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Discipline/Denial/Rejection and Working Out of Class

What is an Adverse Action?

An adverse action is a disciplinary action taken against a state employee for any violation of Government Code section 19572.

Causes for an Adverse Action:

19572. — Each of the following constitutes cause for discipline of an employee whose name appears on an employment list:

a. Fraud in securing appointment.
b. Incompetency.
c. Inefficiency.
d. Inexcusable neglect of duty.
e. Insubordination.
f. Dishonesty.
g. Drunkenness on duty.
h. Intemperance.
i. Addiction to the use of controlled substances.
j. Inexcusable absence without leave.
k. Conviction of a felony or conviction of a misdemeanor involving moral turpitude.  A plea or verdict of guilty or a conviction following a plea of nolo contendere to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.
l. Immorality.
m. Discourteous treatment of the public or other employees.
n. Improper political activity.
o. Willful disobedience.
p. Misuse of state property.
q. Violation of this part or board rule.
r. Violation of the prohibitions set forth in accordance with Section 19990.
s. Refusal to take and subscribe any oath or affirmation which is required by law in connection with the employment.
t. Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person’s employment.
u. Any negligence, recklessness, or intentional act which results in the death of a patient of a state hospital serving the mentally disabled or the developmentally disabled.
v. The use during duty hours, for training or target practice, of any material which is not authorized by the appointing power.
w. Unlawful discrimination, including harassment, on the basis of race, religious creed, color, national origin, ancestry, physical handicap, marital status, sex or age against the public or other
employees while acting in the capacity of a state employee.

Types of Adverse Actions:

Official reprimand – suspension without pay – reduction of pay within the salary range for the class – demotion to a lower class – dismissal from state service.

What to Do if You Receive an Adverse Action:

Step 1 – Immediately contact the CASE Office. Be aware that there are strict time lines that must be followed in order to file an appeal.
Step 2 – Discuss with a CASE representative the action that has been taken and whether to file an appeal with the State Personnel Board (SPB).
Step 3 – After discussing the action with a CASE representative, decide whether to proceed with the Skelly hearing. 

The Skelly Hearing, the Right to Respond to Proposed Action

a. Prior to any adverse action, the appointing power or authorized representative of the appointing power shall give the employee written notice of the proposed action. This notice shall be given to the employee at least five working days prior to the effective date of the proposed action and shall include:

  1. the reasons for such action
  2. a copy of the proposed charges
  3. a copy of all materials the appointing power considered in proposing the action
  4. notice of the employee’s right to be represented in all adverse action, rejection during probationary period or medical transfer, demotion or termination proceedings and
  5. notice of the employee’s right to respond to the appointing power proposing the action prior to the effective date of the proposed action. Such response shall either be verbal or in writing (Skelly hearing).

b. The person whom the employee is to respond to in subsection (a)(5) shall not have been involved in taking the proposed adverse action and shall be at the same or higher level in the organization as the person proposing the action.
c. The procedure specified in this section shall apply only to the final notice of proposed action.

Employee’s Right to Appeal Adverse Actions

Appeals of adverse actions are made directly to the SPB. When an appeal is filed, the hearings before a hearing officer appointed by the board are generally attended only by actual witnesses to the actions and possibly one representative of management. The legal representative handling the case usually specifies who will be needed at the hearing. Following the hearing, the hearing officer prepares a decision and submits it to SPB members for approval. They generally approve the decision as submitted, but they may revise the decision, assign the case to the same or another authorized representative to take additional evidence or conduct a hearing themselves. SPB also may modify or cancel the action entirely. If the action is modified or revoked, the employee must be paid for such a period of time as the adverse action was improperly in effect. Conditions of payment are contained in section 19584 of the government code.

If you have been the subject of an adverse action, contact the CASE Office at 1-800-699-6533.

Investigative Interviews

Weingarten Rights

An employee is entitled to have a Union representative present during any interview which may result in discipline.

  1. You must request that a Union representative be called into the meeting.
  2. You must have reasonable belief that discipline will result from that meeting.
  3. You have the right to know the subject of the meeting and the right to consult your Union representative prior to the meeting to get advice.
  4. Do not refuse to attend a meeting if a representative is requested but denied.  We suggest you attend the meeting and repeatedly insist upon your right to have a Union
    representative present. If this fails, we suggest that you do not answer any questions and that you take detailed notes.

