TO: Department and Agency Affirmative Action and Personnel Officers

FROM: Commissioner, Virginia M. Apuzzo

SUBJECT: An Overview: Tenure, Leaves of Absence, and Reinstatements

The purpose of this memorandum is to provide information and advice on issues that are of concern to agencies and employees during this period of transition to a new administration. This memorandum is not intended to be the definitive document for the subjects discussed; it is an overview. As usual, specific questions should be directed to your Staffing Services Representative.

TENURE

Many employees are "tenured;" that is, they generally cannot be removed from their positions except for misconduct or incompetence, and they must be provided with the due processes guaranteed by law, rule or negotiated agreement. Employees who are without tenure in their positions do not have these rights.

Employees who are tenured:

• Competitive class employees who have been appointed on a permanent basis, including those appointed "contingent permanent" pursuant to Rule 4.11, and who have satisfactorily completed their probationary periods;
• Non-competitive class employees who have been appointed on a permanent basis, including those non-competitive employees appointed "contingent permanent" pursuant to Rule 4.12, who are not in positions designated by the Civil Service Commission "... as confidential or requiring the performance of functions influencing policy...", who have satisfactorily completed their probationary periods and who have the necessary continuous service to provide tenure protection pursuant to §75.1(c) and/or negotiated agreements; and
• Labor class employees who have been appointed on a permanent basis, who have satisfactorily completed their probationary periods and who have the necessary continuous service to provide tenure protection pursuant to negotiated agreements.

Employees who are without tenure*:

• Provisional and temporary employees;
• Probationers;
• Employees in exempt and unclassified service positions; and
• Non-competitive and labor class employees who do not have tenure protection pursuant to §75.1(c) of the Civil Service Law and/or negotiated agreements.
  

*NOTE, however, there are two important exceptions:

1. Some employees in reclassified positions may have tenure protection, which accrues to them as individuals, if they had such rights prior to their reclassification; and
2. Permanent employees in the classified service, regardless of jurisdictional class, who have completed probation and who meet the criteria of §75 (1) (b) (i.e., who are wartime veterans (see §85) or who are exempt volunteer firefighters (see the General Municipal Law)) have the tenure protection afforded by that section unless they hold the position of "private secretary, cashier or deputy of any official or department." Although relevant, the title assigned to a position is not controlling in determining whether a person is a "deputy" within the meaning of this section. Generally a person is a deputy if statute confers upon him or her authority to perform duties expressly vested in the principal officer, or if a statute authorizes the principal officer to delegate to him or her duties which are substantial and important, and not merely clerical or ministerial.
   
   LEAVES OF ABSENCE

The duration of leaves of absence is governed primarily by Rule 5.2. Non-discretionary leaves, and their conditions, are covered by other rules and by negotiated agreements. In addition, many employees are granted discretionary leaves for a variety of reasons, including, for example, to serve in an exempt class position or to serve in a position in another agency after the probationary period. Generally, the terms of leaves can be modified only by mutual agreement, with four major exceptions:

1. Probationers who request restoration prior to the end of their leave must be restored (Rule 4.5);
2. Employees who have been temporarily or provisionally appointed to another position in their agency must be restored upon request (Rule 4.10);
3. Contingent permanent employees who are affected by return of an incumbent must be offered restoration (Rules 4.11 and 4.12); and
4. Employees on discretionary leave to serve in another position in the State service must be restored upon request.
5. Employees who have a right to be restored and employees who are requesting restoration must give the appropriate personnel office adequate notice (usually two weeks). Employees do not have rights to be restored to a specific item. Rather, they have rights to their former title and appointment status. The appointing authority designates to which item the employee will return. Where the hold item has been moved to another geographic location (i.e., county) and the returning employee refuses to relocate, his or her name will be placed on a reemployment list provided they are otherwise eligible.

Extensions of leaves of absence may be granted by the Civil Service Commission for discretionary leaves beyond two years. Such extensions must be requested at the time of the expiration of the leave. Where a discretionary leave of absence has lapsed but the employee has continued in state service, "hold" rights may be re-established either by reinstating the employee and simultaneously granting a new leave to the position in which they have been serving, or, where the lapse is six months or less, by requesting approval for a retroactive extension of the original lapsed leave of absence.

CONTINGENT PERMANENT EMPLOYEES AFFECTED BY RETURN OF INCUMBENTS

Policy Bulletin #88-05, 1810 Contingent Permanent, issued Dec. 30, 1988, in this Manual contains detailed information on the procedures for effecting returns of incumbents.

Only one permanent incumbent may be appointed to a vacant position. All others who are appointed must be appointed "contingent" permanent pursuant to either Rule 4.11 or 4.12. The rule permits such "contingent" permanent employees themselves to be given a leave of absence. Whenever any such "contingent" permanent employee requests return to a hold item his or her seniority date must be compared with the seniority date of any other "contingent" permanent employee who also wishes to return at the same time, if any, and the seniority date of the current "contingent" permanent incumbent. Only the most senior employee can be restored, or retain his or her incumbency.

Seniority is determined pursuant to the process in §80 or §80-a, as appropriate, but because this is not a reduction in force, employees who are not able to be restored, or able to retain their incumbency have no rights to vertically "bump" or retreat. However their names will be placed on the appropriate reemployment lists.

REINSTATEMENTS

Generally, former competitive class employees may be reinstated to positions in titles they held permanently or were eligible to transfer to. Reinstatements must meet the basic criteria:

1. the reinstatement will benefit the agency;
2. the service in the former position was satisfactory; and
3. there is no reemployment list for the position.
   
   Where a leave of absence has lapsed, but the employee has continued in state service, hold rights may be reestablished by reinstatement and/or by retroactive extension of the leave, depending on the circumstances (See Leaves of Absence, above).

The reinstatement rule does not guarantee placement; it only provides eligibility. Individuals may be reinstated without examination upon nomination by the agency. They are required to serve a probationary period.

People seeking reinstatement must contact agencies in those locations where they are willing to work to determine whether there are positions available and whether the agency is interested in reinstating them.

An information sheet on reinstatements and a list of addresses of agency personnel offices is also available by calling (518) 457-5596 or (518) 474- 8865 , or by visiting one of our Career Information Centers.

Section 1830 (A) in this Manual provides more detailed information on reinstatements pursuant to Rule 5.4.

REDUCTIONS IN FORCE

Terminations of employees who are not tenured, and contingent permanent employees being affected by return of incumbents are not "layoffs." or reductions in force. Positions must be abolished before §80 or §80-a become applicable.

If positions are to be abolished, the "Guidelines for the Administration of Reductions in Force" is your primary resource.

Return to Top ^