2021 Personnel Updates
HB 1146 was signed into law on April 26, 2021. This legislation enables the state to modernize its merit system for state agency employees. This is OPEA's centralized location for all information on the effects and future policy updates due to this landmark legislation.
April 28th, 2021
What does this legislation mean for state employees?
PROPOSED STATE EMPLOYEE DISPUTE RESOLUTION PROGRAM FOR ADVERSE ACTION
The following is a brief outline and flow chart (above) for the proposed process when the employee receives the following adverse actions termination, suspension, demotions, punitive transfer, and written reprimands. These policies must be developed in the rules-making process. Some of the deadlines must be discussed in policy development before they can be approved. Therefore, some deadlines are “to be determined” in the policy development process. The rules that are developed must adhere to the federal standard to maintain federal funding for programs such as SNAP, and they must be approved by the Oklahoma state legislature.
Definition of Administrative Law Judge (ALJ): is a judge and trier of fact who both presides over trials and adjudicates claims or disputes (in other words, ALJ-controlled proceedings are bench trials) involving administrative law. ALJ’s have always been the independently contracted overseer of due process for Oklahoma State Employees
Step One: Supervisor notifies employee in writing that they intend to do one of the following: terminate, suspend without pay, involuntary demote, transfer, and or written reprimand. The proposed written notification must contain the reason for action and inform employee they have three business days to respond.
Step Two: The affected employee has three business days to respond in writing to their supervisor about why they do not feel the action is justifiable. After the employee submits a response, the supervisor has two business days to make the final determination on the action. If the supervisor determines the adverse action is appropriate, the action is implemented and in cases of termination, the employee’s compensation ceases. The employee can move to step three or accept the outcome.
Step Three. If the employee is not satisfied with the outcome of step two, they may file a written complaint within 5 business days to OMES Human Capital Management HCM for review.
Step Four: Within a set number of business days to be determined in policy development, OMES Human Capital Management will contact the employee or their representative and the agency to determine if both parties would agree to binding mediation. If the employee and agency agree to mediation, HCM will assign a contractor mediator. The mediation must occur within 25 business days of the adverse action.
Adverse action regarding pay and involuntary demotion step 4 is skipped and goes to step five. NOTE: Written Reprimands and punitive transfers can only be assigned to mediation
Step Five: If mediation is not used HCM will assign an independent Administrative Law Judge within a to be determined in policy development number of business days from receiving the complaint.
Step Six The Administrative Law Judge will hold the hearing within twenty five business days of receiving the adverse action.
Step Seven: The Administrative Law Judge will make the final ruling on the complaint within a to be determined in policy development number of business days after the hearing. This will end the Administrative Process
Bill language referring to this process:
Page 3 Section 6.C.
Complaints shall be filed with the Human Capital Management Division within five (5) business days of the date of when such action occurred and hearings shall take place within twenty-five (25) business days of the action.
Current State Agency Process for Employee Adverse Action
The following is an overview and flowchart of Oklahoma’s current Merit System process for conducting an adverse action (termination, suspension, demotion, transfer, other actions resulting in a loss of pay and benefits and reprimands) against a permanent, classified employee. The steps do not apply to unclassified, probationary, or temporary employees. Any employee wishing to have their case heard in district court must have completed these steps for their case to be eligible to be heard in court. A flowchart for the process is above.
Internal Agency Steps: These are required steps conducted internally by state agencies
Step One: Employee Notification of Intent- The employee’s supervisor notifies them in writing of the agency’s intent to conduct an adverse personnel action against the employee no fewer than seven but no more than ten calendar days from the notification date. It must also include the reason for the action. The supervisor advises the employee of their rights under the state’s merit rules. If the action is a termination, the agency may send the employee home on paid leave.
Step Two: Hearing - The agency appoints a hearing officer for the case and the hearing is conducted no less than ten calendar days from the date the employee was notified of the action. The employee has the right to representation at the hearing.
Step Three: Hearing Officer Findings - The hearing officer makes a recommendation to the Agency Appointing Authority.
Step Four: Appointing Authority Decision & Final Notification The appointing authority makes the final decision and notifies the employee within ten calendar days from the hearing date. If the decision upholds the adverse action, the employee is informed of their right to appeal it to the Merit Protection Commission (MPC). If the action is a termination, the employee is removed from paid administrative leave and terminated.
Merit Protection Commission Steps: These are steps conducted by MPC If Employee Pursues MPC Hearing
Step One: MPC Binding Mediation - The employee may file an MPC appeal within 20 calendar days of the adverse action. MPC schedules a binding mediation between the agency and the employee. There are no deadlines that MPC must adhere to in scheduling and hearing the mediation.
Step Two: MPC Mediation Findings - Mediation is conducted. If it results in an agreement, MPC executive director reviews the agreement and the case is dismissed.
Step Three: MPC Hearing - If mediation does not result in an agreement, the case is set for a hearing before an MPC Administrative Law Judge (ALJ). There is no deadline for the ALJ to hear and adjudicate the case.
Step Four: MPC Notification: The MPC hearing officer notifies the parties of their decision. If the ALJ, upholds the adverse action, the employee may appeal directly to the MPC commissioner within 20 days of the MPC finding. There is no deadline for the board to rule on the case if sent to them.
State Agencies Have Been Rapidly Unclassfying Positions
The chart below shows the trend of moving classified positions into unclassified service. Many state employees have seen previously classified positions being changed to unclassified by their agency. State agencies have also been enticing classified employees with pay raises to move them to unclassified positions or reclassifying vacant classified positions to unclassified status. The recently passed merit system modernization will give 95% of state employees due process similar to that of classified employees.