OUT-OF-TITLE
WORK
17.1 No employee shall be employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he/she has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of the Civil Service Law, Rules and Regulations.
17.2 The term “temporary emergency” as used in this Article shall mean an unscheduled situation or circumstance which is expected to be of limited duration and either (a) presents a clear and imminent danger to person or property, or (b) is likely to interfere with the conduct of the agency’s or institution’s statutory mandates or programs.
17.3(a) A grievance alleging violations of this Article shall be filed directly at Step 2 by the employee or PEF, in writing on forms to be provided by the State, to the Agency Head or a designee of that Agency Head, and a copy of the grievance shall be simultaneously filed with the facility or institution head or a designee. A determination shall be issued at Step 2 as promptly as possible, but no later than 10 working days after receipt of the grievance unless PEF or the employee agrees to an extension of such time limit.
(b) Where a grievance is filed by PEF and PEF is the named grievant, either on behalf of an individual employee, or alleging out of title work by an individual employee, PEF must notify the employee of the filing of the grievance. Notice should be provided at the same time and in the same manner as notice to the agency as required in Article 17.3(a). If the employee is represented by any bargaining agent other than PEF, notice must also be provided to the appropriate bargaining agent by PEF at the same time and in the same manner as notice to the agency as required in Article 17.3(a).
(c) An appeal from an unsatisfactory decision at Step 2 may be filed by PEF through its President or the President’s designee with the Director of the Governor’s Office of Employee Relations or the Director’s designee within 10 working days of receipt of the Step 2 decision. Such appeal shall include a copy of the original grievance and the Step 2 reply. A Step 2 decision in which the remedy is only partially granted is considered an unsatisfactory decision and must be appealed in accordance with this subsection 17.3(c).
(d) After receipt of an appeal pursuant to 17.3(c), the Director of the Governor’s Office of Employee Relations or the Director’s designee will promptly forward it to the Director of Classification and Compensation for a review and determination as to whether the duties at issue are out-of-title.
(e) When a grievance is sustained in its entirety at Step 2 by the agency and a monetary award is recommended, the agency shall forward the agency’s Step 2 decision to the Director of Classification and Compensation within 15 working days of the issuance of the agency’s Step 2 decision. The agency shall include a copy of the original grievance and the agency’s Step 2 decision. Copies of these documents shall be sent to the Director of the Governor's Office of Employee Relations or the Director's designee, to the employee, and to the President of PEF or the President's designee. The Director of Classification and Compensation shall review and determine whether such duties at issue are out-of-title.
(f) The Director of Classification and Compensation will make every reasonable effort to complete such review promptly, and will send to the Director of the Governor’s Office of Employee Relations the findings as to whether the duties at issue are out-of-title.
(g) The Director of the Governor’s Office of Employee Relations, or the Director’s designee, shall issue a Step 3 determination forthwith upon receipt of the determination of the Director of Classification and Compensation based on the following:
1. The findings of the Director of Classification and Compensation as to whether the duties at issue are out-of-title.
2. If the Director of Classification and Compensation has determined the duties at issue to be out-of-title, a review by the Director of the Governor’s Office of Employee Relations, or the Director’s designee, of whether temporary emergency circumstances exist which make the assignment of such out-of-title duties appropriate.
(h) If the Director of Classification and Compensation finds the duties at issue to be out-of-title, and the Director of the Governor’s Office of Employee Relations, or the Director’s designee, finds that no temporary emergency circumstances exist, the Step 3 determination shall direct that out-of-title assignment be discontinued.
17.4(a) If such out-of-title duties are found to be appropriate to a lower salary grade or to the same salary grade as that held by the affected employees, no monetary award may be issued.
(b) If, however, such out-of-title duties are found to be appropriate to a higher salary grade than that held by the affected employee, the Director of the Governor’s Office of Employee Relations, or the Director’s designee, shall issue an award of monetary relief, provided that (a) the assignment to perform such duties was made on or after April 1, 1982, and (b) the affected employee has performed work in the out-of-title assignment for a period of one or more days. And, in such event, the amount of such monetary relief shall be the difference between what the affected employee was earning at the time he/she performed such work and what he/she would have earned at that time in the higher salary grade title, but in no event shall such monetary award be retroactive to a date earlier than 15 calendar days prior to the date the grievance was filed in accordance with this Article.
(c) If such out-of-title duties were assigned by proper authority during the continuance of a temporary emergency situation, the Director of the Governor’s Office of Employee Relations, or the Director’s designee, shall dismiss the grievance.
(d) After receipt of the Step 3 decision, PEF may, where it alleges additional facts or existence of a dispute of fact, within 30 calendar days of the date of the decision, file an appeal with the Director of the Governor’s Office of Employee Relations. Such appeal shall include documentation to support the factual allegations. The appeal shall then be forwarded by the Director of the Governor’s Office of Employee Relations to the Director of Classification and Compensation for reconsideration. The Director of Classification and Compensation shall reconsider the matter and shall, within thirty (30) calendar days, forward an opinion to the Director of the Governor’s Office of Employee Relations. The latter shall act upon such opinion in accordance with the provisions of Article 17.3(g) and (h) and 17.4(a), (b), and (c) above.
17.5(a) All submissions and responses set forth in Article 17.3 (a), (b), (c), (e) and (g) and 17.4(d) shall be submitted by certified mail, return receipt requested, or by personal service. All time limits set forth in this Article shall be measured from the date of certified mailing or of receipt by personal service. The date of certified mailing is the date appearing on the postal receipt.
(b) Working days shall mean Monday through Friday, excluding holidays, unless otherwise specified, and days shall mean calendar days. In the case of a department or agency which normally operates on a seven-day-a-week basis, reference to 10 working days shall mean 14 calendar days and reference to 15 working days shall mean 21 calendar days.
17.6 Grievances hereunder may be processed only in accordance with this Article and shall not be arbitrable.