Questions and Answers
Article V, section 6 of the State Constitution requires that appointments to the classified service of the State be "made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive..." This merit and fitness clause is the underlying principle for the appointment and promotion of employees in the classified service of the State. The Civil Service Law, Rules and Regulations implement this constitutional mandate.
The Department of Civil Service and the State Civil Service Commission exercise authority over the classified service of the State. While many people make no distinction between the Department and Commission, each maintains its own independent identity and functions. General authority and responsibility for the administration of the Civil Service Law is vested in the Department. The Commission is vested with broad merit system oversight responsibilities for both State and local government.
- elective offices;
- offices filled by election or appointment of the legislature on joint ballot;
- legislative officers and employees;
- department heads;
- certain officers and employees appointed by the Governor;
- officers, members and employees of boards of elections;
- the largest group, teachers and supervisory personnel in the public schools, the State University, and certain community colleges.
The remaining positions fall within the classified service and are divided into four distinct classes, namely:
Together, they comprise the four jurisdictional classes of the classified service.
By law, all positions in the classified service are automatically in the competitive class unless the State Civil Service Commission takes action to place them in the exempt, non-competitive, or labor class. Agencies may petition the Commission to place existing positions, new positions, within the exempt, non-competitive, or labor class. Upon a Commission determination that competitive examination is not practicable, positions are classified as other than competitive and can then be filled outside of the competitive examination process. Keep in mind that the jurisdictional classification review process generally takes at least one month and requires justification by the HR office in your agency. Agencies requesting an expedited review should contact the Office of Commission Operations.
No. The Constitution requires appointments be made by competitive examination, to the extent practicable. In recognition that competitive examination may not always be practicable, the Legislature carved out a number of exceptions and created the four distinct jurisdictional classes, each having a separate yet equally valid test of merit and fitness. How merit and fitness is measured and how appointments are made, will depend upon the jurisdictional classification of the position. Only those positions in the competitive class are subject to competitive examination. The remaining three jurisdictional classes generally afford agencies broader powers of selection, subject to certain protocols, as discussed below.
The non-competitive class consists of those positions for which competitive examinations are not practicable. For positions in the non-competitive class, merit and fitness is ensured through such educational, experience, and other qualification requirements as may be fixed by the Department of Civil Service. Appointments may be made quickly to such positions by the appointing authority exercising its power of selection, subject to certain protocols as discussed below. The non-competitive class consists primarily of skilled trade positions. It may also include certain positions of a high level administrative, scientific, or technical character involving a confidential relationship between the incumbent and appointing authority, or one which requires the performance of policy influencing functions. In such cases, the Civil Service Commission establishes such positions in the non-competitive class with a "phi" designation. These positions are commonly referred to as "phi-tagged," "non-competitive phi," or "NC-phi" and are set forth in the rules with the symbol "��." Incumbents of non-competitive phi positions serve at the pleasure of the appointing authority. The non-competitive class also includes entry level positions normally filled by the competitive process but designated non-competitive for the purpose of hiring workers with disabilities under sections 55-b and veterans' with disabilities 55-c of the Civil Service Law (see below for discussion on this topic).
Agencies also have the power of selection, subject to certain protocols discussed below, for exempt class positions. The difference between the exempt and non-competitive classes is that for positions in the exempt class, the appointing authority, rather than the Department of Civil Service, determines merit and fitness by setting any educational, experience or qualification requirements for the position and has the discretion to appoint from among those meeting those qualifications. The exempt class includes one secretary of each department, temporary state commission, or other State officer authorized by law to appoint a secretary: deputies authorized to act for department heads; and any other subordinate positions for which competitive or non-competitive examination is found to be not practicable.
Positions in the labor class involve unskilled labor, with no minimum qualifications, although applicants may be required to demonstrate their ability to do the job through qualifying (pass-fail) tests. There are no eligible lists for these jobs. The appointing authority has the discretion in making appointments to these positions without additional competitive tests of merit and fitness.
Unlike jurisdictional classification by the State Civil Service Commission, the Director of the Division of Classification and Compensation makes determinations on position classification. This involves analyzing the duties of proposed jobs and determining the appropriate title and allocation of positions in the classified service of the State. An agency or appointing authority can submit a request to the Division of Classification and Compensation to classify or reclassify a position to an existing title or propose a new title. Such positions may be permanent, temporary, or seasonal. If the title proposed is new, the agency or appointing authority must present justification for a particular salary grade. Establishment of a new title will require justification and may take several months to accomplish. Some classification actions have been decentralized to agencies and appointing authorities and may be streamlined or reviewed in a post review process. Decisions on both position and jurisdictional classifications must occur before a position is established and an appointment is made. The role of the Director of Classification and Compensation is further discussed below under various Salary Mechanisms.
