No. 27885 (Amendment): R477-2. Administration

DAR File No.: 27885
Filed: 05/13/2005, 11:28
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

Amendments to this rule clarify procedures for filing a discrimination complaint for employees and for the retention of personnel records for human resource professionals and make nonsubstantive changes.

 

Summary of the rule or change:

In Subsection R477-2-3(3), the amendments bring the rule more explicitly in line with long standing procedures and options for an employee to file a discrimination claim with the agency head, the Utah Anti-discrimination and Labor Division, or directly with the Equal Employment Opportunity Commission (EEOC). In Subsection R477-2-5(6), this amendment brings rule in line with requirements of the State Record Center for the retention of official records. The retention schedule for these records is more appropriately set by the Department of Human Resource Management (DHRM) under authority of the Government Records Access and Management Act (Subsection 63-2-903(4)), than in rule.

 

State statutory or constitutional authorization for this rule:

Subsection 63-2-903(4), and Sections 67-19-6 and 67-19-18

 

Anticipated cost or savings to:

the state budget:

Impact on the state budget will be neutral with these amendments. These are just clarifications that will not force agencies to change long standing procedures for dealing with discrimination complaints or records retention.

 

local governments:

This rule is only binding on agencies of the executive branch of state government and does not affect local governments.

 

other persons:

This rule is only binding on agencies of the executive branch of state government and does not affect other persons.

 

Compliance costs for affected persons:

No additional resources will be required to comply with this rule amendment. Agencies already have long standing procedures for handling discrimination complaints and records retention issues.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. Section 67-19-15 limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or saving on to businesses through fees. However, no such costs or savings will accrue with this amendment. Jeff Herring, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

 

Direct questions regarding this rule to:

May Vang or Conroy Whipple at the above address, by phone at 801-537-3081 or 801-538-3067, by FAX at 801-538-3377 or 801-538-3081, or by Internet E-mail at [e-mail] or [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2005

 

This rule may become effective on:

07/02/2005

 

Authorized by:

Jeff Herring, Executive Director

 

 

RULE TEXT

R477. Human Resource Management, Administration.

R477-2. Administration.

R477-2-3. Fair Employment Practice.

All state personnel actions must provide equal employment opportunity for all individuals.

(1) Employment actions including appointment, tenure or term, condition or privilege of employment shall be based on the ability to perform the essential duties, functions, and responsibilities assigned to a particular position.

(2) Employment actions shall not be based on race, religion, national origin, color, sex, age, disability, protected activity under the anti-discrimination statutes, political affiliation, military status or affiliation or any other non-job related factor, nor shall any person be subjected to unlawful harassment by a state employee.

(3) [Any]An employee who alleges [that they have been illegally discriminated against,]illegal discrimination may submit a claim to the agency head.

(a) [If the employee does not agree with the decision of the agency head, the employee may file a complaint with the Utah Anti-Discrimination and Labor Division.

(b) If the employee does not agree with the decision of the agency head, the employee may also file a complaint with the Equal Employment Opportunity Commission.]The employee may file a charge with the Utah Anti-Discrimination and Labor Division within 180 days of the alleged harm, or directly with the EEOC within 300 days of the alleged harm.

([c]b) No state official shall impede any employee from the timely filing of a discrimination complaint in accordance with state and federal requirements.

 

R477-2-5. Records.

(1) DHRM shall maintain a computerized file for each employee that contains the following, as appropriate:

(a) performance ratings;

(b) records of actions affecting employee salary, current classification, title and salary range, salary history, and other personal data, status or standing.

(2) Agencies shall maintain the following records in each employee's personnel file:

(a) applications for employment, Employment Eligibility Certification record, Form I-9, and other documents required by Immigration and Naturalization Service (INS) Regulations, under the Immigration Reform and Control Act of 1986, employee signed overtime agreement, personnel action records, notices of corrective or disciplinary actions, new employee orientation form, performance evaluation records, separation and leave without pay records, including employee benefits notification forms for PEHP and URS;

(b) references to or copies of transcripts of academic, professional, or training certification or preparation;

(c) copies of items recorded in the DHRM computerized file and other materials required by agency management to be placed in the personnel file. The agency personnel file shall be considered a supplement to the DHRM computerized file and shall be subject to the rules governing personnel files;

(d) leave and time records; and

(e) [Copies]copies of any documents affecting the employee's conduct, status or salary. The agency shall inform employees of any changes in their records based on conduct, status or salary no later than when changes are entered into the file.

(3) Agencies shall maintain a separate file from the personnel file if the agency obtains confidential employee medical information.

(a) Information in this file shall include all written and orally obtained information pertaining to medical issues, including Family Medical and Leave Act forms, medical and dental enrollment forms which contain health related information, health statements, applications for additional life insurance, fitness for duty evaluations, drug testing results, and any other medical information.

