Title of Regulation: 22VAC40-675. Personnel Policies for Local Departments of Social Services (amending 22VAC40-675-10, 22VAC40-675-20, 22VAC40-675-40, 22VAC40-675-50, 22VAC40-675-90 through 22VAC40-675-140, 22VAC40-675-180, 22VAC40-675-200, 22VAC40-675-210, 22VAC40-675-220).

Statutory Authority: §§ 63.2-217 and 63.2-219 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: June 29, 2016.

Effective Date: July 15, 2016.

Agency Contact: Lori Schamerhorn, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7264, FAX (804) 726-7027, or email lori.schamerhorn@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia provides the State Board of Social Services the general authority for the development of regulations to carry out the purposes of Title 63.2 of the Code of Virginia. Section 63.2-219 of the Code of Virginia gives the board authority to specify the requirements for the administration of personnel by a local department of social services under Title 63.2 of the Code of Virginia.

Purpose: The amendments are necessary to make the requirements of the regulations consistent with the requirements of state law, to accurately cite federal law, and to make technical corrections. The regulations provide the personnel policies under which local departments of social services operate. Personnel policies that comply with state and federal law ensure appropriate oversight of local department employees who are providing vital services, which protects the health, safety, and welfare of citizens.

Rationale for Using Fast-Track Rulemaking Process: Section 2.2-4012.1 of the Code of Virginia allows state agencies to use a fast-track rulemaking process to expedite regulatory changes that are expected to be noncontroversial. The amendments to the regulations incorporate requirements of state law, cite federal law, and make technical corrections. As a result, no objections are anticipated.

Substance: The changes are necessary to make the requirements of the regulations consistent with the requirements of state law, to accurately cite federal law, and to make technical corrections. There are no substantive changes.

Issues: The advantage of this regulatory action to the agency and to the public is that it makes the requirements of the regulations consistent with the requirements of state law and clarifies the requirements for local boards and local departments. There are no disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to remove sanctions language from this regulation, clarify that the Board's approval is needed for a local department of social services to deviate from state policies, and update the rest of the regulation for clarity.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for one change. The benefits likely exceed the costs for other proposed changes.

Estimated Economic Impact. This regulation establishes personnel policies for local departments of social services. One of the proposed changes will remove language providing authority to the Department of Social Services (DSS) to impose financial sanctions or require reimbursement of funds if a local department violates provisions of this regulation. DSS indicates that the sanctions issue will be addressed in a separate regulatory action and the Office of the Attorney General (OAG) has requested that the language be removed. According to DSS, no sanctions have been imposed at least in the last ten years. Some recoveries, though few, have been made over the years. Only two of the recoveries were significant in amount. However, DSS has declined to reveal the rationale for the proposed removal of the sanctions language from the regulation. Without knowing the issue the proposed change is intended to address, the economic impact of this change cannot be ascertained with the information available at this time.

Another proposed change will clarify that a local department is required to obtain approval from the Board to follow specific local jurisdiction policies rather than Board policies outlined in the administrative manual. According to DSS, OAG has determined that the Board's approval is mandatory for any areas listed in the regulation which cover performance evaluation, standards of conduct, leave policies, holiday schedule, inclement weather, probationary period, layoff, classification and/or compensation, affirmative action, and political activity. Previously only classification, compensation, and jurisdiction wide changes were sent to the Board for approval. Other deviations were reviewed and approved by DSS human resources staff for comparability to the Board policy; the analysis was provided to the Board, but was not submitted to the Board for approval. As a result, the proposed change which was implemented in October 2015 is expected to result in an additional five deviation requests requiring Board approval. This change may create small administrative costs associated with the required Board approval, but will also provide an additional layer of review by the Board itself.

Remaining changes update the regulation to reflect changes in the state law and state classification plan, for accurate citation of federal law, for clarity, and to correct grammatical errors. No significant economic effect is expected from these remaining changes other than improving the clarity of the regulation.

Businesses and Entities Affected. The proposed regulation applies to 120 local departments of social services. These local departments currently have 8548 employees.

Localities Particularly Affected. The proposed changes apply statewide.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment based on the information available.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected based on the information available.