Yes. By memorandum from the Executive Chamber issued in May 2008, to all Agency and Authority Executive Deputies, agencies were reminded that certain positions classified as non-competitive or temporary are covered by the same recruitment and hiring protocols as exempt class positions. This memorandum specifically governed those instances where agencies were seeking candidates to fill pending or existing non-competitive phi positions; temporary positions for project assistant items established through the Department of Civil Service; and hourly workers whose pay rates exceed $20 per hour. Therefore, when recruiting and hiring for all such positions, agency executives must consult with the Governor's Appointments Office and the Division of the Budget for their assistance and approval. Please refer to the May 2008 Executive Chamber memorandum for a detailed explanation of the appropriate protocols to follow in recruiting and hiring for the specified positions. Again, agencies are reminded of the July 30, 2008 hiring freeze referenced previously.
With certain exceptions, exempt class employees serve at the pleasure of the appointing authorityand may be removed "at-will." Therefore, they do not have tenure protection. As discussed above, incumbents of non-competitive phi positions also serve at the pleasure of the appointing authority, and, with certain exceptions, do not have tenure protection. The exceptions are for permanent, exempt and non-competitive phi employees who are veterans or exempt volunteer firefighters, and who are not deputies. Recommendations or decisions to terminate staff should be reviewed by your HR office before any final decision is made.
In contrast, Civil Service Law section 75(1) grants tenure protection to permanent competitive class employees who have completed probation and to employees serving in non-competitive class positions which have not been designated phi, provided that they have completed five years of continuous service in the non-competitive class since last entry into State service. (This has been modified to one year of continuous service by certain negotiated contracts. Security contracts however, do not have the one year clause and incumbents in such non-competitive positions must complete five years of continuous service in accordance with Civil Service Law section 75). Collective bargaining agreements have also extended tenure to permanent labor class employees who have completed one year of continuous service in the classified service.
Every permanent appointment to a position in the classified service, regardless of jurisdictional class, requires satisfactory completion of a probationary period (in some cases, the probationary period may be waived at the discretion of the appointing authority). Generally, a probationary employee cannot be removed prior to completion of the minimum probationary period (usually eight weeks), except under the disciplinary provisions of the Civil Service Law or the relevant negotiated contract. After the minimum probationary period, a probationer's service may be terminated for unsatisfactory conduct or performance. The Rules of the Classified Service indicate that a probationer should be advised about his/her status and progress periodically during the probationary period. After the minimum probationary period, a probationer's service may be terminated for unsatisfactory conduct or performance. The Civil Service Rules entitle a probationer who is to be terminated for unsatisfactory service to receive written notice at least one week prior to such termination; the probationer may request and receive an interview with the appointing authority or his or her representative. However, since tenure is a right not conferred upon exempt or non-competitive phi employees, such individuals may be dismissed at any time.
Pursuant to Rule 5.2(b) of the Rules for the Classified Service, you have the flexibility and discretion to grant an employee a "leave of absence," for a variety of reasons for a period of up to two years, upon attestation that the leave is in the best interests of the State. Contrary to most traditional forms of leave, employees granted a leave in accordance with this rule often remain in active working status. This Rule permits an agency to protect the status of a permanent tenured employee upon appointment or promotion to a non-tenured position (exempt or non-competitive phi positions). Again, filling these positions must be subject to the protocols set forth in the May 2008 Executive Chamber memorandum. By virtue of this leave, the employee will have a "hold item" and retain the right to return to the tenured position at a later date. Civil Service Commission approval must be obtained to extend the leave of absence for subsequent periods, not to exceed two years. You should consult with your HR office to submit leaves directly to the Commission. Subsequent to each monthly meeting, the Commission submits a report to State Operations reflecting each agency's request, the a titles to and from which an employee is on leave, and the action taken by the Commission.
