North Carolina § 126-7 - 1. Posting requirement; State employees receive priority consideration; reduction-in-force; Work First hiring; reorganization through reduction.

§ 126-7. 1. Posting requirement; State employees receive priority consideration; reduction-in-force; Work First hiring; reorganization through reduction.

All vacancies for which any State agency, department, or institution openly recruit shall be posted in a place readily accessible to employees within at least the following: The personnel office of the agency, department, or institution having the vacancy; and The particular work unit of the agency, department, or institution having the vacancy. No loss of funds shall be required as a precondition for a reduction in force. State employees to be affected by a reduction in force shall be notified of the reduction in force as soon as practicable, and in any event, no less than 30 days prior to the effective date of the reduction in force. The State Human Resources Commission shall adopt rules governing the priority and salary rights of State employees separated from State employment as the result of reductions in force who accept a position in State government to provide that the employee shall be paid a salary no higher than the maximum of the salary grade of the position accepted. Subsection (a) of this section does not apply to vacancies which must be filled immediately to prevent work stoppage or the protection of the public health, safety, or security. If a State employee subject to this section: Applies for another position of State employment that would constitute a promotion; and Has substantially equal qualifications as an applicant who is not a State employee; If a State employee who has been separated due to reduction in force or who has been given notice of imminent separation due to reduction in force: Applies for another position of State employment equal to or lower in salary grade than the position held by the employee at the time of notification or separation; and Has substantially equal qualifications as any other applicant; If a State employee who has been separated due to reduction in force or who has been given notice of imminent separation due to reduction in force accepts or rejects an offer for a position of State employment that is equal to or higher than the position held or equal to or higher than the salary earned by the employee at the time of separation or notification, then the employee's acceptance or rejection of that offer shall satisfy and terminate the one-time, 12-month priority granted by subsection (f) of this section. If a State employee who has been separated due to reduction in force or who has been given notice of imminent separation due to reduction in force and who applies for a position equal to or higher than the position held by the employee at the time of separation or notification, but declines an interview for the position for which the employee applied, then the employee's rejection of an offer of the interview for the position shall satisfy and terminate the one-time, 12-month priority granted by subsection (f) of this section. The State Human Resources Commission shall adopt a policy to carry out this subsection. "Qualifications" within the meaning of subsection (e) of this section shall consist of: Training or education; Years of experience; and Other skills, knowledge, and abilities that bear a reasonable functional relationship to the abilities and skills required in the job vacancy applied for. Each State agency, department, and institution is encouraged to hire into State government employment qualified applicants who are current or former Work First Program participants. Each State agency, department, institution, university, community college, and local education agency shall verify, in accordance with the Basic Pilot Program administered by the United States Department of Homeland Security pursuant to 8 U.S.C. § 1101, et seq, each individual's legal status or authorization to work in the United States after hiring the individual as an employee to work in the United States. Any department or office listed in G.S. 126-5(d)(1) or (2) and The University of North Carolina and its constituent institutions may reorganize and restructure its positions through a voluntary separation process, in accordance with a policy approved by the State Human Resources Commission and subject to funding and approval by the Office of State Budget and Management. If the decision is made, initially or at any time while the vacancy remains open, to receive applicants from outside the recruiting agency, department, or institution, the vacancy shall also be listed on a website maintained by the Office of State Human Resources for the purpose of informing current State employees and the public of such vacancy. The State agency, department, or institution may not receive approval from the Office of State Human Resources to fill a job vacancy if the agency, department, or institution cannot prove to the satisfaction of the Office of State Human Resources that it complied with these posting requirements. The agency, department, or institution which hires any person in violation of these posting requirements shall pay such person when employment is discontinued as a result of such violation for the work performed during the period of time between his initial employment and separation. then the State employee shall receive priority consideration over the applicant who is not a State employee. This priority consideration shall not apply when the only applicants considered for the vacancy are current State employees. then within