Real Estate Development Costs. No impact on real estate development costs is expected based on the information available.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation does not impose costs or other effects on small businesses based on the information available.

Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected based on the information available.

Adverse Impacts:

Businesses. The proposed regulation does not have an impact on non-small businesses based on the information available.

Localities. The proposed regulation will not adversely affect localities based on the information available.

Other Entities. The proposed regulation will not adversely affect other entities based on the information available.

Agency's Response to Economic Impact Analysis: The Department of Social Services reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comments.

Summary:

The amendments (i) remove sanctions language, (ii) clarify that the approval of the State Board of Social Services is necessary for a local department of social services to deviate from state policies, and (iii) make technical corrections.

Part I
General Provisions

22VAC40-675-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative manual" means the Human Administrative/Human Resources Manual for Local Departments of Social Services, dated October 19, 2011, last revised May 1, 2015, Virginia Department of Social Services, which outlines the personnel policies and procedures.

"Board" means the State Board of Social Services.

"Classification" means the systematic grouping of positions based on shared characteristics.

"Commissioner" means the Commissioner of the Virginia Department of Social Services, his designee, or authorized representative.

"Department" means the State Virginia Department of Social Services.

"Deviate" means to adopt all or portions of the local jurisdiction jurisdiction's personnel policies instead of using policies and procedures outlined in the administrative manual.

"Jurisdiction" or "local jurisdiction" means the city, county, or town under which the local department is a governmental unit.

"KSA" means a knowledge, skill, or ability needed to perform the duties of a position.

"Local board" means the local administrative board of social services representing one or more counties or cities.

"Local compensation plan" is means the locally developed compensation schedule that lists occupational titles, and salary bands/tiers ranges from the minimum to the maximum amounts established for each bands/tiers, band and tier and includes other pay actions.

"Local department" means the local department of social services of any city or county of this Commonwealth.

"Local director" means the director or his designated representative of the a local department of the social services for a city or county.

"Merit system plan" means those regulations adopted by the board in the development and operation of a system of personnel administration meeting requirements of the federal Department of Health and Human Services as relates to compliance with federal merit system standards set forth in the Code of Federal Regulations (5 CFR Part 900).

"Occupational group description" means a detailed statement that describes the characteristic elements of each occupational level within the occupational group.

"Salary range" means the range that identifies the minimum and maximum compensation rate authorized for a specific pay band and a specific tier within the pay band.

"State classification plan" means the department's classification plan that consists of approved occupational titles and their corresponding groups, salary grades pay bands, tiers, classification codes, equal employment opportunity codes, and effective dates.

"State compensation plan" means the department's pay plan, which provides local departments a basis for developing local compensation plans.

22VAC40-675-20. Local department designation.

A. Local departments are designated as Levels I through VI III. The level of a local department is based on the occupational title assigned to the local director. The level assigned to the local director is determined by the management structure, number and types of authorized positions, and mandated and nonmandated social services programs in the administration of social services programs by the local department.

B. The levels are used in the development and approval of the local department classification and compensation plans.

22VAC40-675-40. Inclusion in local jurisdiction personnel plans.

A. It is the policy of the board to allow local department employees to be included in the approved local jurisdiction personnel plans instead of utilizing personnel policies outlined in the Administrative Manual administrative manual.

B. Comprehensive jurisdiction plans shall meet merit system standards and be comparable to personnel policies included in the Administrative Manual administrative manual. Specific personnel functions that must be included in the local jurisdiction personnel plans are listed in the Administrative Manual administrative manual.

C. Such plans must be documented to the satisfaction of the board.

D. The board must approve a jurisdiction personnel plan prior to the inclusion of local department employees in the a jurisdiction's personnel plan prior to inclusion.

22VAC40-675-50. Adoption of specific policies of the local jurisdiction.