No. The majority of classified positions are in the competitive class and filled from eligible list candidates who have passed competitive examinations. (You should consult with your HR Office to determine whether a reemployment eligible list, a promotion eligible list, or other lists must first be used.) In contemplation that competitive testing is not and should not be the sole mechanism for assessing merit and fitness, the Legislature crafted a variety of options to provide managerial flexibility in selecting qualified employees. This means that alternative appointment mechanisms, including transfers and reinstatements are available, and assuming that specific criteria are met, may be used in lieu of certain eligible lists. The flexibility afforded by alternative mechanisms is essential to the successful implementation of the merit system. Additionally, if there is no eligible list for the title in the location of the position, a provisional appointment may be made (see below for discussion on this topic). In order to qualify for a provisional appointment, a candidate must meet the minimum qualifications for the position.
There are many dedicated and skilled permanent employees currently working in my agency and other State agencies. What specific transfer options are available to provide lateral mobility and changes in career paths for these employees so that they do not have to begin at the entry-level?
There may be a number of transfer possibilities to titles within your agency and between agencies, which will enable you to broaden the pool of candidates for certain positions. Transfer is defined as a permanent change in title or appointing authority, usually without further examination. Transfers between positions are consistent with the constitutional mandate of merit and fitness where similarity in essential tests, qualifications, or duties of positions renders it "impracticable" to require additional examination for appointment from one position to another. Transfers serve management's interests by providing reasonable alternative sources of qualified eligibles, and employees' interests by providing opportunities to change titles and/or relocate within their own agency or other agencies. A transfer is an equally valid method of filling a vacancy as an appointment from an eligible list. Your HR office can advise you when the conditions are met which allow for the following transfers:
Section 52(6) of the Civil Service Law permits transfers between "administrative positions" as that term is specifically defined in that section of law. Such transfers are limited to two salary grades, or one "M" grade.
Section 70(1) of the Civil Service Law provides that a competitive class position may be filled by transfer, as long as the essential tests or qualifications for the two positions are equivalent or similar. Salary grades of the positions must also be similar (two salary grades or one "M" grade).
Section 70(4) of the Civil Service Law allows transfer of a nominee who meets the examination minimum qualifications for the target position (these transfers are reserved to open-competitive situations). If the nominee hasn't passed a comparable examination, we will administer the exam to the nominee. As with all transfers, the salary grades of the positions must be similar (two salary grades or one "M" grade).
All transfer mechanisms require adherence to certain conditions and have certain limitations. The HR office in your agency should be contacted to determine if a transfer is appropriate. You may also be able to provide opportunities for your lower level staff to "transition" into professional positions. Transition examinations provide qualified candidates an opportunity to compete in an examination for advancement from clerical/secretarial/para-professional positions to professional level jobs. Often, appointees must serve a traineeship before advancement to the journey level job. Our most widely used transition examination is the Public Administration Traineeship Transition (PATT) which permits advancement into administrative and program traineeships.
There are also many talented and knowledgeable individuals who are currently employed outside the classified service of the State, whether in municipal government or the private sector. How can I bring these individuals into various skilled and managerial positions in my agency and extend them tenure protection?
Subject to the protocols set forth in the May 2008 Executive Chamber memorandum, you may make appointments to any vacant exempt or non-competitive phi positions or request the classification of new positions in the exempt or non-competitive class. As previously noted, employees in exempt and non-competitive phi positions serve at the pleasure of the appointing authority and do not acquire tenure protection, with certain exceptions for veterans and exempt volunteer firefighters. You should encourage such employees to take any and all examinations for which they are qualified for classified positions in the State service. If they are reachable on an eligible list, they may be appointed to a classified position within your agency and immediately granted a leave of absence as discussed above, to serve in the exempt or non-competitive phi position. As previously noted, this gives them a "hold" on the competitive class position to which they are eligible to return. Also keep in mind that subject to the protocols set forth in the May 2008 Executive Chamber memorandum, exempt class or non-competitive phi employees may be appointed to any other exempt or non-competitive phi positions for which they qualify.
I need to bring in my own administrative support staff as well as hire additional professional and executive staff who reflect my vision for the agency and in whom I have trust and confidence. How can I do that?
