N.Y. Comp. Codes R. & Regs. tit. 4 § 5.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 5.5 - Layoff of competitive class employees

(a) Definitions. In connection with the suspension, demotion and displacement of competitive class employees authorized by section 80 of the Civil Service Law, the following terms shall mean:

(1) Vertical bumping shall mean displacement by a permanent incumbent of another incumbent serving in a position in a title in direct line of promotion as provided in subdivision 6 of section 80 of the Civil Service Law.

(2) Retreat shall mean displacement by a permanent incumbent of another incumbent serving in a position in the title not in direct line of promotion in which the displacing incumbent served at a prior time as provided in subdivision 6 of section 80 of the Civil Service Law.

(3) Next lower occupied title shall mean the title in direct line of promotion immediately below the title from which the incumbent is suspended or demoted, unless no one serves in that title in that layoff unit, in which case it shall be the closest lower title in direct line of promotion in that layoff unit in which one or more persons do serve.

(4) Satisfactory service shall mean service by an employee during the final rating period of which he did not receive an "unsatisfactory" performance rating, and was not found guilty of misconduct or incompetency pursuant to either section 75 of the Civil Service Law or a disciplinary procedure provided by labor contract which, in either case, resulted in the imposition of any of the following penalties upon such employee:

(i) dismissal from the service;

(ii) suspension without pay for a period exceeding one month; or

(iii) demotion in grade and title.

(b) Advance decisions. An appointing authority may take such steps as it may deem necessary in order to secure binding written commitments in advance of suspension, demotion or displacement from employees potentially affected by such suspension, demotion or displacement as to their willingness to accept reassignment or displacement.

(c) Order of displacement. When two or more permanent incumbents of positions in a specific title are suspended, demoted or displaced at the same time, the order in which they shall be entitled to displace shall be determined by their respective retention standing, with those having the greater retention standing entitled to displace first. This principle shall apply to both vertical bumping and retreat.

(d) Displacement by probationers.

(1) Probationer having a right to a permanent position. An employee who is serving in a probationary term and who has a position formerly held by him on a permanent basis being held open for him has no displacement rights from the position in which he is serving the probationary term pursuant to section 80 of the Civil Service Law and is afforded none by these rules.

(2) Probationer without a right to a permanent position. An employee who is serving a probationary term and who has no position formerly held by him on a permanent basis being held open for him shall nevertheless have the possibility of displacing upon being suspended or displaced from the position wherein he is serving a probationary term; provided, however:

(i) he has previously completed at least five years of continuous service which shall also have been satisfactory service; and

(ii) he shall not be allowed to displace ahead of any permanent incumbents. The order of displacement among such probationers shall be determined by their respective retention standing, with those having the greater retention standing entitled to displace first.

(e) Refusal or failure to accept appointment to a position afforded by displacement. The refusal or failure of a person to accept appointment to a lower grade position to which he is entitled through displacement shall not affect his right to be placed on a preferred list for the position from which he was suspended, demoted or displaced.

(f) Retreat where title of position has been changed. A permanent incumbent who has been suspended or displaced shall be allowed to retreat to a position in which he last served even though the title of such position has been changed; provided, however, that there has been no substantial change in duties.

(g) Preferred list standing for competitive class employees on and after October 1, 1972 shall be as follows:

(1) On and after October 1, 1972, those employees whose positions were abolished prior to that date, and who therefore had their standing on the preferred list determined by the date of their original appointment on a permanent basis in the competitive class, shall retain among themselves such preferred list standing including the preferences to which they were entitled as blind, disabled veterans and nondisabled veterans.

(2) Blind employees whose positions are abolished on or after October 1, 1972 shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service, whether or not they are also disabled veterans or nondisabled veterans; provided, however, that the blind shall be granted absolute preference on the preferred list over all other employees except those disabled veterans and blind employees whose positions were abolished prior to October 1, 1972, with those names theirs shall be interfiled.

(3) Disabled veterans whose positions are abolished on or after October 1, 1972 shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service; provided, however, that the date of such original appointment shall be deemed to be 60 months earlier than the actual date, determined in accordance with section 30 of the General Construction Law.

(4) Nondisabled veterans whose positions are abolished on or after October 1, 1972 shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service; provided, however, that the date of such original appointment shall be deemed to be 30 months earlier than the actual date, determined in accordance with section 30 of the General Construction Law.

(5) Nonveterans whose positions are abolished on or after October 1, 1972 shall have their preferred list standing determined by the date of their original appointment on a permanent basis in the classified service.

(6) The names of all persons encompassed by paragraphs (3), (4) and (5) of this subdivision whose positions are abolished on or after October 1, 1972 shall be interfiled on the preferred list with the names of all nonveterans whose positions were abolished prior to October 1, 1972.

(h) Adjunctive opportunities. (Pursuant to the authority to provide adjunctive opportunities for displacement granted by subdivision 6 of section 80 of the Civil Service Law.) If a permanent incumbent of a position in the State service is suspended or displaced from a position in a title for which there are no lower level occupied positions in direct line of promotion, he shall displace the incumbent with the least retention right, pursuant to subdivisions 1 and 2 of section 80 of the Civil Service Law, who is serving in a position in the title with a lower salary grade in which the displacing incumbent last served on a permanent basis prior to service in one or more positions in the title from which he is suspended or displaced, if:

(1) the service of the displacing incumbent while in such former title was satisfactory; and

(2) the position of the junior incumbent is in:

(i) the competitive, noncompetitive or labor class;

(ii) the layoff unit from which the displacing incumbent was suspended or displaced; and

(iii) a lower salary grade than the position from which the displacing incumbent is suspended or displaced; provided, however, that no incumbent shall displace any other incumbent having greater retention standing.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 5.5