October 23, 2009
RE: Update on Furloughs
Dear Mayor :
This letter will update you with respect to the status of furloughs and temporary layoffs.
As you know, in March, 2009, the Civil Service Commission adopted an Emergency Regulation providing for temporary layoffs including staggered layoffs.
The Emergency Regulation was challenged at the Appellate Division, which found that a decision to layoff all employees in a layoff unit even on a temporary basis to be a managerial prerogative. The Court also stayed enforcement of the regulation concerning staggered layoffs pending consideration of the issues as to the scope of negotiations before the Public Employment Relations Commission (PERC). The PERC Commission designee found that the PERC was bound to follow the Court’s ruling that a temporary layoff of all employees in the layoff unit is an exercise of managerial prerogative and not subject to negotiations. However, as to the staggered layoffs, the Designee found that there was no need for PERC to issue a ruling with respect to negotiability of such action since there were no planned staggered layoffs in May 2009. However, the PERC designee did find that a non-civil service jurisdiction is restrained from unilaterally implementing temporary furloughs and reducing certain positions from full-time to part-time without negotiations.
In August 2009, the Civil Service Commission voted to propose the repeal of the Emergency Regulation and to stay that regulation pending its eventual repeal. The repeal of the regulation is presently in the notice and comment phase. The Civil Service Commission’s decision to repeal the Emergency Regulation does not eliminate an appointing authority’s ability to implement temporary layoffs. Rather, the authority to temporarily close an entire layoff unit proceeded, and still exists independently of, the regulation the Civil Service Commission is repealing. Thus, as long as the temporary layoff is accomplished through the complete closure of an entire layoff unit, temporary layoffs are permissible under civil service law and PERC law. In a department targeted for temporary layoffs, exemptions for certain employees (i.e., police and fire) or staggered furloughs are not allowed. Departments that cannot shutdown entirely cannot be targeted in a temporary layoff plan.
If you have any questions, please contact Matt Weng at 609-695-3481, ext. 137.
Very truly yours,