of State personnel from taking any further action without a remand.
The Board declines to make either such changes to the Procedural Rules at this time. The failure of an agency to comply with a Board Order can be the subject of a further grievance and other relief may also be available by appeal to the Superior Court or other state or federal authorities. The ability of the Office of State Personnel or an agency to modify an action previously taken against an employee who has filed an appeal with the Board should be permitted to promote prompt redress of problems.
FINDINGS AND CONCLUSIONS
Pursuant to 29 Del.C. '5914, the Board, has reviewed the proposed changes to the Merit Rules submitted by the Director, and has found no basis for the rejection of any of the proposed changes. However, the Board is cognizant that there are several areas within the Merit Rules which might benefit from further consideration both by the Director and by the Labor-Management Committee. The Board accepts the representations of the Director that additional consideration is to be given to Merit Rule revisions and the Board would expect that the areas raised in the written comments of Mr. Shiels would be among the areas to be visited in what the Director characterized as AStep 2" of the Merit Rule updating process.
Among the areas appropriate for further discussion is proposed Merit Rule 1.5 which will allow the Director to issue interpretations and policies without requiring explicit Board pre-approval (now required by Rule 1.0300). The Board notes that such interpretations and guidelines should not develop into de facto new rules without Board review and approval. However, pursuant to a properly filed grievance, the Board may review an interpretation of the State Personnel Office which is asserted to be inconsistent with the existing Merit Rules. The Director may also wish to pursue with the Attorney General=s office the extent to which the Director=s guidelines and policy determinations may be subject to the public procedures of the Administrative Procedures Act. As Mr. Shiels noted any such interpretative Manual should be available co-extensively with the Merit Rules and, as was discussed with Ms. Wright, could be a source of references to relevant related statues such as those found in Chapter 58 of Title 29 as well as other relevant statutes.
Additionally, the issue of Aleveling up@ of employee pay in certain circumstances is an area where there must be balance between budgetary requirements and the goal of comparable pay rates for comparable positions. Periodically it is appropriate to review the mechanisms for insuring that a proper balance is maintained.
It is also noted that Proposed Merit Rule 5.2H does not expressly provide for retirees to be compensated for unused annual leave, however, there is no express exclusion for such payment although those who resign, die, or are terminated, are expressly include. In a similar omission, appellants in Maintenance Review Appeals before the Board are not expressly included in Rule 5.5B. However, there is no specific exclusion, and attendance before the Board for such proceedings would seem to be generally accepted and appropriate subject to reasonable operational requirements of the Agency.
Revised Rule 10.3 is now AExceptional Appointment@ and appears to recognize the unique nature of such appointments, and contemplates that the discretion involved will not be abused as an avenue to avoid the hiring or promotion requirements of the Merit Rules.
Additionally, the implementation of proposed Merit Rule No. 12.9 will need to be monitored to be certain that there is no confusion with the appeal rights of a person who has been dismissed, demoted or suspended. The suggestions made by Board member Paul Houck at the October hearing concerning improvements to the appeal form should receive favorable consideration by the Director.
While there are areas for additional review and discussion, the MERB concludes that the Director=s proposed revisions to Merit Rules as set forth on the attached Exhibit AA@and the Procedural Rules set forth on attached Exhibit No. B should approved to become effective January 1, 2004 for all matters occurring thereafter.
For the foregoing reasons by the unanimous vote of the undersigned members of the Board, the Merit Rules of the State of Delaware are modified by the deletions and additions proposed by the Director and the revised Rules are set forth on the hereto attached Exhibit A and shall take effect as stated above.
The Rules of Practice and Procedure set forth on the hereto attached Exhibit B are adopted informally by the Board pursuant to 29 Del.C. '10113 and may be similarly modified as, and if deemed necessary or appropriate. The effective date of the procedural rules shall be January 1, 2004, the same as set forth above for the Merit Rule revisions.
BY ORDER OF THE BOARD:
Brenda Phillips, Chairperson
Dallas Green, Member John F. Schmutz, Member
John W. Pitts, Member Paul Houck, Member
* Please Note: The following regulation does not conform to the style as prescribed by the Registrar. For information concerning any changes in the regulation subsequent to being proposed please contact the Merit Employees Relation Board.
STATE OF DELAWARE MERIT RULES
Adopted by the Merit Employee Relations Board
Effective JANUARY 1, 2004
3. Classification of Positions
4. Pay Plan
5. Employee Benefits
6. Recruitment and Application Policies
7. Examinations and Registers
10. Other Appointments
11. Layoff Procedures
12. Employee Accountability
13. Performance Review
14. Employee Development and Communications
15. Employee Responsibilities
16. Human Resource Records
18. The Grievance Procedure
Chapter 1: INTRODUCTION
1.1 Pursuant to 29 Del C. Chapter 59, these rules apply to initial probationary, Merit and limited term employees, except as otherwise specified, and shall continue in effect until such time as they are amended or modified by the Merit Employee Relations Board ("Board;) or are amended, modified or superseded by amendment to 29 Del. C. Chapter 59.
1.2 In the event of conflict with the Delaware Code, the Code governs. In the event of conflict with individual agency regulations, these rules take precedence. In the event of conflict with Intergovernmental Merit system Standards, the Standards govern federally funded positions subject to the provisions of the Intergovernmental Personnel Act. Federal laws supersede any conflicting state laws.
1.3 If a subject is covered in whole or in part by a collective bargaining agreement, 29 Del.C. Section 5938(d) provides that the Merit Rules shall not apply to such subject matters. These Rules govern in matters of: classification, uniform pay and benefits, examination, rejection of candidates, appointment, paid leave, promotional requirements and standards, and veteran's or resident's preference. Collective bargaining agreements may govern matters of bargaining unit-specific pay and benefits, probation, emergency employment, transfer and promotional selection processes, reinstatement, performance records, layoff, fines, discipline up to and including dismissal, grievances, work schedules and working conditions.
1.4 The State has the exclusive right to manage its operations and direct employees except as specifically modified by these Rules.
1.5 The Director of State Personnel ("Director") may issue Rule interpretation and application guidelines consistent with these Rules. The Director is authorized to establish committees to make recommendations about Human Resources issues.
CHAPTER 2: NON-DISCRIMINATION
2.1 Discrimination in any human resource action covered by these rules or Merit system law because of race, color, national origin, sex, religion, age, disability, sexual orientation, or other non-merit factors is prohibited.
CHAPTER 3: CLASSIFICATION OF POSITIONS
3.1 The Director shall establish and maintain a method of classifying and reviewing all positions. Positions substantially alike in duties and responsibilities and requiring essentially the same knowledge skills and abilities shall be grouped into the same class and pay grade.
3.1A Class specifications shall contain the title and code identifying the class, give examples of the characteristics and indicate duties and responsibilities that may be assigned to positions of the class and set forth uniform job related minimum qualifications and the knowledge, skills and abilities required to do the work.
3.1B Class specifications shall be mainly descriptive and not restrictive. References to particular characteristics or examples of duties shall not exclude others of similar kind and quality.
3.2 Employees may be required to perform any of the duties described in the class specification, any other duties of a similar kind and difficulty, and any duties of similar or lower classes. Employees may be required to serve in a higher position; however, if such service continues beyond 30 calendar days, the Rules for promotion or temporary promotion shall apply, and they shall be compensated appropriately from the first day of service in the higher position.
3.3 If a significant change is made in the duties and responsibilities of a position, or if there is an alleged position classification or reclassification error, the position shall be reviewed and be reclassified if justified, in accordance with procedures established by the Director consistent with the Budget Act.
3.3A When positions occupied by a Merit employee are reclassified, employees shall not be required to serve a probationary period if they meet the minimum qualifications for the new class, provided they successfully completed an initial probationary period. No examination shall be required unless that examination is part of the minimum qualifications or is related to employees' physical ability to perform the essential functions of the job.
3.3B Should the incumbent not qualify for the position as reclassified, he/she shall be transferred to a vacant position for which qualified within the classified service. In the event extenuating circumstances exist, the appointing authority may request approval of the Director to retain the incumbent in the position for a reasonable period, in an underfill capacity, pending qualification at the higher level or pending a transfer.
3.3C When a position is reclassified into a Career Ladder, placement of the position incumbent is based on promotional standards approved by the Director. Movement from one level to another within Approved Career Ladders is a promotion, not a reclassification.
CHAPTER 4: PAY PLAN
4.1 Uniform pay schedules based on current legislation will be issued by the Director. Each position classification shall have assigned to it a paygrade for pay purposes. The pay of employees occupying positions in the Classified Service shall follow the published rates set for the assigned paygrades.
4.2 Standard Work Week
The standard work week for full-time employees shall be 37.5 hours or 40 hours as provided in the Budget Act. Employees shall be paid on the appropriate legislated pay scale. Any future changes with Fair Labor Standards Act (FSLA) implications shall be approved by the Director.
4.3 Dual Employment
Employees covered by FLSA shall be permitted to accept additional employment in another State agency with prior written consent of the affected agencies. Overtime eligibility shall be based on the FLSA.
4.3A Compensation Received From Other Sources.
Employees on approved annual leave may receive additional compensation from another State agency or other employer for work performed during normal duty hours. When not on such leave, any additional compensation shall be deducted from employees’ normal compensation.
4.4 Starting Rate on Initial Appointment
4.4A. Upon initial appointment, employees shall be paid a salary equal to the minimum for their assigned paygrade, except as hereinafter provided.
4.4B Agencies may approve a starting rate up to 85% of midpoint where applicants' qualifications are clearly over and above those required as minimum by the class specification. Upon agency request, the Director may approve a starting rate higher than the 85th percentile if supported by documentation of the applicant's qualifications.
4.4C Upon agency request, the Director may approve a starting rate above the minimum for the paygrade where a critical shortage of applicants exists. The Director, Budget Director and Controller General may provide that all lower paid, equally qualified employees in the same class within the same geographic area receiving a lower rate shall also have their pay rates set as stated above if their performance is satisfactory.