As noted above, the exempt and non-competitive phi classifications afford greater flexibility in the appointment process, subject to the protocols set forth in the May 2008 Executive Chamber memorandum. Each agency generally has exempt and/or non-competitive "phi" Secretary, Special Assistant, or Confidential Assistant positions. These positions can be filled to provide you with direct administrative support. Also, there may be additional exempt class and non-competitive phi deputy and counsel positions in each agency. Again, as with the administrative positions, subject to the aforementioned protocols, you may appoint any qualified individual to any existing exempt or non-competitive phi positions in your agency or request the classification of new positions. With appropriate justification and approval from the Division of Classification and Compensation and the Civil Service Commission, agencies may establish additional exempt or non-competitive phi positions. The existing exempt and non-competitive class phi positions in each agency are listed in the appendices to the Civil Service Rules at 4 N.Y.C.R.R. As with employees from outside State service, you should also encourage such employees to take examinations for which they are qualified to obtain a "hold item" to which they will be eligible to return.
Yes, with some caveats. It is a recognized management right to deploy and assign staff according to program needs. Reassignment is defined as the movement of an employee between organizational units or geographical locations with no change in title. An appointing authority has wide discretion in assigning and reassigning staff as long as it does not violate out-of-title work prohibitions or agency specific agreements with the public employee unions. Deployment of staff should be discussed with your HR office before any final decisions are made. While both transfers and reassignment involve the movement of current staff, reassignment refers to a change, without further examination of a permanent employee, from one position to a position in the same title under the jurisdiction of the same appointing authority. You have the flexibility to reassign employees to address workforce priorities in certain divisions in your agency or to specific geographic locations, consistent with the terms of any applicable negotiated agreement. Your HR staff can effect a NYSTEP transaction to change the geographic location of an employee or a position from one location to another. Such transactions are automatically approved by the Division of Classification and Compensation (i.e., a "pass-through transaction") and require DOB approval before taking effect on NYSTEP. Note that an employee may refuse a reassignment to a location outside of the county in which they accepted employment. Depending on the status of the employee, certain steps may need to be taken. Your HR office can assist you in facilitating the reassignment and dealing with related issues.
You can make a non-competitive promotion under section 52(7) of the Civil Service Law to a competitive class position if there are fewer than three eligible candidates for promotion to a title. If there is no technical test component to the promotion examination for that title, the non-competitive examination consists solely of a review of minimum qualifications. If there is a technical test, the nominee must take and pass a specially arranged technical test to be eligible for the non-competitive promotion. You may also make a provisional appointment of any qualified candidate. In most large position classes, a provisional appointment will be your only option for appointments.
Section 41(2) of the Civil Service Law provides that upon the occurrence of a vacancy in any position in the exempt class, the Civil Service Commission shall study and evaluate the position and, within four months after the occurrence of the vacancy, determine whether the position is properly classified in the exempt class. Pending such determination, the position can only be filled on a temporary basis. Therefore, exempt class employees may only be appointed to an exempt class position on a temporary basis while the Commission conducts its statutory review of the position.
Regardless of status, permanent or temporary, employees in exempt class positions serve at the pleasure of the appointing authority, with the exception of certain veterans and exempt volunteer firefighters.
There are generally three types of appointments that are authorized by the Civil Service Law, namely:
Permanent appointments may be made to any position, regardless of jurisdictional class. Exempt class and NC-phi employees do not obtain tenure, even upon receipt of a permanent appointment, except as discussed above. Permanent appointments to the competitive class can occur via appropriate lists, transfers, reinstatements, and non-competitive promotions. Permanent appointments can also be granted contingently in both the competitive and non-competitive class to positions which are being "held" by permanent incumbents. These appointees might be displaced and placed on a preferred list if the permanent incumbent returns and there is no vacancy to accommodate the individual.
Provisional appointments are authorized by Civil Service Law section 65 when there is no "mandatory" eligible list (list containing the names of three or more people willing to accept appointment). Once a mandatory list is established, the provisional appointment must be revoked within sixty days. While provisional appointees are not subject to probationary terms, they are generally limited to a period of nine months (or until the establishment of an eligible list for the title), with no possibility of ripening into a permanent appointment. Further, these appointees are not entitled to tenure protection. However, they are a useful tool because they can be used as a "stop-gap" measure to allow for the appointment of a qualified person pending examination and establishment of a viable eligible list.
