TEMPORARY AND PERMANENT SEPARATIONS
§ 101.1. Furlough.
(a) Reasons. Furloughs shall occur only because of lack of funds or lack of work.
(b) Preference in retention. An appointing authority will not furlough a regular employee while a probationary, qualifier, provisional, temporary or emergency employee is employed in the same class, in the same furlough unit designated by the appointing authority. An appointing authority will not furlough a probationary employe while a qualifier, provisional, temporary or emergency employee is employed in the same class and furlough unit.
(c) Furlough units. Furloughs will be conducted within approved furlough units. For purposes of this section, a furlough unit shall be defined as all employees in the classification within an affected institution, division, bureau or a combination of the institutions, divisions or bureaus within an agency. Each appointing authority will submit recommended furlough units to the Director. Once approved by the Director, these furlough units will be used for subsequent furloughs. Changes to the approved furlough units shall be submitted to and approved by the Director prior to their use in subsequent furloughs.
(d) Order of furlough. When a furlough is necessary, the last annual or probationary performance evaluations, as applicable, of regular employees in the same furlough unit and class shall be converted to categories or relative ranks. The employees will be placed into quarters, and those in the lowest quarter will be furloughed or returned under subsection (e), in the inverse order of classified service seniority. Seniority for this purpose shall be the length of continuous service in the classified service if there has been no break in service.
(e) Right of return before furlough. Upon notification of, and until the effective date of furlough, regular employees to be furloughed shall have right of return to vacant positions in the appointing authority in any class and status previously held, or to a class and status in the same or lower levels, if the employee meets the minimum qualifications therefor. Probationary employees will be restored to the eligible list from which appointed or to the class previously held if the probationary status resulted from promotion.
(f) Mandatory reemployment. Furloughed employees who are unable to exercise their right of return will be given a mandatory 1-year preference for reemployment in the same class and appointing authority from which furloughed. The preference does not apply to vacancies to which employes on leave of absence have priority of return, or to a filled position which has been reallocated upward after the effective date of furlough.
(g) Optional reemployment. Furloughed employees who are unable to exercise their right of return also will be placed, for 1 year, on optional reemployment lists for the class from which furloughed and for equal and lower level classes for which qualified, for certification to all appointing authorities.
(h) Reemployment certifications. Requirements for certifications shall be as follows:
(1) Certifications from mandatory reemployment lists shall preclude issuance of certifications otherwise applicable to available vacancies except for certifications from preferred reemployment lists which shall take precedence over all other eligible lists. Certifications from optional reemployment lists shall be considered coequally with all other employment or promotion certifications issued for available vacancies.
(2) Furloughed employees shall be certified from mandatory reemployment lists according to their stated availabilities. The appointing authority will give reemployment preference to those on mandatory reemployment lists with higher overall performance evaluations. In cases of identical performance evaluations, furloughees with greater continuous classified service seniority will have reemployment preference.
(3) Furloughed employees shall be certified from optional reemployment lists according to their stated availabilities. The appointing authority may select any furloughed employee from the optional reemployment list.
(i) Refusal of mandatory reemployment. Furloughed employees who refuse reemployment in the same class, location and appointing authority from which furloughed shall forfeit all reemployment preferences, and shall be considered as having voluntarily resigned as of the furlough effective date.
(j) Refusal of optional reemployment. Furloughed employees who refuse appointment from an optional reemployment list shall forfeit appointment eligibility for that class and lower level classes, but shall retain mandatory preference and other optional preferences for reemployment. If preferences subsequently are not, or cannot be, exercised, the furloughees shall be considered as having voluntarily resigned as of the furlough effective date.
(k) Separate reemployment lists. Separate reemployment lists will be established for State and non-State agencies.
(l) Furlough under collective bargaining agreement. If there is a labor agreement covering the employees to be furloughed, the terms of the agreement as to furlough and reemployment procedures shall be controlling.
The provisions of this § 101.1 adopted October 18, 1961; amended October 15, 1964 and April 16, 1970; amended February 8, 1974, effective February 9, 1974, 4 Pa.B. 233; amended March 29, 1985, effective March 30, 1985, 15 Pa.B. 1151; amended November 15, 1991, effective November 16, 1991, 21 Pa.B. 5334. Immediately preceding text appears at serial pages (96784) and (140017) to (140018).
Notes of Decisions
Substantial evidence existed in the record to support the hearing examiners finding that the dean for student services was furloughed for lack of funds, where, despite increased revenue, the university was able to show a budgetary shortfall which necessitated modifications in the system, the university, through the termination of the deans position, was able to project a savings of $43,000, and the university was not obligated to adopt the deans alternative solutions as the university had a great deal of managerial flexibility in the decision making process. Bumba v. State System of Higher Education, 734 A.2d 36 (Pa. Cmwlth. 1999); appeal denied 757 A.2d 935 (Pa. 2000).
The civil service employe was properly furloughed by the Department as according to the county furloughed unit set up by the Department of which only two people had the same job title and the furloughed employees performance evaluation review which was then due was the lower of the two. Valence v. Department of Public Welfare, 641 A.2d 644 (Pa. Cmwlth. 1994).
A Department of Labor and Industrys furlough of a rehabilitation specialist based on lack of work was upheld, where the agency introduced evidence that necessary duties performed by the specialist could be contracted out and the object of the furlough action was the elimination of a position. Stump v. Department of Labor and Industry, 624 A.2d 229 (Pa. Cmwlth. 1993).
The reassignment of two Office of Budget employees at the same time of the furlough of two other Office of Budget employes created a vacancy, because a vacancy existed under the Civil Service Commission regulations when the reassigned employes would no longer function as assistant comptrollers in their new positions, thus creating a vacancy simultaneous with the furlough action. Roetenberg v. Office of Budget, 550 A.2d 825 (Pa. Cmwlth. 1988).
Since appellant could not show that he was actually injured by the designation of an improper furlough unit, the dismissal of his appeal was appropriate. Pronko v. Department of Revenue, 539 A.2d 456 (Pa. Cmwlth. 1988).
Where employees application for lower grade position was submitted prior to notification of furlough and the lower level position was eliminated prior to furlough notification, the employee had no right to the abolished lower position under this section. OByrne v. Department of Transportation, 498 A.2d 1385 (Pa. Cmwlth. 1985) (Footnote 3).
The provisions of subsection (c) necessarily require an agency or department to designate furlough units before commencing a reduction in force. Reneski v. Department of Public Welfare, 479 A.2d 652 (Pa. Cmwlth. 1984).
The rights of a furloughed employe under 4 Pa. Code § 101.1 (relating to furloughs) or under section 802 of the Civil Service Act (71 P. S. § 741.802) are not affected by his failure to file a timely appeal from a notice of furlough. Marks v. Civil Service Commission, 299 A.2d 691 (Pa. Cmwlth. 1973).
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