4.5 Employees who transfer or move to another class which is the same paygrade as the former class shall be paid at the same percentage of midpoint, unless their current salary is below the Selective Market Variation (SMV) range or approved alternative pay plan for the class, in which case their salary shall be increased to the minimum of the SMV range.
Upon promotion, employees shall receive either the minimum salary of the higher pay grade or an increase of 5%, whichever is greater. Agencies may grant a greater increase not to exceed the 85th percentile under the criteria in 4.4B. The Director may approve a greater increase that exceeds the 85th percentile under the criteria in 4.4B.
The rate of pay for employees demoted for reasons other than just cause shall be recommended by the agency for the Director's approval. The rate of pay for employees demoted for just cause shall be set by the agency within the pay range of the lower paygrade.
4.8 Starting Rate On Reinstatement
Reinstated employees shall receive the same salary as at the time of separation plus any general salary increases. Any request for a greater salary shall be made pursuant to 4.4.
4.9 After Military Leave
Employees returning from active military duty leave shall receive the rate of pay which they would have otherwise received but for their military duty leave.
4.10 Pay Rate On Return from Exempt Position
Employees who return from leaves of absence in non-classified positions described in 29 Del. C. Section 5903 (4), (5), (6) and (22) shall receive at least the rate of pay which they would have otherwise received but for such leave of absence. If they return via competition to a position in a higher paygrade than the former Merit position, the provisions of 4.6 shall apply based on their former rate of pay.
4.11 Pay Rates After Hiring Preference
Employees placed as a result of hiring preference shall be paid in accordance with 4.4.
4.12 Pay Rates After Reclassification Or Grade Change
4.12.A Any employee movement to a higher paygrade is a promotion. Any employee movement to a class of the same paygrade shall be treated in accordance with 4.5. Employees moving to a lower class and/or pay grade shall retain their former pay as long as they remain in that position.
4.12.B Employees in positions reclassified to a lower class not qualifying for Selective Market Variation (SMV) where their former class qualified for a SMV shall retain, for pay purposes, the SMV pay range assigned annually by the State budget process to the former class as long as they remain in that position and the former class continues to qualify for SMV.
4.12.C Employees whose positions were reclassified to classes in lower paygrades and who retain their former paygrade as provided for in 4.12A and 4.12B shall not retain the paygrade upon voluntary transfer or promotion.
4.12.D Employees shall receive the pay increase provided in the Budget Act, unless their latest Performance Review is unsatisfactory. If the unsatisfactory performance has already resulted in a reduction in paygrade, however, they shall receive the pay increase. Employees who are denied such increase shall become eligible for it when, as evidenced by a Performance Review, their performance is no longer rated as unsatisfactory. Such an increase is not retroactive.
4.13 Pay for Overtime Service
4.13A FLSA-covered employees with a standard work week of 37.5 hours who are authorized to perform overtime service shall be paid at 1.5 times their regular rate for each hour worked after 37.5 hours per week. FLSA-covered employees with a standard work week of 40 hours who are authorized to perform overtime service shall be paid at 1.5 times their regular rate for each hour worked after 40 hours. The form of pay, time off or cash, is at agency discretion and shall be agreed to in advance. Only hours worked over 40 hours per week are covered by the overtime provisions of the FLSA. The regular rate of pay shall include all payments (e.g., shift differential, stand-by duty pay and hazardous duty pay). Agencies may assign reasonable periods of overtime to meet operational needs.
4.13B Any authorized service in excess of the standard work week or work schedule allowed by the FLSA shall be overtime service. Employees working flexible schedules shall be paid for overtime service in accordance with that schedule and not the standard schedule of 37.5 or 40 hours per week.
4.13C A workweek is a period of 168 hours during 7 consecutive 24-hour periods.
4.13D Hours worked includes paid leave plus hours actually worked by the employee.
4.13E Employees in FLSA exempted classes authorized to work beyond the standard work week may be paid with equal time off.
4.13F In unusual circumstances of overtime service by employees normally not eligible for overtime pay in cash, the agency may recommend, for approval by the Director and Budget Director, that such employees be paid at straight time rates.
4.13G Merit compensatory time shall be used within 180 calendar days of accrual or be forfeited. Under extenuating circumstances, the Director may approve exceptions to this rule. FLSA compensatory time may be accrued up to 240 hours of compensatory time-off unless the employee is engaged in work in a public safety activity, an emergency response activity, or a seasonal activity in which case the employee may accrue not more than 480 hours of compensatory time-off. Hours in excess of the 240 hours FLSA maximum shall be paid overtime.
4.13H Agencies may request the Director review the prevailing overtime rates for one or more FLSA exempted classes where external market pressures including excessive turnover rates, recruitment problems and high vacancy rates necessitate that such employees be paid at the rate of 1.5 times the regular rate of pay for any authorized overtime service.
4.14 Compensation for Holidays
4.14.A If the holiday falls on a day employees would not have been scheduled to work, they shall receive equivalent time off on a pro-rated basis.
4.14B Employees eligible for holiday pay and overtime compensation who are authorized to work on a holiday shall be compensated for the hours actually worked on the holiday at 1.5 times and for the holiday on a pro-rata basis. Employees eligible for holiday pay but not normally eligible for overtime compensation required to work on a day observed as a legal holiday shall be credited for the holiday on a pro-rata basis, and may be credited for the hours actually worked on the holiday at straight time, except as otherwise approved by the Director and the Budget Director. Employees' compensation for any additional hours, beyond those for which they are routinely compensated, which have accumulated as a result of working the holiday, may be either in cash or time off or a combination of the two at agency discretion.
4.14C To qualify for pay for a holiday not worked, employees shall be required to be in a paid status, for any portion of the day, on their last scheduled work day prior to the holiday and on their next scheduled work day after the holiday.
4.14D Employees working in 7-day per week functions shall receive holiday pay for hours worked on the actual holiday rather than hours worked on the day observed as the legal holiday.
4.15 Shift Differential Pay
4.15A Shift differential is pay for working inconvenient hours and schedules authorized at the agency's discretion. Shift differential is not authorized for flexible or compressed schedules established at the request of, and for the convenience of, employees even if the requirements of 4.15B are met.
4.15B Employees authorized by agencies to work night shifts which include four or more hours of work between the hours of 6:00 p.m. and 8:00 a.m. the following day shall receive supplemental pay for the entire shift equal to 5% of their paygrade midpoint.
4.15C Agencies may approve employees on a rotating shift schedule to receive shift differential pay during the whole time they are assigned to the rotating shift.
4.15D Shift differential is payable for single shift assignments as well as recurring shift assignments. Employees on fixed night or rotating shifts receive shift differential for all periods of overtime service. For employees not on fixed or rotating shifts, shift differential is payable for entire periods of overtime service once the minimum four hour requirement of 4.16B are met. For purposes of shift differential eligibility, each period of work during employees' regular schedule and each period of overtime service will be considered separately.
4.15E Employees on a fixed night or rotating shift shall continue to receive such adjusted pay while on paid holidays or other authorized leave with pay; provided that the night shift or rotating shift assignment pertains both before and after such leave; and further provided that sick leave of more than five consecutive work days shall terminate the shift differential for the entire period of absence. Agencies may assign employees who are receiving shift differential pay to the day shift for a period of 30 days or less without loss of shift differential.
4.15F An agency may request that the Director review the prevailing shift differential rates for one or more classes where external market pressures including excessive turnover rates, recruitment problems and high vacancy rates necessitate that such employees receive shift differential payments which exceed the amounts provided for in 4.16B.
4.15G Employees authorized and required by agencies to work split shifts shall receive supplemental pay for their entire shift equal to 5% of their paygrade midpoint.
4.16 Call-Back Pay
4.16.A FLSA-covered employees who have left the work site at the end of their scheduled shift and are called back for overtime service shall be paid for such service in accordance with the provisions for overtime pay, provided that minimum total payment is equivalent to four times their regular straight time hourly rate. Employees shall be paid according to this call-back provision or the overtime provision, whichever is greater, not both.
4.16B Social workers providing direct child or adult protective services and the State Emergency Response Team approved by the State Personnel and Budget Directors shall be eligible for call-back pay.
4.17 Stand-by Pay
4.17A FLSA-covered employees assigned to critical public service approved by the Director, and authorized by agencies to be on-call regularly for emergency services for an average of 64 off-duty hours or more per week, shall receive stand-by pay equal to 5% of their paygrade midpoint while so assigned. Such increased pay shall continue during absences only for paid holidays and sick leave of five successive work days or less occurring during the period of assignment. Any call-back work required during on-call periods shall also be compensated in accordance with 4.16.
4.17B Social workers providing direct child or adult protective services and the State Emergency Response Team approved by the State Personnel and Budget Directors shall be eligible for stand-by pay.
4.18 Hazardous Duty Pay
4.18A Determination as to the positions eligible for hazardous duty pay shall be requested by agencies for the Director’s approval. The agency shall notify the Director when a substantive change occurs in the duties or work conditions of any position receiving hazardous duty pay. Compensation shall be set by the State Budget Act.
4.19 Supervisory Pay
Subject to the approval of the Director, the Secretary of the Department of Health & Social Services (DHSS) may grant supplemental pay equal to 5% of the employee's paygrade midpoint to registered nurses employed in DHSS institutions or facilities who are designated as charge nurses or team leaders and are permanently assigned such responsibilities in addition to their regular staff nurse duties. Charge Nurse/Public Health Nurse team leader responsibilities include the daily supervision and coordination of nursing or other patient care activities in a unit, ward, floor, clinic or field setting during a specified shift to ensure quality patient care and continuity of care with other shifts. This supplemental pay is not authorized for employees required to perform charge nurse/team leader functions on a temporary basis consistent with Merit Rule 3.2.
4.20 Computing Overtime Pay
The hourly rate of pay for overtime, holiday and call-back payment purposes includes shift differential, stand-by and hazardous duty pay.