Temporary appointments are authorized for all jurisdictional classes under Civil Service Law section 64, generally for a period not exceeding three months. (For example, temporary appointments may be made pending the canvass of an eligible list and subsequent permanent appointment from such list; under certain emergency situations such as short term effects of a natural disaster; and pending Civil Service Commission action on certain requests, such as appointments under CSL section 55 b/c and to exempt class positions pending review of jurisdictional classification.) However, there are certain exceptions, such as backfilling where a permanent incumbent is on leave (rather than contingent permanent appointment); for appointments to positions not expected to be in existence for more than six months; for a period not to exceed one year when a planned reduction of workforce is imminent and a permanent appointee faces layoff; and in connection with "temporary project positions" in the competitive class, as discussed in further detail below. Temporary appointees are also not entitled to tenure protection. As noted above, certain temporary appointments are subject to the approval of outside control agencies. Therefore, you must first follow the protocols set forth in the above-mentioned May 2008 Executive Chamber memorandum before making such an appointment.
As noted above, section 64(3) of the Civil Service Law allows for temporary appointments without examination in exceptional cases. These are referred to as "temporary project positions." Temporary project positions are established where the individual is to provide professional, scientific, technical or other expert services in a temporary position established to conduct a special study or project for a period not exceeding 18 months.
These appointments are authorized to competitive class positions where, because of the nature of the services to be rendered and the temporary or occasional nature of the services, it would be impracticable to hold an examination of any kind. Since these types of appointments are specifically covered by the May 2008 Executive Chamber memorandum, you must first consult and coordinate with the above-mentioned control agencies before you select a candidate for appointment. Upon their approval, to request such a position, your HR office needs to submit a justification letter which sets forth the nature of the project, the date by which the project is to be completed, what is expected to be completed and the time line for activities and deliverables, a duties description and an organizational chart to your agency Classification and Pay Analyst. Where it can be justified because of the extension of the project, temporary project positions may be extended for an additional eighteen months. You should begin working on establishing and selecting candidates as soon as possible, since the coordination of various oversight entities may impact how quickly these positions are established.
Your HR office should submit a justification letter, duties description and organizational chart to your respective Classification and Pay Analyst, to classify new positions in your agency. Your HR office should also submit a request to the State Civil Service Commission for jurisdictional classification outside of the competitive class, if applicable, including a justification for your request. You should also advise Commission staff of your need for an expedited review. The process to establish positions can be lengthy, depending on the level and title of positions. Again, keep in mind that certain temporary positions as well as exempt and non-competitive phi positions are subject to the selection and hiring protocols as set forth in the May 2008 Executive Chamber memorandum. Further, all hiring is subject to the limitations of the July 30, 2008 hiring freeze.
I have an employee who will be leaving in a few months. For succession planning purposes, I need to bring another person in now to work with that person and eventually replace him or her. How can I do that?
The Division of Classification and Compensation will generally create a temporary, duplicate position to allow for the smooth transition of staff, the transfer of critical knowledge or to maintain current levels of work. Such shadow positions may generally be created six months before the permanent incumbent is scheduled to retire or leave. To request a duplicate position, your HR office must submit a letter of justification, a duties description, and an organizational chart to your Classification and Pay Analyst.
There are a number of selection tools available to recruit temporary and permanent staff; some of these tools are specifically designed for situations where there are recruitment difficulties. [Your HR office should discuss recruitment difficulties with your assigned Staffing Services Representative.]
Continuous Recruitment Examinations may be used where there are shortages of qualified candidates. There is no "close of filing" date to file for the examination as there is for most competitive examinations. The Department of Civil Service, or the agency when it has been decentralized by the Department to the agency, collects applications continuously and tests candidates regularly. Successful candidates are added to the eligible list and typically have one to two years of eligibility on the list.
Open-End Examinations are a type of continuous recruitment examination. Open-end exams are appropriate where there is a short-term recruitment difficulty or where continuing vacancies are not anticipated (i.e., for a small-position class). Applications are accepted and tests administered for the term of the exam (typically one year) or until there are sufficient eligibles to satisfy recruitment needs.
Spot Recruitment Examinations are appropriate where there are hard-to-fill positions in a particular location/region, but sufficient numbers of candidates in other areas. The resulting eligible list may be used only in the location/region as announced (though testing may be conducted Statewide).
Non-competitive open-competitive exams are authorized in certain circumstances under section 4.2(b) of the Rules for the Classified Service. These "4.2(b) exams" may be appropriate where an open-competitive examination has not resulted in a sufficient number of eligibles on an eligible list to fill the number of vacancies. Typically, an agency nominates candidates to whom the Department of Civil Service administers the test. Nominations are accepted within one year of the date of the original examination. (There are certain policy limitations, i.e., a nominee may not have taken and failed the regular holding of the examination.)
