AWOL Permanent-Intermittent Employee

Legal Authority

Government Code sections 19996.2 and 19842.5 and Rule 599.828.

DPA Rule

In addition to an AWOL resignation under Section 19996.2, employees who are employed on an intermittent time base may be AWOL resigned under Rule 599.828. That rule provides that the employing department may automatically separate a permanent-intermittent employee who waives three requests to work (a three-waiver AWOL). An employee may appeal the three-waiver AWOL on the grounds that the waivers were excusable because the employee was unable to work due to illness or other good reason.

Note: Government Code section 19100.5 and SPB Rule 448 provide for the separation of permanent-intermittent employees who do not work for over one year. DPA does not hear these cases.

Notice Required by Appointing Power

An appointing power is not required to warn the employee prior to his/her three-waiver AWOL resignation. However, the appointing power is required to notify the employee of his/her separation. The final notice informs the employee of the facts upon which the appointing power relies and of the employee's right to request reinstatement directly to DPA. The appointing power may give the employee a Coleman-like hearing, but it is not required.

Time Limits

DPA has interpreted Rules 599.828 and 599.904 to allow the employee 30 days from the date of receipt of the notice of resignation to appeal a three-waiver AWOL resignation.

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 review by the DPA Director or his designee.

Issues

Whether there were three unexcused waivers. The waivers need not be consecutive. However, the employing department must be reasonable in its accounting of waivers. Depending upon the circumstances, counting waivers which are months or years old might not be reasonable. If Rule 599.828 was improperly applied, reinstatement will be granted.

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.