CHAPTER 5: EMPLOYEE BENEFITS
5.1A The following days are legal holidays for employees: New Year's Day; Martin Luther King, Jr. Day; Presidents' Day; Good Friday; Memorial Day; Independence Day; Labor Day: Columbus Day; Veterans' Day; General Election Day; Thanksgiving Day; Day after Thanksgiving; Christmas Day; and Return Day (the second day after the General Election), 3.75 hours for 37.5 hours work week schedule or 4 hours for 40 hour work week schedule for employees who live or work in Sussex County; and any other day or part of proclaimed by the Governor as a holiday.
5.1B When a legal holiday falls on a Saturday, the prior business day shall be the legal holiday. When a legal holiday falls on a Sunday, the next business day shall be the legal holiday. (See 4.13F)
5.2 Annual Leave
5.2A Employees shall accrue annual leave for each month's completed service according to the following schedules:
-less than 10 years
9.5 hours (37.5 hours schedule) 10 hours (40 hour schedule)
-10 to less than 15 years
11.25 hours (37.5 hour schedule) 12 hours (40 hour schedule)
-15 or more years
13.25 hours (37.5 hour schedule) 14 hours (40 hour schedule)
5.2B All leave requests are subject to agency approval, taking into consideration employee requests, operating requirements and seniority, shall be answered as soon as practicable. Leave may not be taken in excess of hours earned. Absences for a fraction of an hour shall be rounded up to .25 hour increments except that within the quarter hour, absences of less than 7 minutes shall be rounded down.
5.2C Accrual continues during absence from work on a legal holiday; on paid leave; on unpaid leave of 30 days or less; and while receiving a salary supplement pursuant to 29 Del. C. 5933 (workers' compensation). Accrual is credited to the employee leave account on the first day of the month following accrual. Accrual shall be on a pro-rata basis.
5.2D Annual leave credit carried into a new calendar year may not exceed 318 hours (37.5 hours schedule) or 336 hours (40 hour schedule). Agencies may request approval from the Director to carry over annual leave in excess of the maximum amount. Upon separation only, employees shall be paid for their accumulated annual leave at their current amount, excluding all supplemental and premium pays.
5.2E Employees covered by practices in effect on or before June 30, 1968, shall continue to earn, accumulate, carry over or be paid at a rate established by those practices, provided they remain in the service of the same employment agency or transfer for reasons beyond their control.
5.2F Employees approved for workers? compensation may request to use accrued annual leave when they are less than fully paid under workers' compensation. Such leave shall be charged as the difference between workers? compensation pay and their regular pay.
5.2G Employees who move from non-classified to classified positions shall be credited with any annual leave for which they were not paid. Employees who move from classified to non-classified positions may transfer accrued annual leave to the extent the receiving agency agrees. Such employees shall be paid by the former agency for any annual leave the receiving agency refuses to accept.
5.2H If an employee resigns or is terminated for any reason including dismissal, or dies with unused annual leave credit, the employee or his/her estate as applicable, shall be paid in cash for any unused annual leave.
5.3 Sick Leave
5.3A Employees shall accrue sick leave for each completed month's service at the following rate: 9.5 hours (37.5 hour schedule) 10 hours (40 hour schedule)
5.3 B Sick leave shall be requested in advance. In instances of unanticipated need to use sick leave, employees must notify their supervisor within the first hour of absence or as soon as practicable or as specified by the agency. Failure to do so or otherwise obtain approval shall result in leave denial. Agencies may require documentation which justifies absences or verifies ability to return to work. Absences for a fraction of an hour shall be rounded up to .25 increments except that within the quarter hour, absences of less than 7 minutes shall be rounded down.
5.3C Accrual continues during absence from work on a legal holiday; on paid leave; on unpaid leave of 30 days or less and while receiving a salary supplement pursuant to 29 Del.C. 5933 (workers' compensation.) Accrual is credited to employee leave accounts on the first day of the month following accrual. Accrual shall be pro-rated.
5.3D Employees shall be paid for accumulated sick leave at their current salary, excluding all supplemental and premium pays, under the following conditions:
- At retirement under the State Pension Law or if laid off without prejudice for lack of work at the rate of 1 hour's pay for each 2 hours of sick leave. The maximum payment is 337.5 hours (37.5 hour weekly schedule) or 360 hours (40 hour weekly schedule).
- At death of the employee, at the rate of 1 hour's pay for each hour of sick leave to the employee's estate. The maximum payment is 675 hours (37.5 hour weekly schedule) or 720 hours (40 hour weekly schedule).
5.3E Employees covered by practices in effect on or before June 30, 1968, shall earn, accumulate, carry over or be paid at a rate established by those practices, provided they remain in the service of the same agency or transfer for reasons beyond their control.
5.3F Upon supervisory approval, which shall not be unreasonably denied, employees may use paid sick leave for the following reasons:
- Employee illness, injury, temporary disability or exposure to contagious disease.
- Employee appointments with doctors, dentists, or other similar practitioners or to accompany the following individuals when their personal attendance is required: employees? spouse or domestic partner; and parent, step-parent or child of the employee, spouse or domestic partner. In exceptional circumstances, agencies may approve the use of sick leave for someone not specifically listed. Whenever possible, such appointments should be scheduled outside of employee's normal working hours.
- Serious illness or injury of the following individuals when their personal attendance is required: spouse or domestic partner; and parent, step-parent, or child of the employee, spouse or domestic partner. In exceptional circumstances, agencies may approve the use of sick leave for someone not specifically listed.
- Employees approved for workers' compensation may request sick leave when they are less than fully paid under workers? compensation. Such leave shall be charged at the difference between workers? compensation pay and their regular pay.
5.3G Employees may not take sick leave with pay in excess of the hours actually accrued. In extreme cases, agencies may allow employees with more than 5 years service, who have not abused sick leave, to "borrow ahead" up to 112.5 hours (37.5 hour weekly schedule) or 120 hours (40 hour weekly schedule) of sick leave after their sick and annual leave is exhausted.
5.3H Employees who are injured on the job and approved for workers? compensation will not be charged with sick leave for any portion of the day of injury.
5.3I Employees who move from non-classified to classified positions shall be credited with any sick leave for which they were not paid. Employees who move from classified to non-classified positions shall transfer accrued sick leave to the extent the receiving agency agrees.
5.4 Compassionate Leave
5.4A Upon the death of an immediate family member, employees shall be granted 22.5 hours (37.5 hour weekly schedule) or 24 hours (40 hour weekly schedule) leave with pay, on a pro-rata basis normally to be used on consecutive work days. Employees may request agency approval for a person not specified as immediate family.
5.4B Employees shall be granted 7.5 hours (37.5 hour weekly schedule) or 8 hours (40 hour weekly schedule) leave with pay, on a pro-rata basis to attend memorial services or related activity of the following: aunt, uncle, niece, or nephew; brother/sister-in-law; grandparent-in-law; or any other relative or friend living in the employee's household.
5.5 Other Leaves With Pay
5.5A Employees shall be excused from work with pay for the following reasons:
- To attend training camp or special duty on orders as a member of the military reserves of the United States or the National Guard, not to exceed 112.5 hours (37.5 hour weekly schedule) or 120 hours (40 hour weekly schedule), on a pro-rata basis, in any calendar year.
- To train and participate as a member of the United States team in any competition sanctioned by the United States Olympic Committee, in the capacity of coach, athlete, official, trainer or group leader, not to exceed 90 working days.
5.5B Employees shall be excused from work with pay for the following reasons: however, they shall return to work within a reasonable time after the conclusion of the following activities. Agencies shall, if possible, make shift changes to accommodate non day shift employees for their involvement in the following:
- To appear under subpoena to testify, unless they are one of the parties in the proceeding or the subpoena arises from other employment or volunteer activities.
- To report to serve on a jury.
- To appear on their own behalf before a hearing officer or the Merit Employee Relations Board in a Merit system grievance. Excusal from work with pay is not authorized for preparation of a grievance or consultation with employees' representatives.
- For a scheduled examination or interview for a Classified position in the State.
5.5C Employees may be excused from work with pay, at agency discretion for the following reasons:
- To serve as a delegate to conventions of unions or employee organizations or to engage in similar job related activities, not to exceed 37.5 hours (37.5 hour weekly schedule) or 40 hours (40 hour weekly schedule) on a pro-rata basis in any calendar year.
- To serve as a volunteer on an advisory body or commission or similar group sponsored by local or State government or statewide organization to programs benefitting diverse segments of Delaware citizens.
- To respond to volunteer emergency fire duty, if they are active firefighters or auxiliary members.
- To respond to disaster relief, not to exceed 15 work days, if they are Certified Disaster Service Volunteers of the American Red Cross.
- As part of a recognition program approved by the Director, not to exceed 7.5 hours (37.5 hour weekly schedule) or 8 hours (40 hour weekly schedule) per award. Such leave must be used within 1 year of being awarded and is not subject to cash payments.
5.6 Leave Without Pay
5.6A Employees shall be granted leaves of absence without pay to serve a tour of active duty in the United States military, plus 90 calendar days beyond the end of active duty. When such employees notify the agency of intent to return to work, with evidence of honorable release from military service, they shall be returned to a position in the same or comparable class for which they qualify.
5.6B Employees may be granted leaves of absence without pay at agency discretion for personal reasons up to 1 year. In exceptional circumstances, additional 6 month periods may be granted, but in no case shall continuous leave exceed 2 years. Employees may return to duty before the expiration of the leave only with agency approval. Employees returning from a leave of absence of 6 months or less shall be returned to the duty assignment previously held. Employees returning from a leave of absence greater than 6 months shall be returned to a position in the same class or comparable class when leave was granted.
5.7 Family and Medical Leave Act (FMLA)
FMLA eligible employees will be provided with FMLA leave in accordance with the Family and Medical Leave Act of 1993. Employees shall be required to use available accrued annual leave and sick leave while on FMLA with the exception of one work week of annual leave and one work week of sick leave, which they may elect to maintain for use upon return to work. Usage of accrued sick leave shall only be in accordance with 5.3.