You also may be able to offer Reimbursement of Moving Expenses to prospective employees. The State Finance Law provides this reimbursement if there is a shortage of qualified candidates for a particular title. The Department of Civil Service must certify that a position is hard to fill in order for you to offer this benefit if the position is in the competitive class. The Division of the Budget and/or the Governor's Appointments Office may provide a recommendation as to whether moving expenses are warranted for other jobs.
There are provisions in the State Retirement and Social Security Law (RSSL) governing the reemployment of retirees who are earning a pension from the State or a local retirement system. A request to reemploy a retiree must indicate that the retired person is duly qualified, competent and physically fit to perform the duties of the position in which he or she is to be employed; that there is need for his or her services; that there are not readily available for recruitment other qualified persons if he or she is to earn more than $1,000, and that his or her employment is in the best interest of the government service.
Under section 212 of the RSSL, a retiree may be employed in the public service without diminution or suspension of his or her retirement allowance provided he or she does not earn more than $30,000 in a calendar year. (Since this statutory amount may change, please contact your HR office for the most current information.) Such individual must file a statement with the retirement system from which he or she is receiving a retirement allowance, in accordance with such section. On or after the calendar year in which an individual attains age 65, there is no limit on earnings, even if he or she is returning to the same employer. An appointee must meet all qualifications for the position to which he or she is being appointed. If such retiree is to earn more than the $30,000 threshold, a waiver pursuant to section 211 of the RSSL is required as described below. Under section 211 of the RSSL, upon demonstrating satisfaction of the statutory criteria, agencies may rehire a retired person who may earn compensation in a public service position without effect on his or her status as a retiree and without suspension or diminution of his or her retirement allowance, upon approval by the Civil Service Commission, provided that the employer is not the same employer from which the person retired. For purposes of approvals under such section of law, New York State is considered to be one employer. If however, the service is with the same employer from which the person retired, the post retirement earnings will be limited by the formula contained in RSSL section 211 (1)(a). Therefore, retired State employees returning to their former agency or another State agency will be subject to a cap on his or her earnings. The retiree's retirement system will calculate the earnings limitations. You should refer any questions regarding the calculation of earning limitations to the retiree's retirement system. It is important to note that retirees who do not receive approval under RSSL section 211 but who are otherwise eligible for appointment may still continue their government service by suspending their retirement benefits and rejoining the retirement system as active members.
NOTE: Retirees who accepted the terms and conditions of the 2009 Voluntary Severance Program agreed not to be reemployed by the State of New York for a period of five years after the effective date of their voluntary resignation. If they are reemployed by the State at any time before five years after their voluntary resignation date has elapsed, they are required to refund, in full, the voluntary severance program payment.
Within one year of resignation, you can restore a former permanent employee to his or her previous position, or to a position to which he or she was eligible to transfer, without examination. Alternatively, you can reinstate individuals to any vacant position for which they were eligible to transfer at the time of resignation. In accordance with Rule 5.4 of the Rules of the Classified Service, reinstatements after one year must be approved by the State Civil Service Commission, upon demonstration of "good cause shown and where the interest of government would be served." While reinstatements may be made even if there is an eligible list, they are not permitted where preferred or mandatory reemployment lists exist.
There are many qualified individuals with both physical and mental disabilities whose services would be of great value to our workforce. Is there a program which would enable us to attract disabled workers and provide them with opportunities for advancement?
The Workers with Disabilities Program may provide you with a pool of qualified candidates. Civil Service Law Section 55-b authorizes the Civil Service Commission to designate up to twelve hundred entry level competitive class positions to be filled by qualified persons with physical or mental disabilities. Section 55-c authorizes the Commission to designate up to five hundred entry level competitive titles to be filled by qualified disabled veterans or veterans with disabilities. Upon such a designation, the positions are classified in the non-competitive class. Because these positions are in the non-competitive class, nominees need not take a competitive examination or be reachable on an eligible list for appointment. However, candidates must meet the minimum qualifications established for the position. These positions automatically revert to the competitive class upon vacancy by the incumbent. Persons employed through either section are provided the same opportunity to take promotion examinations as provided to employees serving in the same titles in the competitive class. This program allows the agency additional flexibility in hiring.
We have some large position classes at lower salary grades in the non-competitive (or labor) class. Are there any opportunities for advancement into the competitive class for employees in these positions?