all State agencies, the State employee who has been notified of or separated due to a reduction in force shall receive priority consideration over all other applicants. This priority shall remain in effect for a period of 12 months from the date the employee receives notification of separation by reduction in force. State employees separated due to reduction in force shall receive higher priority than other applicants with employment or reemployment priorities, except that the reemployment priority created by G.S. 126-5(e)(1) shall be considered as equal. History (1987, c. 689, s. 2; 1991, c. 65, s. 4; c. 474, s. 1; 1995, c. 141, s. 9; c. 507, s. 7.20(a); 1997-443, s. 12.7(d); 2006-259, s. 23.1(a); 2011-145, s. 29.21A(a); 2011-391, s. 59(a), (b); 2013-382, ss. 5.1, 9.1(c); 2015-260, s. 5.1; 2018-5, s. 35.24.) Editor's Note. - This section was rewritten by Session Laws 2011-391, s. 59(b), and subsections (a) through (f) were redesignated as subsections (a) through (i) at the direction of the Revisor of Statutes. Session Laws 2011-145, s. 29.21A(a) also rewrote this section, however Session Laws 2011-391, s. 59(a), repealed Session Laws 2011-145, s. 29.21A(a). Session Laws 2006-259, s. 23.1(b), provides: "This section does not apply to persons under contract or subcontract. This section applies to employees hired on or after January 1, 2007, except that it applies to employees of local education agencies hired on or after March 1, 2007." Session Laws 2009-451, s. 26.14D, as amended by Session Laws 2010-123, s. 9.3, provides: "The priority consideration afforded to State employees pursuant to G.S. 126-7.1(c1)[(f)] shall remain in effect for an additional 12-month period for those employees who receive notification, on or after May 1, 2009, but on or before June 30, 2011, of a prospective separation of employment by reduction in force provided the employee was subsequently separated by a reduction in force." Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'." Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium." Session Laws 2009-451, s. 28.5, is a severability clause. Session Laws 2011-145, s. 29.21(a) and (b), provides: "(a) There are established in the Office of State Budget and Management General Fund and Highway Fund reserve budget codes for the purpose of funding severance-related obligations to State employees subject to the State Personnel Act [now North Carolina Human Resources Act], and employees exempt from the State Personnel Act, who are separated from service due to a reduction-in-force action. Severance-related expenditures from these reserves shall include obligations to fund: "(1) A State employee's severance salary continuation with an age adjustment factor as authorized by G.S. 126-8.5, including employer-related contributions for social security, and "(2) Noncontributory health premiums for up to 12 months as authorized by G.S. 135-45.2(a)(8) for employees of employing units as defined by G.S. 135-45.1(12). "(b) The Director of the Budget shall allocate funds appropriated in Sections 2.1 and 3.1 of this act to the Severance Expenditure Reserve to public agencies to fund severance-related obligations incurred by the agencies as a result of reduction-in-force actions that cause State-supported public employees to be terminated from public employment. Funds appropriated to the Severance Expenditure Reserve shall be expended in their entirety before funds appropriated to a public agency for State-supported personal services expenditures may be used to fund any severance-related obligations. "Funds appropriated to the Severance Expenditure Reserve may be allocated to public agencies for positions that are funded by the General Fund or Highway Fund. Funds appropriated to the Severance Expenditure Reserve may also be allocated to public agencies for positions that are funded partially from the General Fund or Highway Fund and partially from sources other than the General Fund or Highway Fund but only to the extent of the proportionate part of the salaries paid from the General Fund or Highway Fund. "For the purposes of this subsection, the term 'public employee' means an employee of a State agency, department, or institution; The University of North Carolina; the North Carolina Community College System; or a local school administrative unit." Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'" Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium." Session Laws 2011-145, s. 32.5, is a severability clause. Session Laws 2011-391, s. 59(b), provides: "Nothing in this section affects the extended period of priority reconsideration afforded to State employees by Section 26.14D of S.L. 2009-451, as amended by Section 9.3 of S.L. 2009-575." Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act: "(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.' "(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.' "(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.' " Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary." Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies." Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office." Session Laws 2015-260, s. 6, made the amendment of subsection (c) and addition of subsections (f2) and (j), applicable to employees separated on or after October 1, 2015. Session Laws 2018-5, s. 34.19(a)-(h), provides: "(a) Subject to the approval of the Secretary of the Department of Transportation, employees of the Department of Transportation (Department) who voluntarily relinquish (i) annual longevity payments or any claim to longevity pay and (ii) any claim to career status or eligibility for career status are exempt from: "(1) The classification and compensation rules established by the State Human Resources Commission pursuant to G.S. 126-4(1) through (4). "(2) G.S. 126-4(5) only as it applies to hours and days of work, vacation, and sick leave. "(3) G.S. 126-4(6) only as it applies to promotion and transfer. "(4) G.S. 126-4(10) only as it applies to the prohibition of the establishment of incentive pay programs. "(5) Article 2 of Chapter 126 of the General Statutes, except for G.S. 126-7.1. "(b) Nothing in subsection (a) of this section shall be construed to abrogate career status under G.S. 126-1.1. "(c) For the 2018-2019 fiscal year and the 2019-2020 fiscal year, the sum equal to two percent (2%) of the total Highway Fund and Highway Trust Fund appropriation for the applicable fiscal year for the payroll expenses of the Department may be used for the purposes of: "(1) Salary adjustments within the Department to provide competitive salary rates and to address changes in labor market salary rates as documented through the Department's data collection and analysis according to accepted human resource professional practices and standards. "(2) Reallocation of positions within the Department to higher-level job classifications to compensate employees for more difficult duties at competitive salary rates as documented through data collection and analysis according to accepted human resource professional practices and standards. "(3) Recruitment and retention programs instituted at the Secretary's discretion. "(d) Priority funding shall be given to recruitment, retention, salary range revisions, and reallocations affecting the job classifications and bands deemed by the Secretary to be most in need of immediate attention. The Department, as determined by the Department to be needed, may utilize market surveys and other relevant employment sector information available to the Office of State Human Resources. "(e) The Department shall report to the Joint Legislative Transportation Oversight Committee and Fiscal Research Division of the General Assembly, beginning January 1, 2019, and the semiannually thereafter, regarding the actions taken pursuant to this section. "(f) Notwithstanding G.S. 126-7.1 or any law to the contrary, the Secretary of the Department of Transportation may designate vacant positions as not being subject to the open recruitment requirements of G.S. 126-7.1(a) for the purpose of carrying out the recruitment flexibility granted to the Secretary under subdivision (3) of subsection (c) of this section. The Secretary shall notify the State Human Resources Commission within 30 days of invoking recruitment flexibility. "(g) Compensation decisions made under this section are exempt from the classification and compensation rules and policies established by the State Human Resources Commission. "(h) This section becomes effective July 1, 2018, and expires June 30, 2020." Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'" Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year." Session Laws 2018-5, s. 39.7, is a severability clause. Effect of Amendments. - Session Laws 2006-259, s. 23.1(a), effective August 23, 2006, and applicable to persons under contract or subcontract and is applicable to employees hired on or after January 1, 2007, except that it applies to employees of local education agencies hired on or after March 1, 2007, added subsection (f). Session Laws 2011-145, s. 29.21A(a), effective July 1, 2011, and applicable to employees subject to reductions in force on or after July 1, 2011, in the section catchline, deleted "State employees receive priority consideration" following "Posting requirement" and substituted "reduction in force" for "reduction-in-force rights"; in the introductory language of subsection (a), inserted "in a place readily accessible to employees that is located"; in the first sentence of subdivision (a)(2), deleted "in a location readily accessible to employees" from the end; deleted subsection (a2), which pertained to duty of the State Personnel Commission to adopt rules providing priority consideration for separated State employees; deleted subsections (c1) and (c2), which pertained to State employees separated due to reduction in force, and applicants for reemployment with more than 10 years of service receiving priority, respectively; and deleted subsection (d), which was the definition for "Qualifications." Session Laws 2011-391, s. 59(b), effective June 30, 2011, rewrote the section. Session Laws 2013-382, s. 5.1, effective August 21, 2013, and applicable to reductions in force implemented on or after that date, added subsection (f1); and made a minor punctuation change in subdivision (e)(2). Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "Office of State Human Resources" for "Office of State Personnel" throughout the last paragraph of subsection (a), and substituted "State Human Resources Commission" for "State Personnel Commission" in subsection (c). Session Laws 2015-260, s. 5.1, effective October 1, 2015, and applicable to employees separated on or after that date, added "reorganization through reduction" at the end of the section heading; in subsection (c), substituted "adopt rules governing the priority and salary rights of" for "adopt rules to provide that," and inserted "to provide that the employee"; and added subsections (f2) and (j). Session Laws 2018-5, s. 35.24, effective July 1, 2018, in subsection (b), added the first sentence; and in subsection (j), substituted "Any department" for "A department" at the beginning, and added "and The University of North Carolina and its constituent institutions" near the middle.