5.7A FMLA leave shall not be charged to an employee for time missed from work as a result of illness or injury covered by workers' compensation, unless requested by the employee.
5.8 Educational Leave and Assistance
Agencies may approve educational leave without pay. Upon agency request, the Director may approve leave with pay. The purpose of such leave is to permit employees to pursue education or training directly related to State employment which is not available through in-service training.
5.8A Educational reimbursement shall be offered by agencies consistent with their budgetary allowances. Reimbursement will be made only upon submission of evidence of satisfactory completion accompanied by paid receipts. In exceptional circumstances, agencies may pay in advance of course completion. In such case, employees shall reimburse agencies if they do not submit evidence of satisfactory completion. Employees shall reimburse agencies for tuition and paid education leave if they do not submit evidence of satisfactory course completion or if they leave State employment within 6 months of course completion.
5.9 The Director may grant an agency requesting an extended leave of absence to a Classified employee to serve in any nonclassified position described in 29 Del.C., Sec. 5903 (4), (5), (6) and (22). At the end of that appointment, employees shall be returned within 60 days to a position for which they are qualified in the Classified Service, provided that the position is the same paygrade or lower as the position from which they left the Classified Service. They may also return to the Classified Service via the competitive process, in which case they would be considered an in-house candidate for the agency from which they originally received their leave of absence. Pay upon return to the Classified Service is set forth in 4.10.
CHAPTER 6 RECRUITMENT AND APPLICATION POLICIES
It is the policy of the State of Delaware to search widely and vigorously for the most qualified persons to fill positions in the classified service while providing equal employment opportunity and meeting the objectives of the State of Delaware Affirmative Action Plan.
6.1A Agencies shall recruit and advertise as defined by these regulations and directives promulgated by the State Personnel Office.
6.1B Appointing authorities may post a vacancy for agency employees (intra-agency and/or inter-agency) only or may announce a vacancy publicly as long as agency employees are considered in the filling of the vacancy.
6.2 Examination Announcement
When posting a vacant position, the appointing authority shall post intra-agency vacant positions for a period of at least five (5) working days and inter-agency vacant positions for at least fifteen (l5) calendar days before the closing date for receipt of applications. Notices shall contain all pertinent information about the positions being filled.
* When making public announcements of vacant positions, the appointing authority shall announce vacancies in the classified service at least fifteen calendar (l5) days before the closing date for receipt of applications. Examination notices shall be given as wide a distribution as the appointing authority determines necessary, in the classified service, in the press, on radio and television and through contact with professional associations, union organizations, civic groups, educational institutions and neighborhood groups. Examination announcements and notices shall contain all pertinent information about the positions being filled.
6.2A As necessary to assure sufficient numbers of qualified applicants, the appointing authority may continue to accept applications after the originally announced closing date provided the closing date is extended and appropriately publicized.
6.2B The appointing authority may also decide to accept applications for certain examinations without any closing date pursuant to the procedures established by the Director.
6.2C The appointing authority may announce a vacancy with selective requirements, provided the justification for such requirement is job-related.
6.3 Applications for Employment
Applications shall be made on a standard form approved by the Director. Such form shall require information concerning the applicant's past employment, education, training and other pertinent qualifications.
6.3A No question on the application form or during interview shall be so framed as to require information concerning the race, color, religion, national origin, sex, age, or disability of the candidate, except where they are bona fide occupational requirements, or such information is required by law for statistical purposes. No question shall elicit or require information about the individual's political affiliations or beliefs.
6.3B The applications must be signed by the candidate. Any misrepresentation or falsification may result in rejection of application, removal from register, dismissal and disqualification of future applications.
6.3C Each applicant shall receive an acknowledgment of his/her application and general information concerning requirements for placement on lists.
6.4 Rejection of Application
Applications may be rejected if any of the following is established about the applicant:
6.4A The applicant has made false statements or misrepresentations appear on the application.
6.4B Applicant has cheated on an examination or has violated the confidentiality of an examination.
6.4C The applicant is physically, mentally or otherwise unable to perform the duties of the position to which he/she seeks appointment.
6.4D The applicant has failed to comply with the Military Selective Service Act, 50 U.S.C.A. ??451?73 et. seq.
6.4E Criminal court convictions which renders the applicant unsuitable for the position for which application is made.
6.4F The applicant is or has been a member of an organization which advocates the overthrow of the government of the United States or the State of Delaware.
6.4G The applicant does not meet the requirements of the merit system law or of these rules.
6.4H The applicant is unavailable.
6.4I The applicant has been separated from any branch of the armed forces under conditions other than honorable.
6.4J The applicant has been dismissed from State service within the preceding three years.
6.4K The applicant fails to meet the minimum qualification as stated in the class specification of position(s) for which applied.
6.5 Notification of Rejection
Whenever an application is rejected, notice of such rejection with statement of reason shall be promptly provided to the applicant. Rejected applicants may appeal to the Director within ten (10) days of the rejection notice. The decision of the Director shall be final.
CHAPTER 7 EXAMINATIONS and REGISTERS
7.1 Objectives of Examinations
The test used in the examination process shall fairly measure the relative capacities of the persons examined to execute the duties and responsibilities of the positions concerned, or, where appropriate, to learn to perform the duties and responsibilities thereof. Achievement, aptitude, other written tests, performance tests, physical agility and medical tests, oral interviews, evaluations of training and experience, reference checks and other tests will be used, singly or in combination, as determined by the Director, and after consultation with the appointing authorities where appropriate. Results of such evaluations shall be the basis for ranking on various eligibility lists.
7.2 Eligibility for Examinations
Competitive examinations are open to qualified persons who applied in accordance with the vacancy announcement.
7.3 Ranking of Candidates
Those taking competitive examinations will be ranked on the registers in the order of their final scores for the entire examination.
In the case of ties, dates of application and home of record will be used.
7.4 Scoring Examinations and Qualifying Scores
A candidate's score in a given examination shall be the average of the scores on each competitive part of the examination, weighted as shown in the examination announcement. Failure in one part of the examination may be grounds for declaring such applicants as failing in the entire examination or as disqualified for subsequent parts of an examination.
7.5 Notification of Eligibility
Applicants shall be notified in writing whether or not their name is placed on the register.
7.6 Examination Records
The Director or the appointing authority, as applicable, shall be responsible for the maintenance of all records pertinent to the examination process and program. Applications and other necessary examination records shall be kept for one year while the applicant is on the register and at least one year thereafter. If an appeal is filed, examination records must be maintained for the length of the appeal process. All notices of changes of address shall be filed by eligibles with the appointing authority.
7.7 Inspection of Examination Papers
Candidates shall have the right to inspect their examination papers within ten (10) calendar days after the date on which the official notice of examination results was mailed. This time period may be extended by the Director.
7.7A Inspection of examination papers shall be permitted only during regular business hours and in accordance with procedures established by the Director. The Director will determine what examination papers may be inspected, taking into account such factors as test security, privacy, retesting procedures, and any other pertinent information.
7.7B Any error in computation or failure to apply uniform rating procedures, if called to the attention of the Director or appointing authority, as appropriate, within ten (10) calendar days after the date on which official notification results of such rating was mailed, shall be corrected.
7.8 Appeal After Examination
Applicants who have taken an examination or been rated by training and experience may appeal to the Director for review of their rating in any part of such examination to assure that uniform and appropriate procedures have been applied fairly. Such appeal must be mailed to the Director within ten (l0) calendar days after the date on which notification of such rating was mailed. The decision of the Director shall be final.
7.9 Kinds of Registers
The Director shall provide for the establishment and maintenance of such registers as are necessary for filling positions in the classified service.
7.9A Layoff lists shall contain the names of those who have been reduced in force for reasons of lack of work or funds, or abolition of their positions. The name of any person placed on such register shall remain thereon for one (l) year from the date of separation from the service.
7.9B Registers shall include in rank order of final examination score the names of persons who have passed competitive examinations. Names shall remain on such list not to exceed one (1) year from the date of examination. Previous State employees who have left the classified service in good standing and have within two (2) years requested reinstatement shall have their names placed on registers for the class they previously held.
7.9C Permanent or probationary employees desiring a transfer to another agency in the same class shall be placed on registers without a score for consideration by the appointing authority. All such names shall be equally available for consideration. Employees desiring a transfer to another agency in a different class but same paygrade shall be placed on registers after passing any competitive examination and in rank order of their final examination score.
7.10 Related Registers
If a vacancy exists in a position for a class where there is no appropriate list, a list may be prepared from one or more existing related registers.
7.10A For this purpose, registers shall be used for classes for which the Director or appointing authority, as appropriate, has determined that the minimum qualifications and examinations are similar to, the existing vacancy.
7.11 Notice of Availability
At the time of the examination and as appropriate thereafter, information about availability shall be obtained from each applicant, giving a current address and conditions under which appointment will be accepted, including areas of the State in which they are available. Whenever an applicant submits a written statement restricting availability, their name may be withheld from all certifications which do not meet the specified conditions.
7.12 Removal of Names from Registers
Names may be removed from registers by the appointing authority for any of the following reasons.
7.12A One of the causes for rejection of applicants specified in 7.0400. Such applicants shall be sent written notification to their last known address.
7.12B The applicant requests in writing that his/her name be removed.
7.12C The applicant fails to respond to a notice of certification mailed to his/her last known address. The name may be restored to the list if a satisfactory explanation is given to the appointing authority for failure to respond.
7.12D When the applicant has declined three offers of consideration or appointment.
7.12E The applicant fails without valid reason to report for interview, testing or work.
CHAPTER 8: CERTIFICATION
8.1 Request for Certification
Whenever an appointing authority desires to fill a position, a request for certification of eligibles shall be completed following the procedure prescribed by the Director.
8.2 Certification of Eligibles
Upon receipt of a request for certification, the appointing authority shall certify all names from layoff list that exists for the class, names of former employees approved for reinstatement, current employees eligible for transfer and no more than 15 or 15% of the eligible candidates, whichever is the greater number.