Section 52(11) of the Civil Service Law provides employees in non-competitive and/or labor class positions with the same opportunity to take promotion examinations as employees in competitive class positions. In this situation, the law requires that the promotion examination be held in conjunction with an open-competitive examination. However, there are a variety of factors to balance when determining whether examination under section 52(11) is warranted. For example, since the law requires the exhaustion of the resulting promotion list first, it is not always fiscally prudent to hold an open competitive examination where there is a potentially large promotion field of candidates. Therefore, the opportunity for examination under section 52(11) may not generally be available under these circumstances.
If the position is non-statutory, you may request a compensation adjustment from the Division of the Budget (DOB). This allows for an increase in the dollar amount and/or salary range or equated salary range of the position. If the position is allocated to a grade, there is no mechanism for paying an employee a salary greater than the top of that range (i.e., the Job Rate). (See below regarding additional salary within a grade range).
If the position is non-statutory, you may request a compensation adjustment from DOB. This allows for an increase in the dollar amount and/or salary range or equated salary range of the position. If the position is allocated to a grade, there is no mechanism for adjusting the salary of an existing employee within that range except for the normal performance advance increments received once per year.
I have a very experienced candidate whom I would like to hire for a position. Can I pay him or her more than the hiring rate established for the position?
Possibly. Under section 131(1a) of the Civil Service Law, an appointment above the minimum hiring salary is permitted in certain cases where the newly hired employee to the State service has training or experience in a field which substantially exceeds the minimum requirements necessary for appointment. However, the hiring salary may not exceed the job rate of the salary grade of the position to which the person is to be appointed. To request such an increase your HR office should submit a request to your Classification and Pay Analyst, including evidence, such as a resume or employment application, which demonstrates that the candidate possesses qualifications which substantially exceed the minimum qualifications for the position and that other candidates with such qualifications will not accept the position for the hiring rate. Requests may impact the salary of other staff; therefore, this option should be reviewed with your HR office prior to any offer of employment.
Yes. Current State policy is that employees who are in positions allocated to Grade 22 or below are eligible to receive overtime pay. Positions allocated to Grade 23 or above are not overtime eligible. In extraordinary circumstances, you may request an overtime waiver from DOB to pay overtime to otherwise ineligible Grade 23 employees for a special project. For exempt positions, you must also submit a request to DOB.
NOTE: In certain circumstances the State may suspend the authorization of overtime.
I have an office in a downstate location for which it is difficult to hire and retain staff. How can I increase the salary for this location to increase my ability to recruit and retain staff?
Section 130(4) of the Civil Service Law allows for the Director of the Division of Classification and Compensation to provide for an increase in the minimum hiring salary of a class of positions (i.e., an "Increased Hiring Salary") where it is determined that it is impracticable to recruit for positions in that title at the hiring rate of the salary grade to which the positions are allocated in one or all areas or locations of the State. To request such an Increased Hiring Salary, your HR office should send a request, including detailed information and documentation to your Classification and Pay Analyst. This process can be lengthy and should not be viewed as a short term solution. You must include the following information:
- Documentation of recruitment difficulty for the class
- Documentation of recruitment difficulty in a geographic area
- Documentation of recruitment efforts made by the agency
- Eligible list information (i.e., age of list, eligibles in the area)
- Vacancy and turnover data regarding the class
- Salaries offered for similar positions by other employers in the same location and geographic area
Also, section 130(7) of the Civil Service Law allows the Director of the Division of Classification and Compensation to provide a "Geographic Pay Differential" to employees in one or more areas of the State, where private or other non-State employers in such areas pay substantially higher wage rates for a similar occupation. This Differential adds additional money on top of base salaries. To request a Geographic Pay Differential, your HR office should send a request, including detailed information and documentation to your Classification and Pay Analyst. You must include the following information:
- Documentation of recruitment difficulty for the class
- Documentation of recruitment difficulty in the geographic area
- Documentation of recruitment efforts made by the agency
- Eligible list information (i.e., age of list, eligible candidates in the area)
- Vacancy and turnover data regarding the class
- Salaries offered for similar positions by other employers in the same geographic area
You may also consider using Section 131(1a) of the Civil Service Law, which allows for appointment above the minimum hiring salary in certain cases for newly hired employees into the State service whose training or experience in a field substantially exceeds the minimum requirements necessary for appointment. (See discussion above).
Agencies may send requests, in writing, to the Director of Classification and Compensation asking that the original determination be reconsidered. Such requests must be sent no later than 30 days after the initial determination has been received and should include new and/or additional material that support the classification action requested by your agency.