(b) Information in this file is considered private or controlled information. Communication shall adhere to the Government Records Access and Management Act, Section 63-2-101.

(c) An employee who violates confidentiality is subject to state disciplinary procedures.

(4) An employee has the right to review the employee's personnel file, upon request, in DHRM or the agency, as governed by law and as provided through agency policy.

(a) An employee may correct, amend, or challenge any information in the DHRM computerized or agency personnel file, through the following process:

(i) The employee shall request in writing that changes occur.

(ii) The employing agency shall be given an opportunity to respond.

(iii) Disputes over information that are not resolved between the employing agency and the employee[,] shall be decided in writing by the Executive Director, DHRM. DHRM shall maintain a record of the employee's letter[;], the agency's response[;], and the DHRM Executive Director's decision.

(5) When a disciplinary action is rescinded or disapproved upon appeal, forms, documents and records pertaining to the case shall be removed from the personnel file.

(a) When the record in question is on microfilm, a seal will be placed on the record and a suitable notice placed on the carton or envelope. This notice shall indicate the limits of the sealed section and the authority for the action.

(6) Upon employee separation, DHRM and agencies shall retain computerized records for thirty years. Agency hard copy records shall be retained by the agency for a minimum of two years, then transferred to the State Record Center [by State Archives Division ]to be retained [for 65 years]according to the record retention schedule.

(7) Information classified as private in both DHRM and agency personnel and payroll files shall be available only to the following people:

(a) the employee;

(b) users authorized by the Executive Director, DHRM, who have a legitimate ["need-to-know"]need to know;

(c) individuals who have the employee's written consent.

(8) Utah is an open records state, according to Chapter 2, Title 63, the Government Records Access and Management Act. Requests for information shall be in writing. The following information concerning current or former state employees, volunteers, independent contractors, and members of advisory boards or commissions shall be given to the public upon written request where appropriate with the exception of employees whose records are private or protected:

(a) the employee's name;

(b) gross compensation;

(c) salary range;

(d) contract fees;

(e) the nature of employer[-]paid benefits;

(f) the basis for and the amount of any compensation in addition to salary, including expense reimbursement;

(g) job title;

(h) performance plan;

(i) education and training background as it relates to qualifying the individual for the position;

(j) previous work experience as it relates to qualifying the individual for the position;

(k) date of first and last employment in state government;

(l) the final disposition of any appeal action by the Career Service Review Board;

(m) the final disposition of any disciplinary action;

(n) work location;

(o) a work telephone number;

(p) city and county of residence, excluding street address;

(q) honors and awards as they relate to state government employment;

(r) number of hours worked per pay period;

(s) gender;

(t) other records as approved by the State Records Committee.

(9) When an employee transfers from one agency to another, the former agency shall transfer the employee's original file to the new agency. The file shall contain a record of all actions that have affected the employee's status and standing.

(10) An employee may request a copy of any documentary evidence used for disciplinary purposes in any formal hearing, regardless of the document's source, prior to such use. This shall not apply to documentary evidence used for rebuttal.

(11) Employee medical information obtained orally or documented in separate confidential files is considered private or controlled information. Communication must adhere to the Government Records Access and Management Act, Section 63-2-101. Employees who violate confidentiality are subject to state disciplinary procedures and may be personally liable for slander or libel.

(12) In compliance with the Government Records Access and Management Act, only information classified as ["public" or "private"]public or private which can be determined to be related to and necessary for the disposition of a long term disability or unemployment insurance determination shall be approved for release on a need to know basis. The agency human resource manager or authorized manager in DHRM shall make the determination.

(13) An employee may verbally request the release of information for personal use, or authorize in writing the release of personal performance records for use by an outside agent based on a need to know authorization. ["Private"]Private data shall only be released, except to the employee, after a written request has been evaluated and approved.

 

R477-2-6. Release of Information in a Reference Inquiry.

Reference checks or inquiries made regarding current or former public employees, volunteers, independent contractors, and members of advisory boards or commissions can be released if the information falls under a category outlined in R477-2-[6(7)]5(8), or if the subject of the record has signed and provided a reference release form for information authorized under Title 63, Chapter 2.

(1) The employment record is the property of Utah State Government with all rights reserved to utilize, disseminate or dispose of in accordance with the Government Records Access and Management Act.

(2) Additional information may be provided if authorized by law.

 

KEY: administrative responsibility, confidentiality of information, fair employment practices, public information

[July 2, 2004]July 2, 2005

Notice of Continuation June 11, 2002

52-3-1

63-2-204(5)

63-2-903(4)

67-19-6

67-19-6.4

67-19-18