8.2A If the appointing authority requests names to fill more than one position, the number of names certified shall be increased by twice the number of additional vacancies.
8.2B While an appointing authority is considering names from a certified list, subsequent requests may be received for certified lists using the same eligibility register for other vacancies. The number of names on each certified list will be determined in accordance with 8.2A, that is, the number of names shall be increased by two (from the base of l5% or 15) for each prior outstanding vacancy being considered from the same employment register.
8.2C Any candidate whose name appears on a certified list may be considered to fill the vacancy for which the list was requested. Should the list be unsatisfactory, it may be returned and subsequent lists may be requested, provided the reasons for rejection accompany the returned list.
8.2D Eligibility lists must be rank ordered in accordance with procedures outlined by the Director. In those circumstances where there are no ranking procedures in place and the number of qualified candidates is equal to or fewer than the maximum number to be certified, names may be certified in alphabetical order. In those instances, the appointing authority must be informed that the list is in alphabetical order.
For tie breaking purposes, Delaware residents with identical final scores will be placed on the certified list.
8.4 Veteran's Preference
Veterans and disabled veterans, as defined or their unremarried widows, shall receive five (5) additional and ten (10) additional points respectively upon successful completion of an examination for initial appointment to State employment only and that they may be required to present proof of honorable discharge, and in the case of disabled veterans, of disability.
CHAPTER 9: PROBATION
9.1 After successful completion of an initial, one-year probationary period, the incumbent shall be a Merit employee. Upon the Director's approval, probationary periods may be extended.
9.2 Employees may be dismissed at any time during the initial probationary period. Except where a violation of Chapter 2 is alleged, probationary employees may not appeal the decision.
9.3 Employees in the initial probationary period who move into another classified position must satisfactorily complete the probationary period for the new class but shall become Merit employees at satisfactory completion of probation, for the new class or two years of Merit service, whichever occurs first.
9.4 Merit employees serving a probationary period after promotion who fail to satisfactorily complete the probationary period, may be placed by agencies internally without loss of benefits or agencies may notify the Director who shall decide the matter. If available, the employee may be returned to his/her former position and salary without any loss of benefits.
9.5 Upon reinstatement, employees who left the Merit System shall be required to serve an initial probation period.
CHAPTER 10: OTHER APPOINTMENTS
10.1 Limited Term Appointment
Limited term appointments are permitted when a Merit vacancy exists that is not of a continuing nature, but is projected to exceed 90 days. Such vacancies may be filled for a period of up to 1 year. The Director may approve a longer time period. Established selection procedures shall be followed for filling the vacancy.
10.1A Merit employees who accept limited term appointments shall be placed in a vacant position comparable to their former class in the present agency at the end of the limited term appointment. If agencies demonstrate that no comparable vacant position exists, employees shall be given hiring preference.
10.1B The period of temporary service in a Classified position immediately prior to a probationary appointment to the same class shall constitute a part of all of the required probationary period if performance has been evaluated on the same basis as is required in 9.2 for the probationary period. In such cases, vacation and sick leave shall accrue retroactively.
10.2 Emergency Appointment
When there is immediate need to prevent stoppage of public business or serious impairment to the public service, and it is not possible to secure such persons from appropriate registers, agencies may make emergency appointments. Such appointments shall not exceed 30 days.
10.3 Exceptional Appointment
The Director shall establish procedures for exceptional employment, which shall occur without competitive examination or a Hiring List. Exceptional appointees shall successfully complete a trial work period, or pass a competitive examination, before being considered for Merit or probationary employment in the Classified Service.
Candidates selected for promotion shall meet the position's minimum qualifications. Vacancies shall be filled by promotion wherever practical and in the best interest of the classified service. Consideration shall be given to qualifications, performance record, seniority, conduct and, where applicable, the results of competitive examinations.
Employees may be placed in a position in a lower paygrade upon voluntarily requesting such action, when subject to layoff, or for just cause, if they meet the minimum qualifications for the lower paygrade position. When agencies agree to employee requests for voluntary demotions, State Personnel may waive job-posting requirements upon written request by the agencies, which justify such action.
To promote the efficiency of the service, unrelated to employee performance, employees may be transferred to another position for which they meet minimum qualifications in the same paygrade within the same agency with or without competition.
10.6A Upon mutual consent between agencies and employees, employees may be transferred from one position to another position in the same paygrade for which they meet minimum qualifications without competition.
10.7A Temporary underfilling is permitted for operational necessity, demotion or other valid reasons with the approval of the Director.
10.7B A position may be underfilled at any level in a Career Ladder in accordance with criteria approved by the Director. The position incumbent may be promoted through the Career Ladder based on the promotional standards.
10.8 Dual Incumbency
With the approval of the Director and the Budget Director, employees may temporarily occupy the same position as a paid primary incumbent.
10.9 To resolve litigation issues, grievances, or disputes between agencies about the placement of employees, the Director may move employees from one position to another position for which they qualify in the same or lower paygrade within the Merit System without competition.
10.10 Agencies shall make every effort, based on organizational needs, to place temporarily disabled employees in alternate duty assignments, subject to medical restrictions, for a period of 90 days. Extensions may be granted contingent upon expectations of employees' release to full duty within a time frame that meets agencies' operational needs. Such requests for extensions shall not be unreasonably denied.
CHAPTER 11: LAYOFF PROCEDURES
11.1 Agencies may choose to lay off Merit employees for legitimate substantiated reasons (e.g. loss of funding, abolishment of the position) unrelated to their conduct or performance.
11.2 The Director shall determine the boundaries of the layoff field.
11.3 Employees who have been identified as layoff candidates shall be given at least 30 days written notification by the agency, unless an emergency condition exists.
11.4 Employees identified as layoff candidates shall be given hiring preference.
11.5 Employees who cannot be placed via hiring preference shall be placed in any vacancy for which they qualify in their class or occupational series, which is equal to or no more than 3 paygrades lower than their current paygrade within the layoff field. Employees may choose to be placed in a vacancy that is more than 3 paygrades lower.
11.6 Employees shall be presumed to exercise bumping rights in their county of employment only, unless they provide notice to the agency authority within 10 calendar days of receiving the layoff notice. Employees may waive their bumping rights.
11.7 If placement is not possible under 11.5, bumping shall begin. Employees may only bump employees having less seniority. Employees, in order of seniority, shall bump the least senior employee in their present class, and, as necessary, bump the least senior employee in each succeeding lower class until there are no positions within the same occupational series into which employees may bump.
11.7A Career ladder employees shall bump employees within their career ladder who are at the same or lower paygrade and have the least seniority.
CHAPTER 12 EMPLOYEE ACCOUNTABILITY
12.1 Employees shall be held accountable for their conduct. Disciplinary measures up to and including dismissal shall be taken only for just cause. "Just cause" means that management has sufficient reasons for imposing accountability. Just cause requires:
showing that the employee has committed the charged offense; offering specified due process rights specified in this chapter; and imposing a penalty appropriate to the circumstances.
12.2 Employees shall receive a written reprimand where appropriate based on specified misconduct, or where a verbal reprimand has not produced the desired improvement.
12.3 Prior to finalizing a dismissal, suspension, fine or demotion action, the employee shall be notified in writing that such action is being proposed and provided the reasons for the proposed action.
12.4 Employees shall receive written notice of their entitlement to a pre-decision meeting in dismissal, demotion for just cause, fines and suspension cases. If employees desire such a meeting, they shall submit a written request for a meeting to their Agency's designated personnel representative within l5 calendar days from the date of notice. Employees may be suspended without pay during this period provided that a management representative has first reviewed with the employee the basis for the action and provides an opportunity for response. Where employees' continued presence in the workplace would jeopardize others' safety, security, or the public confidence, they may be removed immediately from the workplace without loss of pay.
12.5 The pre-decision meeting shall be held within a reasonable time not to exceed l5 calendar days after the employee has requested the meeting in compliance with
12.6 Pre-decision meetings shall be informal meetings to provide employees an opportunity to respond to the proposed action, and offer any reasons why the proposed penalty may not be justified or is too severe.
12.7 Fines of not more than l0 days pay may be imposed, provided they do not cause employees to be paid less than the federal minimum wage as set forth in the Fair Labor Standards Act.
12.8 Adverse documentation shall not be cited by agencies in any action involving a similar subsequent offense after 2 years, except if employees raise their past work record as a defense or mitigating factor.
12.9 Employees who have been dismissed, demoted or suspended may file an appeal directly with the Director or the MERB within 30 days of such action. Alternatively, such employees may simultaneously file directly with the Director, who must hear the appeal within 30 days. If the employee is not satisfied with the outcome at the Director’s level, then the appeal shall continue at the MERB.
CHAPTER13 PERFORMANCE REVIEW
13.1 Purpose of Performance Review
The Director shall provide for systematic performance review to communicate expectations and responsibilities, recognize achievement, and identify areas for skill development and work performance improvement.
13.2 Changes in Performance
Recognition of effort, accomplishment, improvement or the need for further skill development shall be addressed as needed by verbal discussions, written communication, and/or formal documentation.
13.3 Unsatisfactory Performance
When an employee's work performance is considered unsatisfactory, the performance must be documented in writing, and the specific weaknesses must be made known to the employee. The employee shall be given documented assistance to improve by the designated supervisor. An opportunity for re-evaluation will be provided within a period of 3 to 6 months.
13.4 Review Appeal
The employee shall have the right to discuss any performance review or documentation with the next level of authority and may submit written comments.
CHAPTER 14 EMPLOYEE DEVELOPMENT AND COMMUNICATIONS
14.1 Employee Development
The Director shall encourage and assist the appointing authorities to initiate and develop programs to improve the work effectiveness and morale of the State's employees, including training, safety, health, welfare, recreation, counseling and employee and labor relations.
14.2 Employee Communications
The Director is authorized to publish an employee newspaper, an employee handbook, websites and such other publications as deemed appropriate.