Should your request for reconsideration be denied by the Director of Classification and Compensation, you may appeal such determination, no later than 60 days after the final determination has been received, to the Civil Service Commission under Civil Service Law section 120(2). Appeals to the Commission will be placed on the official calendar and you and members of your staff will be invited to appear before the Commission to present evidence in support of your request. The Director of Classification and Compensation and his or her staff will also appear before the Commission to address any questions they may have regarding your appeal. Arrangements to appear before the Commission are made by Commission staff.
You HR office should submit a request, including a justification letter, duties description, and organizational chart to your respective Classification and Pay Analyst or Commission staff via NYSTEP. Earmarks may be either continued, removed, or they may be temporarily stayed and then continued after a new incumbent is appointed to the position (i.e., a "Fill and Continue" action). Staff will review your submission and work with your HR staff to make a determination on the release of the earmark, or in the case of Commission earmarks, to request removal by the Commission. Keep in mind that the complexity and ultimate success of the removal request may vary depending upon why the earmark was placed in the initial instance. Requests to remove earmarks placed by DOB should also be directed by your HR office to your agency's line examiner at DOB.
Many temporary items, such as positions in clerical or program-specific titles, can be extended on the CC-X10 Temporary Position Extension form on NYSTEP. The extension of items on this form is automatically approved by C & C (i.e., a "pass-through" transaction") and requires DOB approval before taking effect on NYSTEP.
Project Assistant, Project Director, and/or Project Coordinator positions can be extended on NYSTEP by submitting a transaction (4R 13) requesting the extension. Your HR office should submit a justification letter, duties description, organization chart, and a revised/updated time-line of activities/deliverables to your respective Classification and Pay Analyst. These extensions should be requested at least 30 days before the position is set to expire; this will give your Classification and Pay Analyst sufficient time to review the request and take appropriate action. Agency delays in requesting a timely extension may cause adverse effects for the incumbent employee, such as receiving a late paycheck or having a paycheck withheld by the Office of the State Comptroller, Division of Payroll.
Typically, requests for new positions must be approved by both C&C and DOB. C&C, however, may allow for certain transactions to automatically "pass through" to DOB for their fiscal review and approval; typically, these are requests to move a position from one geographic area of the State to another; requests to extend temporary positions on the CC-X10 Temporary Position Extension form; and/or requests to establish entry-level positions such as a Clerk 1, Grade 6.
Yes. CSL Section 120 affords employees the opportunity to request the reclassification of their position by submitting an "Employee Application for Change in Title or Salary" Form (colloquially referred to as a CC-2E form) to the Director of the Division of Classification and Compensation. Classification and Compensation staff will request that the agency HR office review the request and comment on its accuracy and any impact that approval might have on other positions in the agency.
The Public Employees Fair Employment Act (also known as the Taylor Law), provides that employees in certain positions are excluded from the right to belong to an employee organization for the purpose of negotiating terms and conditions of employment. Such employees are excluded when it is found that their position is either Managerial or Confidential as defined in Section 201.7(a) of the Civil Service Law.
Employees meet the Managerial Designation criteria if they:
- Participate at the highest-levels of your agency in the formulation of policy
- Participate in collective bargaining negotiations
- Play a major role in the administration of negotiated agreements
- Play a major role in personnel administration
Employees meet the Confidential Designation criteria only if they work in a confidential capacity to managerial individuals in the personnel or labor relations areas above and not to those who formulate policy. Such individuals must have regular access and exposure to information related to personnel matters and contract negotiations and administration.
The Bargaining Unit of a filled position can only be changed as a result of the formal challenge process occurring at the end of each State employee contract. Contact your HR office for additional guidance.
The Labor-Management agreements with all of the State's Labor Unions (e.g. CSEA, PS&T, NYSCOPBA, etc.) give employees the right to grieve the performance of out-of-title work.
If the nature of the employee's new assignment is within the scope of duties appropriate to the employee's title then there is no out-of-title work. For example, a Clerk 1, G-6, assigned to open and distribute mail may be assigned to maintain inventory, maintenance, and/or other records for an agency. All of these tasks are described in the Classification Standard for a Clerk 1, G-6. If a Clerk 1, G-6, were assigned to monitor the health of fish and provide treatments to fish at a DEC Fish Hatchery, then that would constitute out-of-title work as such an assignment would be appropriate to a Fish Culturist 1, G-11.