Automatic Resignation (AWOL)

Legal Authority

Government Code section 19996.2 and Rule 599.826.

DPA Rule

Absence without leave (AWOL) for five consecutive working days, whether voluntary or involuntary, is considered an automatic resignation from State service as of the last day the employee worked. An AWOL-resigned employee may file a request for reinstatement with DPA. Reinstatement will be granted only if the employee provides a satisfactory explanation as to the cause of the absence and his/her failure to obtain leave, and it is found that he/she is ready, able, and willing to discharge his/her duties or has obtained his/her former employer's approval for a leave of absence.

Notice Required by Appointing Power

A notice of automatic resignation may be sent after an employee has been absent without permission (i.e., AWOL) for five consecutive working days. The notice should inform the employee of the facts relied upon by the appointing power to invoke the AWOL statute and of the employee's right to respond to the appointing power at a Coleman hearing (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102). Finally, the notice should inform the employee of the right to make a request for reinstatement directly to DPA.

Time Limits

When an employer notifies an employee in writing of his/her AWOL resignation, and the employee wishes to appeal that AWOL resignation, the employee must file a written request for reinstatement with DPA within 15 days of service of the notice. If an employee is served an AWOL notice by mail, five additional days should be added when determining the date of service. See California Government Code section 18575.

However, an employer is not required to provide written notice to the employee. When an employer does not send a notice of AWOL resignation, the time for an employee to file a request for reinstatement is statutorily extended to 90 days from the effective date of separation.

The time limit for filing an appeal may be extended for 30 days if good cause for the delay is shown.

Type of Hearing

Full evidentiary hearing. The proposed decision of the ALJ is subject to final review by the Director of DPA or his designee.

Issues

The employee bears the burden of proof to satisfactorily explain: (1) why he/she was absent; (2) why he/she failed to obtain leave; and (3) that he/she is ready, able, and willing to return to work or has obtained the employing department's approval for a leave of absence. The employee may be reinstated only if he/she provides satisfactory explanations to all three criteria listed above. The employee is not entitled to back salary if reinstated.

Note: Issues of whether the AWOL statute was applied properly by the employer and/or whether a Coleman hearing was given are for the Superior Court to resolve. They are not within the authority of DPA, and should not be raised before the ALJ.

Contract Variations

Unit 1 (SEIU) Professional, Administrative, Financial and Staff Services - Article 6.13

Unit 3 (SEIU) Professional Educators and Librarians - Article 6.13

Unit 4 (SEIU) Office and Allied - Article 6.13

Unit 10 (CAPS) Professional Scientific - Article 19.1

Unit 11 (SEIU) Engineering and Scientific Technicians - Article 6.13

Unit 14 (SEIU) Printing and Allied Trades - Article 6.13

Unit 15 (SEIU) Allied Services - Article 6.13

Unit 17 (SEIU) Registered Nurses - Article 6.13

Unit 20 (SEIU) Medical and Social Services - Article 6.13

Unit 21 (SEIU) Education Consultants and Library - Article 6.13

In any hearing of an automatic resignation (AWOL) pursuant to Government Code section19996.2, the hearing officer shall have the discretion to award back pay. Once adopted by Department of Personnel Administration, the hearing officer's decision with respect to back pay shall be final and is neither grievable nor arbitrable under any provision of this Contract, nor may it otherwise be appealed to a court of competent jurisdiction. This provision does not alter nor affect the right to bring a legal challenge or appeal of the other aspects of the hearing officer's decision as provided in law. This does not otherwise limit or expand any other authority of the hearing officer under Government Code section 19996.2.

Unit 12 (IUOE) Craft and Maintenance - Article 15

Unit 13 (IUOE) Stationary Engineers - Article 6

The Board of Adjustment shall, by majority vote, sustain or revoke automatic resignations. In the event that the Board of Adjustment deadlocks (2 to 2 vote) on an appeal of an automatic resignation, and if parties cannot resolve the tie vote, the matter can be appealed within ten (10) days in writing to the Department of Personnel Administration, Statutory Appeals Unit, for hearing.

Unit 18 (CAPT) Psychiatric Technicians - Article 9.12

An automatically resigned employee may appeal to DPA within 30 days from the effective date of the AWOL termination. The ALJ shall decide the following: (1) whether the employee was absent for five consecutive work days; (2) whether that absence was without leave, i.e., without the permission of the employee's appointing power to be absent; (3) whether the employee has a satisfactory explanation for his/her absence; (4) whether the employee has a satisfactory explanation for failing to obtain leave; (5) whether the employee is ready, willing, and able to return to work and/or, if not, whether the employee has leave from his/her appointing power to be absent; and (6) whether the appointing power properly applied the AWOL statute.

The ALJ may order reinstatement only if the employee establishes satisfactory reasons for the absence and the failure to obtain leave and if the employee is ready, willing, and able to return to work or has leave to be absent.

If the AWOL statute was applied properly by the appointing power and the employee is reinstated, the employee shall receive no back pay for the period of his/her absence. If the AWOL statute was improperly applied by the appointing power, the ALJ may order the employee reinstated and may order back pay. From any such back pay award, there shall be deducted compensation that the employee earned, or reasonably could have earned, during any period of absence. There shall be no back pay for any period when the employee was not ready, willing, and able to return to work.

BU 19 (AFSCME) Health and Social Services/Professionals - Article 15.12

An employee may be separated pursuant to California Government Code Section 19996.2 (the AWOL statute) if he/she is absent for five consecutive work days without leave to be absent. An employee separated pursuant to the AWOL statute shall be afforded an opportunity for a Coleman hearing by his/her appointing power within five (5) working days after notice of the separation.

Appeals from an AWOL separation shall be handled through the grievance and arbitration procedure of this collective bargaining agreement.

If a request for reinstatement goes to an arbitration hearing, the arbitrator shall decide the following: (1) whether the employee was absent for five consecutive work days; (2), whether that absence was without leave, i.e., without the permission of the employee's appointing power to be absent; (3) whether the employee has a satisfactory explanation for his/her absence; (4) whether the employee has a satisfactory explanation for failing to obtain leave; and (5) whether the employee is ready, willing, and able to return to work, and/or, if not, whether the employee has leave from his/her appointing power to be absent.

The arbitrator may order reinstatement only if the employee establishes satisfactory reasons for the absence and the failure to obtain leave and if the employee is ready, willing, and able to return to work or has leave to be absent.

If the AWOL statute was applied properly by the appointing power, and the employee is reinstated, the employee shall receive no back pay for the period of his/her absence.

If the AWOL statute was improperly applied by the appointing power, the arbitrator may order the employee reinstated and may order back pay. From any such back pay award, there shall be deducted compensation that the employee earned during any period of absence. There shall be no back pay for any period when the employee was not ready, willing and able to return to work.

Updated October 31, 2007 at 11:43 AM.