CHAPTER 15 EMPLOYEE RESPONSIBILITIES
Appointing authorities shall be responsible for the attendance of all employees in their agency. No employee shall be paid unless he/she is at work in accordance with these rules and departmental or agency rules or he/she is on authorized paid leave.
15.1A Every employee is required to report to work on time each day. When because of emergency or sudden illness employees cannot report for work, they shall notify their supervisor within the first hour of absence, or as soon as practical thereafter, giving reason for their absence.
15.2 Outside Employment and Pecuniary Interests
15.2A An employee in the classified service shall not engage in any outside employment or other outside activity incompatible with the proper discharge of the responsibilities of his or her position. It shall be deemed incompatible with such discharge of responsibilities for an employee to accept any fee, compensation, gift, payment of expenses or any other thing of monetary value under circumstances in which acceptance may result in a conflict with his/her public duties.
15.2B An employee in the classified service shall not have a personal interest in any business transaction within his area of influence in State Government nor shall he/she have any private business relationship that may conflict with his/her public duties. This restriction shall not prohibit, however:
15.2C Ownership of corporate stocks and bonds bought and sold on the public market.
15.2D Receipt of bona fide reimbursement for actual travel expense and other necessary subsistence for which government payment or reimbursement is made.
15.2E Participation in the affairs of charitable, religious, non-profit education, public service or civic organizations, or the activities of national or state political parties not prohibited in 15.3.
15.2F Awards for meritorious public contributions given by public service or civic organizations.
15.3 Political Activity
In accordance with 29 Del. C. ?5954, no employee in the classified service shall engage in the following activities:
15.3A "No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for any consideration."
15.3B "No employee in the classified service shall engage in any political activity or solicit any political contribution, assessment or subscription during his hours of employment or while engaged in the business of the State."
15.3C "No person shall induce, directly or indirectly, any employee in the classified service to make any contribution, assessment or subscription to a political party under the representation, actual or implied, that such assessment, subscription or contribution will have any effect on the employee's employment with the State."
15.3D Any officer or employee in the classified service who violates any of the provisions of this section shall forfeit his office or position, and for one (1) year shall be ineligible for any office or position in the State service. The Director shall investigate any signed written charge that this section on political activity has been violated and shall take whatever steps are necessary to insure compliance with the above.
15.3E Employees in Federally funded programs subject to I.M.S.S. are further restricted in political activity according to provisions of the Hatch Act.
CHAPTER 16: HUMAN RESOURCE RECORDS
16.1 Master Personnel Records
A master personnel record for each employee shall be established and maintained by each agency. The records shall include copies of: application for employment; each Human Resource transaction; attendance and leave records; employee Performance Review documents; grievance records; verification of education and employment and any other records or information considered appropriate. At the discretion of the Director, these records may be either physical (hard) copies or computer-stored data. Personnel records are confidential and shall be maintained as necessary to ensure their confidentiality. These and other employee records shall be readily available for review by the Director or the Director’s designee. Unauthorized disclosure of any portion of a State employee’s records shall be grounds for dismissal.
16.2 Employee Access to Records
Employees shall have controlled access to their records. After obtaining permission of the appointing authority, employees shall be scheduled to examine their records under the supervision of those charged with maintaining such records.
16.3 Human Resource Transactions
All appointments, separations, and other HR transactions shall be made as specified by the Director.
CHAPTER 17: PAYROLL
17.1 Payroll Change
An agency head or other official may add an employee to the payroll, change his/her salary or status only upon prior execution of the properly completed human resource transactions as specified by the Director.
17.2 Review of Payrolls
No person shall make or approve payment for personal services to any employee in the classified service unless the appropriate documents are certified by the appropriate State officer to the effect that the individual is an employee in accordance with Delaware Code and these rules.
The Director shall conduct such audits of State payrolls and such other investigations as deemed necessary to assure compliance with Delaware Code.
17.31 Any violations shall be called immediately to the attention of the appropriate agency head and to the Budget Director, Auditor of Accounts and State Treasurer.
17.32 Thereafter, no payment shall be made to any employee whose salary rate has been questioned until the rate has been adjusted to the satisfaction of the Director.
17.33 If the Director wrongfully withholds certification of the payroll account of any employee, such employee may take court action to compel the Director to certify such payroll.
17.4 Recovery of Salaries Improperly Paid
In accordance with the provisions of Delaware Code, officials may be held liable for the return of any salaries they wrongfully authorize.
CHAPTER 18: THE GRIEVANCE PROCEDURE
18.1 To promote positive working relationships and better communications, employees and their supervisors shall informally meet and discuss employee claims of Merit Rule or Merit law violations prior to filing a formal grievance. Merit employees have the right to use this grievance procedure free of threats, intimidation or retaliation, and may have union or other representation throughout the process.
18.2A "grievance" means an employee complaint about the application of the Rules or the Merit System law (29 Delaware Code. Chapter 59), which remains unresolved after informal efforts at resolution have been attempted. A grievance shall not deal with the substantive policies embodied in the Merit System law.
18.3 An employee who is in a bargaining unit covered by a collective bargaining agreement shall process any grievance through the grievance procedure outlined in the collective bargaining agreement. However, if the subject of the grievance is non-negotiable pursuant to 29 Del. C, 5938, it shall be processed according to this Chapter.
18.4 Failure of the employing agency to comply with time limits shall automatically move the grievance to the next step unless the parties have a written agreement to delay, or grievants have opposed in writing moving the grievance automatically to the next step. Failure of the grievant to comply with time limits shall void the grievance. The parties may agree to the extension of any time limits or to waive any grievance step. Grievances about demotions for just cause, suspensions or dismissals shall start at Step 2 within 14 calendar days in the manner set forth in18.7.
18.5 Grievances about promotions are permitted only where it is asserted that (1) the person who has been promoted does not meet the minimum qualifications; (2) there has been a violation of Merit Rule 2.1 or any of the procedural requirements in the Merit Rules; or (3) there has been a gross abuse of discretion in the promotion.
18.6 Step 1: Grievants shall file, within 14 calendar days of the date of the grievance matter or the date they could reasonably be expected to have knowledge of the grievance matter, a written grievance which details the complaint and relief sought with their immediate supervisor. The following shall occur within 14 calendar days of receipt of the grievance: the parties shall meet and discuss the grievance and the Step 1 supervisor shall issue a written reply.
18.7 Step 2: Any appeal shall be filed in writing to the top agency personnel official or representative within 7 calendar days of receipt of the reply. The following shall occur within 30 calendar days of the receipt of the appeal: the designated management official and the employee shall meet and discuss the grievance, and the designated management official shall issue a written response.
18.8 Step 3: Any appeal shall be filed in writing to the State Personnel Director within 14 calendar days of receipt of the Step 2 reply. This appeal shall include copies of the written grievance and responses from the previous steps. The parties and the Director (or designee) may agree to meet and attempt an informal resolution of the grievance, and/or the Director (or designee) shall hear the grievance and issue a written decision with 45 calendar days of the appeal’s receipt. The Step 3 decision is final and binding upon agency management.
18.9 If the grievance has not been settled, the grievant may present, within 20 calendar days of receipt of the Step 3 decision or of the date of the informal meeting, whichever is later, a written appeal to the Merit Employee Relations Board (MERB) for final disposition according to 29 Del. C. 5931 and MERB procedures.
18.10 Retroactive remedies shall apply to the grievant only and, for a continuing claim, be limited to 30 calendar days prior to the grievance filing date. Any financial settlement shall be reduced by the amount of the grievant’s earnings during the period covered by the settlement regardless of source, excluding part-time income which was received prior to the separation.
18.11 Grievants may attend any meeting held pursuant to this Chapter without loss of pay; provided, however, grievance preparation and investigation time, and any discussion time with their grievance representative shall not be done during employee work time.
Chapter 19: DEFINITIONS
Adjusted Service Date: total length of employment in State of Delaware positions used to calculate vacation accrual rates. The Director shall establish procedures for calculating this time.
Agency: any board, department, elected office or commission which receives an appropriation in accordance with 29 Del. C., Chapter 59. This definition does not preclude the establishing of exempt positions in organizational units within departments.
Aggregate Service: means total length of employment by the State of Delaware, minus breaks in service.
Appeal: a request for ruling per specified sections of the Merit Rules to the Director or the MERB as appropriate.
Appointing Authority: the official, or designee, who has the authority to make appointments to, or dismiss employees from, the Merit service. (The appointing authority is the Cabinet Secretary of the department or the agency head of those units which are not a part of a larger agency. Only the Cabinet Secretary or agency head may dismiss employees.)
Bumping: an employee identified for layoff may displace an employee in the same class grouping at the same or lower paygrade with less Merit service in the defined layoff field. The employee shall meet the minimum qualifications. Neither (a): limited term appointment employees; nor (b): employees whose performance record contains more than one unsatisfactory appraisal within the past 3 years; shall be eligible to exercise bumping rights.
Career Ladder: a hierarchy of classes within a class series, established and approved by the Director, which permits employee movement along a career path without competition upon meeting all promotional standards.
Casual/Seasonal Employees: employees serving in positions pursuant to Section 5903 (17) of Title 29 of the Delaware Code. Such employees are not covered by the merit rules. Such employees may be covered by collective bargaining agreements and by other State and Federal laws such as the Fair Labor Standards Act, Title VII of the Civil Rights Act, the Family Medical Leave Act, etc.
Class: all Merit positions sufficiently similar in duties, responsibilities and qualification requirements to use the same salary range and title. (Example--Civil Engineer I, Office Manager, Forester)
Classification: the analysis of the duties and responsibilities of a position and its assignment by the Director to a class.
Class Series: a progression of classes in the same line of work reflecting different degrees of responsibility and difficulty of duties. (Example--Management Analyst I, Management Analyst II, Management Analyst III)
Class Specification: a written description of the distinguishing characteristics of all positions in a class, including typical duties and responsibilities and minimum qualifications.
Contractual Employees: employees providing service through a contractual relationship with the State either directly or via another employing organizing. Contractual employees are not covered by the merit rules.