Merit Salary Adjustments (MSA)

Employees shall receive annual merit salary adjustments (MSA) in accordance with Government Code Section 19832 and applicable Department of Personnel Administration (DPA) rules.

Denial of an MSA

If your supervisor denies you an MSA he or she must inform you in writing 10 working days prior to the proposed effective date of the MSA. (DPA Rules, Article 5, Section 599.684)

Your supervisor should also inform you that your MSA may be reconsidered in a minimum of three months and must be reviewed no later than 12 months from the current anniversary date. (DPA Rules, Article 5, Section 599.684)

Grieving the Denial of an MSA

Within 10 calendar days after notification of MSA denial, you may submit a written request for reconsideration under your department’s grievance procedure. After exhausting the departmental remedy, you may appeal to DPA within 15 days after receiving your department’s final decision.

(DPA Rules, Article 5, Section 599.684) Denial of your MSA also may be grieved and arbitrated under the grievance procedure outlined in your bargaining unit’s contract. See your contract for more information.

If you think your rights regarding a Merit Salary Adjustment have been violated, contact the CASE Office at 1-800-699-6533.

Probation


Probation Period

The probation period is considered an extension of the testing process. You must pass the test — your probation — to become a permanent employee. Probationary periods are usually 12 months or the equivalent number of hours, depending on the particular classification (Government Code Section 19170).

Probation Requirements

A probationary period is required under the following circumstances (GC 19171):

a. When an employee enters or is promoted in the state civil service by permanent appointment from an employment list.
b. Upon reinstatement after a break in continuity of service as a result of a permanent separation, or c. After any other type of appointment situation not specifically excluded from the probationary period requirement by statute or by board rule.

Passing Probation


Know What is Expected of You

Identify your specific job duties and tasks and your immediate supervisor; he or she is responsible for passing or rejecting you on probation.

Ask for a Duty Statement

Confusion over management’s expectations is common and may lead to rejection. Request a copy of your duty or position statement from your supervisor. This statement lists your responsibilities and the standards against which you will be evaluated. Also obtain a copy of your classification
specifications and be sure that the responsibilities are identical. Any differences between the two may warrant a revision to your duty statement. (Classification specifications are available at your
personnel office and on the State Personnel Board (SPB) Web site, www.spb.ca.gov.)

Check that your duty statement is current and accurately reflects the work you are performing. If not, meet with your supervisor to discuss your duties and determine if a revision to the duty statement is in order. If there is no duty statement available for your position, ask your supervisor to prepare one.

Your job performance will be evaluated on the basis of duties assigned. You must know exactly what those duties are if you are to carry them out satisfactorily.  

Meet, discuss, document Meet often with your supervisor to discuss any problems and request feedback on your performance. Make a serious effort to improve upon any deficiencies noted.
Save a copy of all communication, including e-mails, regarding your duties, activities and performance. Document all performance-related discussions and events.

Performance Reports

Don’t assume that you will pass probation if you have not received any performance reports. Request a report if your supervisor doesn’t give one at the appropriate time.
Management is required to provide three written appraisals of a probationer’s performance within 10 days after the end of each one-third portion of the probationary period. (DPA Rules, Article 14, Section 599.795)

Each report will cover a number of qualification factors including, but not limited to, your job performance, your personal conduct and your ability to handle responsibility. When you receive your performance report and you question a particular rating or written comment, you have the right to meet with your supervisor to discuss it. If there are any ratings or comments with which you disagree because they are false or inaccurate, you also have the right to write a rebuttal concerning these issues and to have that rebuttal statement attached to your performance report and placed in your official personnel file. (See your specific contract for more information.)

Failure to write a rebuttal statement can be considered an admission of guilt and used against you on your final probation report. 

Training

One of the most important parts of the probation process is training. Without proper guidance and adequate training, any employee could easily fail to live up to his or her potential on the job and consequently be destined for rejection on probation. Take advantage of all training opportunities available to you. If no training is provided, request it. It often seems that people are too busy to provide training or funds are not available for it. Don’t settle for these excuses.

Put your request for training in writing and ask that a copy of the request be placed in your official personnel file. Be specific in your request. Don’t just ask for “training.”

List the specific types of training you need and your reasons for requesting it. This request for training may benefit you in the long run in more ways than one. 

Attendance

More employees are rejected on probation for poor attendance than for any other reason. Sick leave abuse and tardiness are the two most common attendance problems of probationary
employees. You can enhance your attendance and job performance factors by arriving to work on time and by making good use of your time. If you are sick, be sure to follow the official departmental policy for calling in. Make sure you contact the appropriate person.

