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.
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:
*NOTE, however, there are two important exceptions:
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:
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.
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:
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.