Current through Register Vol. 56, No. 18, September 16, 2024
(a) In both a three-level and a five-level Performance Assessment Review (PAR) rating scale, an employee receiving an annual PAR rating below the Successful level shall be denied an anniversary date increment.
1. An appointing authority may request an anniversary date increment for an employee who was denied an increment because of receiving an Unsatisfactory rating in a three-level or a five-level rating scale, but whose performance has subsequently improved. If approved by the Chairperson or designee, such increment shall not be effective until a pay period beginning at least 90 days after the employee's anniversary date. In the case of a five-level rating scale, if an employee who had received a rating of Two-Needs Improvement/Development demonstrates an improved performance within 90 days following the rating, the increment shall be restored to the employee retroactively.
2. An employee who receives an annual rating below the Successful level in a three-level rating scale or an annual rating of One - Unsatisfactory Performance in a five-level rating scale should be referred by the appointing authority to the Employee Advisory Service. See 4A:6-4.1 0.
(b) Employees who are not represented by a collective negotiations unit or who are so represented but whose contract does not specify an appeal procedure, may appeal performance standards or a final PAR rating of Unsatisfactory in a three-level rating scale or a final PAR rating of One - Unsatisfactory or Two - Needs Improvement/Development in a five-level rating scale through noncontractual grievance procedures. See 4A:2-3.1. In addition to the grievance procedure requirements, all appeals shall be accompanied by a copy of the PAR evaluation.
(c) Employees who are represented by a collective negotiations unit may, where the contract so provides, file an appeal utilizing the procedures set forth in (d) below, regarding the following PAR ratings and issues:
1. In the case of a three-level rating scale, a final PAR rating of Unsatisfactory, or, where specifically provided in the contract, a final PAR rating of Successful;
2. In the case of a five-level PAR rating scale, a final PAR rating of One - Unsatisfactory Performance or Two - Needs Improvement/Development; and
3. Performance standards, regardless of the number of levels in the rating scale.
(d) The following are the procedures that shall be utilized where the requirements of (c) above are met:
1. Step One grievance procedures shall be conducted as set forth in 4A:2-3.4.
2. A grievant may appeal a Step One grievance decision to the PAR Joint Union Management Panel within 10 calendar days of receipt of the written decision at Step One, or a lack of timely response by the appointing authority. The appeal shall be accompanied by material presented at Step One and any written records or decisions from Step One.
i. The Joint Union Management Panel shall consist of one individual selected by the appointing authority, one individual selected by the affected negotiations representative and one neutral individual jointly selected by the appointing authority and the affected negotiations representative.
ii. The panel shall meet, provided there are at least four Second Step appeals to be heard. The panel shall meet one additional day each month for every four additional appeals to be heard. When in any month there is no meeting because there are fewer than four appeals to be heard, there shall be a meeting the following month, so long as there are any cases to be heard.
iii. The appointing authority and union panel members shall discuss each appeal on the agenda and, with the assistance of the neutral panel member, attempt to jointly resolve the appeal.
iv. If the appointing authority and union cannot come to a joint resolution, the appeal shall be heard by the full panel. At any Second Step appeal hearing, the employee may be represented by a union steward, local union officer, and/or local union staff representative.
v. The parties may call witnesses and present evidence at the Second Step appeal hearing. However, each hearing shall conclude within approximately four hours. The neutral panel member shall control the admission of testimony and evidence to ensure adherence to this time frame.
vi. The panel shall issue a written decision within 10 days of the hearing. Each panel member shall have one vote.
3. Appeals from decisions of the Joint Union Management Panel may be made to the Civil Service Commission in accordance with 4A:2-3.7(b).
(e) An employee may appeal the final departmental decision to the Civil Service Commission within 20 days of receipt of the decision.
1. The appeal shall be in writing and include a copy of the written departmental decision and the basis for the appeal.
2. The employee shall have the burden of proof to establish that the actions of the supervisor in assigning the rating were arbitrary, unreasonable, or induced by improper motives.
3. The Commission shall render a final administrative decision upon the written record or such other proceeding as it deems appropriate. See 4A:2-1.1.
(f) A rating of Unsatisfactory in a three-level rating scale or a rating of One - Unsatisfactory Performance in a five-level rating scale shall constitute evidence of incompetency, inefficiency, or failure to perform duties. In a disciplinary action, an employee may challenge the basis of any rating that is an issue in the proceeding.
(g) Performance ratings may be used as a factor in promotion (see 4A:4-2.1 5) and layoff (see 4A:8-2.2(d)5 and 2.4(h)).