Demotion: the movement of an employee from a position in a class of a higher paygrade to a position in a class of a lower paygrade through a process other than reclassification.
Director: the Director of State Personnel, appointed pursuant to 29 Del. C., Chapter 59, or designee.
Disability: a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such impairment or being regarded as having such an impairment.
Domestic partner: the person with whom the employee's life is interdependent, with whom the employee maintains a committed relationship and with whom the employee shares a mutual residence.
Employee: any person holding a position in the Classified Service.
Essential Functions: the fundamental job duties of an employment position.
Examination: the process by which applicants are evaluated for a position in the Merit System. An examination may consist of, but is not limited to, oral, written or performance tests, or a rating of the candidate's training and experience.
Exceptional Employment: Employment of individuals with disabilities through special program such as the Agency Aide or Selective Placement Program.
FMLA Eligible Employee: an employee who has at least one year of state service and has been paid for at least 1,250 hours over the 12-month period prior to the first day of the FMLA leave.
FMLA Leave: leave taken in accordance with the provisions of the Family and Medical Leave Act of 1993.
Grievance: Merit employee's claim that these rules or the Merit system statute has been violated. A grievance may not deal with the content of the Rules or the Merit system statute.
Hazardous Duty Pay: uncontrollable circumstances that involve an unusual risk of serious physical injury, impairment to health or death resulting from accidental, negligent or intentional causes. Compensation for Exposure Levels A & B shall be set in the Budget Act. The following two degrees of exposure are recognized
Exposure Level A: Continuing exposure to hazards where the employee's responsibility is to deal with the hazard as a function of assigned duties.
Exposure Level B: Proximate exposure to hazards where it is not the employee's stipulated job duty to deal with the hazard, or occasional exposure to hazards where the employee's responsibility is to deal with the hazard as a function of assigned duties.
The following definitions shall be used to determine eligibility for hazardous duty pay:
Continuing: frequency of exposure is normally more than 50% of employees? working time.
Occasional: frequency of exposure is normally more than 5% but less than 50% of employees' working time.
Uncontrollable: precautions, such as safety and life support equipment, are either impractical to be used continually or are insufficient to assure reasonable safety.
Proximate: the location of employee's work site precludes evacuation as a means of avoiding exposure to serious physical injury, impairment to health or death resulting from accidental, negligent or intentional cause.
Hiring List: the list of finalist candidates eligible to fill a vacant position.
Hiring Preference: special placement for 1 year on a Hiring List for a position at the employees? current paygrade or lower for which the employee meets minimum qualifications. Employees shall be required to pass any written tests if the position is outside their class series. Employees with more than 1 unsatisfactory performance appraisal in the last 3 years shall not be eligible for hiring preference. Hiring preference is granted for one year or until employees are placed in the same class, whichever occurs first.
Human Resource (HR) Action--any employment action including, but not limited to the hiring process, discipline, promotion, compensation, classification, benefits, employee and labor relations.
Immediate Family: the employee's spouse or domestic partner; parent, step-parent or child of the employee, spouse or domestic partner; employee's grandparent or grandchild; employee's sibling; spouse of employee's child; or any minor child for whom the employee has assumed and carried out parental responsibilities.
Layoff Field: specific boundaries, such as Department, Division, section, etc., used to determine parameters of bumping.
Merit Employee: an employee who has satisfactorily completed the initial probationary period for a classified position.
Merit Compensatory Time: for employees in FLSA-covered positions authorized to work a 37.5 hour week means those hours worked between 37.5 and 40 hours per week. For employees in FLSA-covered positions who are authorized to work FLSA approved specialty exemptions, means those hours worked in excess of the employee's regular schedule and less than the FLSA minimum for overtime. For employees in FLSA-exempt positions, means those hours worked beyond the employee's standard work week, either 37.5 or 40 hours.
Merit Factors: include, but are not limited to, consideration of training, experience, knowledge, skill, education, conduct, and performance record of applicants or employees in the classified service.
Merit Service: length of employment by the State of Delaware in classified position(s) minus breaks in service.
Merit System Law: refer to 29 Del. C., Chapter 59.
Minimum Qualifications: minimum entry requirements, including selective requirements, which must be met for an individual to be eligible for appointment to a classified position or to take an examination. These requirements typically include minimum levels or types of education, training or experience or completion of specified examinations. The Director may approve documented equivalencies.
Night Shift: a night shift for these purposes shall be a shift which includes four or more hours of work between the hours of 6:00 p.m. and 8:00 a.m. the following day.
Occupational Series: a group of related classes requiring similar skills and training.
Paygrade: one of the horizontal pay ranges designated on the pay plan consisting of a series of percentage of midpoint columns identifying specific values.
Pay Range: means lowest to highest dollar value assigned to a paygrade.
Preferential requirement: any education, training and/or experience not specifically indicated in the minimum qualifications that are desirable but not required.
Probationary Period: the trial period of employment. Initial probationary period occurs when an employee first enters the Merit service. Promotional-probationary period occurs when a Merit employee is promoted.
Pro-rata Basis: a proportional share based on the percent of full-time at which a position is filled, with a 100% share being the maximum allowable share. A 100% share of a day is 7.5 hours or 8 hours. The calculation of leave shall be rounded up to the nearest quarter hour.
Reassignment: Any movement within the same budgeted position within the same county.
Register: a list of qualified candidates ranked by score or alphabetically (where there are less than 15 qualified applicants) to fill vacant positions in a particular class.
Reinstatement: the rehiring of an individual into the same class within a 2-year period from which the individual left the position in good standing.
Rotating Shift: a change in a work schedule 1.) for at least 2 days in a work week which includes 4 or more hours of work daily, 2.) or that involves different schedules with no more than 30 continuous days on a shift which does not qualify as night shift per 4.16A.
Selective Market Variation (SMV): Selective Market Variation (SMV) is a process used to increase the salary range for job classifications where severe market competition makes it difficult for the State to recruit and retain qualified employees.
Selective Requirement: any education, training and/or experience not specifically indicated in the minimum qualifications of a class specification that are required as they are considered job related and essential for effective performance in a specific position at time of hire.
Seniority: total length of employment in Classified positions by the State of Delaware. This time shall be adjusted whenever an unpaid leave of absence exceeds 30 calendar days, except in the case of military leave granted in accordance with 5.5A.
Shift Differential Pay: compensation for working inconvenient hours and schedules as authorized at the agency's discretion and described below:
Night Shift: a shift which includes four or more hours of work between the hours of 6:00 p.m. and 8:00 a.m. the following day.
Rotating Shift: a change in a work schedule 1.) for at least two days in a work week which includes 4 or more hours of work daily, or 2.) that involves different schedules with no more than 30 days on a shift which does not qualify as night shift per 4.16 A.
Split Shift: any shift which is broken into two parts with two or more hours between the parts. Employees authorized and required by agencies to work split shifts shall receive supplemental pay for the entire shift equal to 5% of their paygrade midpoint.
Supervisor: a person in a position who, on a regular and continuing basis, plans, assigns, reviews, disciplines, recommends hire, termination and promotion and completes and approves performance plans of two or more classified employees excluding casual, seasonal, and contractual employees.
Transfer: Any movement between positions in the same pay grade as long as the employee meets the minimum qualifications.
Underfill: Filling a position in a lower pay grade than the position is authorized.
Veteran: those individuals who have been honorably separated from the Armed Forces after one of the following events:
-Service between April 6, 1917, to July 2, 1921; or December 7, 1941, to July 1, 1955; or
-Service of more than 180 consecutive days after January 31, 1955, (not counting service under an initial period of active duty for training under the "6 month" Reserve or National Guard programs); or
-Service in a campaign for which a campaign badge has been authorized. (Disabled veterans are those individuals (as above) who have established the present existence of a service-connected disability or who are receiving compensation, disability retirement benefits or pensions by reason of public laws administered by the Veterans' Administration or the Department of Defense, requiring the assignment of a claim number.)
RULES GOVERNING PRACTICE AND PROCEDURE BEFORE THE MERIT EMPLOYEE RELATIONS BOARD OF THE STATE OF DELAWARE
EFFECTIVE JANUARY 1, 2004
RULE NO. 1: APPLICABILITY, CONSTRUCTION,
SPECIFIC ORDERS, WAIVER
(A) These rules govern practice and procedure in all matters before the Merit Employee Relations Board (hereinafter “Board”) and shall be liberally construed to secure a just, economical, and reasonably expeditious determination of the issues presented in accordance with the Board’s statutory responsibilities.
(B) The Board may for good cause, either upon application or upon its own motion, waive any of these rules of practice and procedure.
RULE NO. 2: ADDRESS OF THE BOARD; OFFICE
(A) All communications to the Board or the Board’s staff shall be addressed to “The Merit Employee Relations Board” at the Margaret M. O’Neill Building, Suite 213, 410 Federal Street, Dover, Delaware 19901, or such other address as the Board may adopt from time to time.
(B) The normal office hours of the Board will be from 8:00 a.m. until 4:30 p.m. each weekday, excepting Saturdays, Sundays, legal holidays, or unless otherwise provided by statute or Executive Order.
RULE NO. 3: DEFINITIONS
(A) All terms defined in the Merit Rules of the State of Delaware applicable to all positions and employees in the classified service shall have the meaning as set forth in said Merit Rules.
(B) “Board” - The Merit Employee Relations Board.
(C) “Board Staff” - All persons employed by the Board or assigned to the Board by another Agency of the State of Delaware.
(D) “Presiding Officer” - The Chair or the next senior Board member in appointment to the Board or a duly designated Hearing Examiner presiding at any Board proceeding.
(E) “Proceeding” - Any undertaking by the Board, upon its own motion, or otherwise, formal or informal, whereby the Board seeks to exercise its statutory authority.
(F) “Shall” - is mandatory.
(G) “Should” and “may” - are permissive.
RULE NO. 4: THE SECRETARY;
WITH THE BOARD
(A) The Secretary to the Board shall be the Administrative Assistant employed by the Board or such other individual as the Board designates from time to time by written order or otherwise. The Secretary shall be responsible for the maintenance and custody of the Board’s dockets, files, opinions, orders, rules, forms, and other material filed with the Board.