It is also a good idea to keep a record of your absences and the reasons for them. This information could be valuable in the future.

Probation Report

The final step of the probation process is the probation report. The purpose of this report is to either recommend an individual for permanent status or to reject a person from a promoted position or state service. If you are not recommended for permanent status, contact your labor relations representative immediately.

Appealing Rejection

Winning an appeal of rejection on probation is difficult and the burden of proof falls on you. Rejected probationers must prove to the State Personnel Board that there is no substantial evidence to
support the reasons for rejection or that the rejection was made in fraud or bad faith (GC 19175(d)) 

An appeal from rejection must be filed within 15 days after the effective date of rejection (GC 19175).

If you accepted your probationary position as a promotion and have permanent status in another position, you have an absolute right of return to the former position provided you accepted the appointment without a break in the continuity of state service and the reinstatement is requested within 10 working days after the date of termination (GC 19140.5). (See your labor relations representative for more information.) Another remedy to request of SPB is to restore your name to the employment list for certification within your classification to other agencies. (GC 19175(c))

If you think your rights as a probationary employee have been violated, contact the CASE Office at 1-800-699-6533.

Working Outside of Job Classification


What Is Working Out of Class?

“Out of class” is the performance of duties outside the class concept of your classification of appointment.  The contract language included below governs out-of-class issues for most union-represented workers – bargaining unit 2.

Out-of-Classification Grievances

Definitions

1. An employee is working “out of class” when he/she spends a majority (i.e., more than 50 percent [50%]) of his/her time over the course of at least two (2) consecutive work weeks performing duties and responsibilities associated with a higher level existing classification that do not overlap with the classification in which said employee holds an appointment.

Duties that are appropriately assigned to incumbents in the employee’s current classification are not out of class. Duties appropriately assigned are based on the definition and typical tasks enumerated in the California State Personnel Board specification.

2. Training and Development assignments are not out-of-class work.

3. For purposes of this section, a classification is at a “higher level” if the maximum salary of the highest salary range (excluding alternate range criteria other than deep class criteria) is any amount more than the maximum salary of the highest range of the class in which the employee holds an appointment.

4. When an employee is performing the duties of a vacant position properly assigned to a higher class or the duties of an absent employee whose position is properly assigned to a higher classification, the employee shall be considered to be working out of class.

Authorization and Rate of Pay

1. Notwithstanding Government Code Sections 905.2, 19818.8, and 19818.16, an employee may be temporarily required to perform out-of-class work by his/her department for up to 120 calendar days in any twelve (12) consecutive calendar months when it determines that such an assignment:

a. Is of unusual urgency, nature, volume, location, duration, or other special characteristics; and,

b. Cannot feasibly be met through use of other civil service or administrative alternatives.

2. Departments may not use out-of-class assignments to avoid giving civil service examinations or to avoid using existing eligibility lists created as the result of a civil service examination.

3. When an employee is assigned out-of-class work, he/she shall receive the rate of pay he/she would have received pursuant to Title 2 Cal. Code Regs Section 599.673, 599.674, or 599.676 if appointed to the higher classification.

4. Out-of-class work may be discontinued by departments at any time; however, departments may not rotate employees in and out of out-of-class assignments to avoid payment of out-of-class
compensation.

5. Out-of-class pay shall not be considered as part of the employee’s base pay when computing the rate due upon promotion to a higher level.

How Do I Know If I’m Working Out of Class?

Prior to pursuing an out-of-class grievance, follow these important steps:

  1. Check the State Personnel Board’s (SPB) job specification for your current appointed classification against that of the job specification for the higher level class that you feel may apply to you. Job specifications are available online at www.spb.ca.gov.
  2. Use the classification specifications for comparison purposes among themselves, not between yourself and another co-worker. Sometimes a co- worker in a higher classification is performing the same duties as you, even though you are in a lower classification. This does not necessarily mean you are working out of class.
  3. Review the allocation guidelines between the two classes. For some classifications, it is difficult to tell the difference between various classifications or levels.
  4.  Contact your CASE labor relations representative for allocation guidelines – more detailed versions of SPB’s job specifications.
  5. Complete a union job description form. This form helps you break down the percentage of time spent performing various tasks and greatly aids in the analysis of your case. This form is available from your CASE labor relations representative.

If you think your rights have been violated due to working out of class, contact the CASE Office at 1-800-699-6533.