Reduction-in-force (RIF) rights are not my favorite topic because I only feel compelled to write about them when it appears that layoffs are eminent. However, since the budget proposals of the governor, Senate and House each provide for differing numbers of state facilities to be closed, it’s hard to dodge the topic, especially since one RIF right is currently in a state of confusion that our members need to know how to navigate.

Most state employees know their basic RIF rights — severance pay or, in rare cases, a discontinued service allowance, and priority consideration for re-employment. What members may not be aware of, however, is the conflict that currently exists between an administrative rule and a State Personnel Manual (SPM) policy over the circumstances under which employees who have received RIF notices can lose their priority consideration.

Ironically, both the rule and policy were adopted by the State Personnel Commission (SPC), though at different times.

A long-standing State Personnel Commission administrative rule conflicts with a current SPC policy regarding RIF priority consideration. The administrative rule (which SEANC supports) holds that RIF rights are lost when a terminated employee turns down a job within 35 miles of their original work station that is at or above the pay grade they had achieved at the time of their termination.

The SPC policy (which is less employee-friendly) holds that RIP priority consideration is lost even if the interview or job offer refused is for a position at a lower salary grade or rate. The policy is less friendly to RIF’d employees because, under the threat of losing their priority consideration, they could be forced into a position that pays them significantly less than they had been making in their last position.

SEANC has learned that the Office of State Personnel (OSP) is informing state agencies that they must follow the manual policy. We disagree. We think the rule trumps the policy, because the North Carolina Court of Appeals has held that administrative rules have the force of law, while mere policies do not.

To make matters worse, apparently OSP is not telling the agencies or the employees about the conflicting rule that is better for employees. Without this knowledge, employees will not know to assert their right to retain their priority consideration unless the position they are offered is at an equal or greater salary grade or rate. There is even a strong legal argument based on the wording of the statute creating the priority that it should not be terminated for any reason for one year from the time employees receive their RIF notices.

It is possible that this conflict will be resolved at least partially by HB 834, which makes changes to the State Personnel Act. The bill is still pending in the General Assembly at press time. A provision in the latest version of that bill would put into the SPA what the administrative rule provides, with one important omission: it does not mention that the position offered must be within 35 miles of the employee’s original work station. However, we think that the 35-mile pre-requisite will remain applicable because the administrative rule will continue to retain it.

With the knowledge you have gained from this column, you can assert your rights should your position be cut. If the rights are denied you, then you may want to seek legal assistance. If you are not sure where to go for that assistance, please give me a call at SEANC’s Central Office. And if you should learn of someone else who is facing one of the situations covered in this column, please share this information with them.

By Tom Harris, General Counsel and Chief of Staff