(B) All papers required to be filed with the Board shall be filed with the Secretary at the Board office within such time limits, if any, as may be fixed by law, rule, or order of the Board. The Secretary shall not file any paper until the fee, if any, required by law or rule shall have been paid.
(C) The Secretary shall mark or cause to be marked on each communication addressed to the Board and on each pleading, brief, or other document filed with the Board, the time and date of receipt by the Board.
(D) Subsequent to the docketing of any matter by the Board, all papers of whatever character offered for filing in the docket by any party, shall show the title and style of the proceeding, the docket number, and the name of the person submitting the paper. The Secretary may, in his or her discretion, reject any paper not so identified.
(E) The Board’s date and time stamp shall not be affixed to any document which, in the exclusive and final determination of the Secretary or his or her designee, is not sufficiently legible as received.
(F) All papers filed with the Board shall be approximately 8 ½ inches by 11 inches in size and should be typewritten upon opaque, unglazed white paper. Legibly printed or hand-written papers may be accepted.
(G) Filing with the Board by electronic media such as telephonic facsimile transmission or electronic file transfer may be made subject to Rule (E) above.
RULE NO. 5: SERVICE OF DOCUMENTS; PROOF
(A) Each person filing an appeal, grievance, pleading, or other document with the Board in any proceeding shall, not later than the time of filing, serve a copy of such document on each party, or other person required to be served by rule, order, or law. An employee shall in all events serve his or her Agency with a copy of any filing with the Board and the Agency shall serve any employee or his or her counsel.
(B) Each party shall accompany any pleading or document filed with the Board with proof of service in accordance with this rule.
RULE NO. 6: PUBLIC ACCESS TO BOARD
(A) The Secretary shall make available for public inspection and copying during regular business hours of the Board all public records of the Board as defined in 29 Del. C. §10002(d). Documents pertaining to non-public disciplinary proceedings shall not be made available for public inspection except pursuant to an order of the Board pursuant to 29 Del. C. §5948.
(B) In the event a public record is in active use or in storage and, therefore, unavailable at the time access is requested, the Secretary shall so inform the person seeking access and make an appointment for the person to examine such record as expediently as it may reasonably be made available.
(C) For copying a public record, the Secretary shall charge a fee in accordance with the charges made by other State Agencies as established by the Secretary of the Department of Administrative Services.
RULE NO. 7: EX PARTE COMMUNICATIONS
No member or employee of the Board who will participate in any way in the rendering of a decision on a matter pending before the Board shall, directly or indirectly, discuss or communicate, concerning such matter with any party, except upon notice to and opportunity for all parties to participate. This rule does not apply to communications required for the disposition of ex parte matters authorized by law, or to communications, not otherwise prohibited, by and among the members of the Board, Board staff, and Board legal counsel.
RULE NO. 8: TIME
(A) In computing any period of time prescribed or allowed by any rule, order, or notice of the Board, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it falls on a Saturday, Sunday, or a day made a legal holiday by the laws of this State or of the United States, in which event, the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed is less than ten (10) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
(B) For good cause shown the Board or the Presiding Officer may extend any period of time prescribed or allowed by any Board rule, order, or notice.
RULE NO. 9: APPEARANCES
(A) Subject to the Rules of the Delaware Supreme Court, a person may appear before the Board in person or by an attorney or, where permitted by the Court, other lawfully designated representative. If a person is represented by more than one individual, that person must designate a single individual to receive service. With approval of the Presiding Officer or Hearing Examiner, additional persons may be added to the service list in a proceeding before the Board.
(B) The Board may deny, either temporarily or permanently, the privilege of appearing before it to any attorney or other authorized representative who has engaged in illegal, unethical, or improper behavior with respect to a matter before the Board.
RULE NO. 10: FILING APPEALS
(A) All appeals filed with the Board, whether direct appeals or appeals after one (1) or more of the Steps in the grievance process under the Merit Rules, shall be in writing, shall be signed by the appellant or his or her attorney, and shall include at least the following:
1. A specific identification of the act or omission complained of and the date or dates of occurrence or non-occurrence;
2. The identification of the Merit Rule or Rules alleged to have been violated;
3. A summary of the argument and legal authorities to be presented;
4. Full name, mailing address, and telephone number of the appellant and his or her attorney or lawful representative, if any;
5. The full identification of the appointing authority or other entity whose action or inaction is the subject of the appeal;
6. If applicable, a copy of the written decision(s) from the last step of the grievance process.
(B) Each appeal shall have a section wherein the appellant sets forth a brief summary of the evidence he or she expects to present at hearing, showing that the appeal is timely filed with the Board pursuant to the applicable statutes or Merit Rules, and is otherwise within the jurisdiction of the Board.
RULE NO. 11: SCHEDULING OF MATTERS
BEFORE THE BOARD
(A) Matters involving termination of employment, suspension for more than three (3) days, or demotion will normally be allotted one (1) full day for hearing. All other matters will normally be allotted one-half (½) day or less for hearing before the Board. Exceptions to these limitations may be granted by the Board, but only for good cause shown. If any party believes that the presentation of his or her case cannot reasonably be accomplished in one-half (½) of the allotted time or less, then he or she should so notify the Secretary to the Board in writing as soon as possible with a request for additional time setting forth the reasons for such request.
(B) All parties are expected to use stipulations and agreements to establish facts about which there is no reasonable dispute in order to meet the Board’s scheduling requirements.
RULE NO. 12: MOTIONS
(A) A party in any Board proceeding may file and serve a motion at any time unless otherwise provided. A written motion shall contain a concise statement of the facts and law which support it and a specific request for relief. Any case dispositive motion, such as a motion to dismiss, should be filed and served as soon as possible prior to the start of the hearing. A written reply to a case dispositive motion may be filed. No motion may be filed with the Board without proof that a copy of the motion has been served on the non-moving party(ies).
(B) The Board or Presiding Officer may, in his or her discretion, permit oral motions and oral or written responses to be made during a hearing.
RULE NO. 13: PRE-HEARING PROCEDURE
(A) Conferences. The Board President or Presiding Officer may, at any time prior to the hearing, direct the parties to appear for a conference or to participate in a teleconference to consider:
(1) Scheduling and the simplification of the issue(s)
(2) The necessity or desirability of amendments to the papers filed or for additional papers to be filed, or for the voluntary exchange of information which will facilitate the prompt and just resolution of the issues;
(3) The possibility of obtaining stipulations as to the admissibility of facts and documents which will avoid unnecessary proof;
(4) The limitation of the number of witnesses and such other matters as may aid in the disposition or expedition of the matter;
(5) The Board President or Presiding Officer may issue such written Orders as may be necessary to address matters arising at the pre-hearing conference.
(B) Required Document Submission.
(1) Not less than five (5) days prior to the scheduled hearing date, all parties must submit a type written or legible handwritten summary of the expected testimony of each individual which that party will call as a witness. Such written summary should not exceed two (2) 8 ½ by 11 inch pages for each witness and shall set forth a summary of the facts and opinions to which the witness is expected to testify.
(2) No witness will be permitted to testify unless the written summary of expected testimony has been timely filed or unless such requirement is waived by the Board or Presiding Officer for good cause shown.
RULE NO. 14: PROCEDURES DURING HEARINGS
(A) A verbatim record of the proceedings before the Board or Presiding Officer will be made either electronically or stenographically. The Presiding Officer will open the hearing by naming the parties, stating the nature of the appeal and the relief sought. Three (3) members of the Board will constitute a quorum for all proceedings before the Board, and the vote of a majority of the quorum will control.
(B) All testimony before the Board shall be taken under oath or affirmation. Any probative evidence will be admitted, except that evidence which is irrelevant, immaterial, or unduly repetitive may be excluded. Technical rules of evidence shall not apply.
(C) In appeals involving disciplinary action, the moving party shall be the appointing authority. In all other appeals the moving party shall be the appellant. The designation of the moving party shall not change the ultimate burden of proof on any issue or matter.
(D) The moving party will be afforded the opportunity to open the hearing with a brief opening statement. Following such statement or the waiver thereof, the opposing party will be permitted the opportunity for a brief opening statement. Thereafter, the moving party shall present evidence in support of its position. Following the opportunity for reasonable cross-examination and questions, if any, by the Board or Presiding Officer, the opposing party will be afforded the opportunity to present evidence which will be subject to cross-examination by the moving party and questions by the Board or Presiding Officer. Further evidentiary presentations may be permitted in the discretion of the Board or Presiding Officer with the party having the burden of proof normally being afforded the final opportunity to present evidence and argument to the Board or the Presiding Officer.
(E) Any party intending to offer written material as exhibits must ensure that there are sufficient copies available for the Board’s files (two (2) copies), for each Board member (five (5) copies), and for opposing counsel. The parties are encouraged to agree upon and, where feasible, pre-mark all exhibits and submit the agreed upon materials to the Board as soon as possible before the hearing.
(F) Post hearing submission of briefs or memoranda will be as directed by the Board or Presiding Officer.
RULE NO. 15: POST-HEARING PROCEDURES
(A) Briefs, memoranda, or proposed findings may be filed on behalf of all interested parties only with permission from the Board or Presiding Officer, and shall be filed as directed by the Board or Presiding Officer.
(B) All such filings should be either typewritten or printed and should include a title page showing the name of the Board, the docket number and title of the proceeding, the name of the parties, the date, and the subject of the filing. All briefs should contain a subject index and a table of citations, both with page references, and shall not exceed twenty-five (25) pages in length without prior permission of the Board or Presiding Officer. Briefs must be signed by the party filing them or his or her attorney.
(C) Oral argument at the close of the hearing may be allowed or requested by the Board in appropriate cases. No new evidence will be received during such argument.
7 DE Reg. 799 (12/01/03) (Final)
1 Board member Paul R. Houck was not available for the Board=s deliberations on November 6, 2003.