A. A local department, upon approval by the local board, may request approval to deviate from state policies by adopting follow specific local jurisdiction policies instead of using the personnel policies and procedures outlined in the Administrative Manual administrative manual. The following local policy options may be requested on the Local Policy Request Form:

1. Performance evaluation;

2. Standards of conduct;

3. Leave policies;

4. Holiday schedule;

5. Inclement weather;

6. Probationary period; or

7. Layoff.;

8. Classification, compensation, or classification and compensation;

9. Affirmative action; or

10. Political activity.

B. Local policy options also exist for classification, compensation and affirmative action.

C. B. When the local department wants to exercise one or more of the allowable options, it must obtain required approvals and submit the required forms to the department in accordance with the Administrative Manual administrative manual. The commissioner will provide his analysis to the board, and the deviation request shall be presented to the board for action.

D. C. When policy changes a local department desires to revert from the previously approved local jurisdiction human resources policy to the personnel policy set forth in the administrative manual, the local department shall submit a Local Policy Request Form to the department notify the department by submitting an updated Human Resource Policy Record form.

22VAC40-675-90. Local compensation plans.

A. A local department, upon approval by the local board, shall have flexibility in developing the local compensation plan to select salary ranges within the approved state compensation plan that are suitable to local situations. The range for each occupational title shall provide local minimum and maximum rates. The local plan shall ensure that local minimum salary rates do not fall below the state compensation plan minimum salary for that occupational title. A request to modify salary ranges within the state minimum and maximum rates does not constitute a deviation as described in 22VAC40-675-110.

B. A local compensation plan shall include policies and procedures for awarding salary increments, merit increases, special compensation for child and adult protective service work, employee or position status changes, and any other type of approved increases. Salary determinations shall be rendered in a fair and consistent manner to ensure equal pay for equal work.

C. All requested position actions by local departments must be reviewed and approved by the department prior to implementation.

D. Midyear changes to the local compensation plan must be submitted to the department for review and approval.

E. Local compensation policies and practices shall comply with federal and state laws including the federal Fair Labor Standards Act (29 USC §§ 201-219) § 201 et seq.), the Administrative Manual administrative manual, and procedures provided by the department.

22VAC40-675-100. Other local compensation issues.

A. In localities where the governing body has elected to have a director of social services serve as the local board, reimbursement for governing body assigned expenses shall be in accordance with § 63.2-310 of the Code of Virginia.

B. Provisions shall be made for overtime worked in accordance with the Fair Labor Standards Act (29 USC §§ 201-219) § 201 et seq.). The reimbursement shall be up to the reimbursable maximum of the applicable state occupational title.

C. Provisions shall be made for other types of compensation as deemed necessary by the board and set forth in the administrative manual.

D. Local departments with approved deviating compensation plans will also be reimbursed up to the maximum of the applicable state position occupational title. When the local deviating maximum exceeds the state reimbursable maximum, local-only funds shall be used to compensate for overtime and any federal funds that are available and appropriate for such use.

C. E. Reimbursements shall be made for absences that result from the closing of local departments' operations because of inclement weather conditions or other authorized closing.

D. F. Bonuses for employees of local departments of social services shall be consistent with § 15.2-1508 of the Code of Virginia and with procedures provided by the department.

22VAC40-675-110. Deviations from state classification or compensation plans.

A. The board may approve A local department's request for deviation from the state classification plan and state compensation plans plan shall be made to the board.

B. Deviation requests may be either for classification, classification and compensation, or compensation only. When the local department wants to exercise one of these options, it must obtain required approvals and submit the required forms to the department in accordance with the administrative manual. The commissioner will provide his analysis to the board.

C. Local departments shall submit required forms as specified in the Administrative Manual administrative manual when requesting deviation from the state classification plan, classification and compensation plans plan, or compensation plan.

22VAC40-675-120. Sanctions Reviews.

A. Policies Personnel policies and practices by the local departments are subject to review or audit by the department.

B. Reviews may include but not be limited to the assessment and analysis of personnel data, records, reports, systems, and feedback from local department employees.

C. When the department finds that a local department has not complied with or has violated the provisions of this regulation, the department may impose financial sanctions or require reimbursement of funds. Funds may be withheld until such time as deemed necessary for the proper administration of the local compensation plan.

Part III
Recruitment and Selection of Local Department Employees

22VAC40-675-130. General hiring provision.

A. Recruitment, selecting selection, and advancing advancement of employees shall be on the basis of their relative ability, knowledge, and skills, including open consideration of qualified applicants for original appointment assuring fair treatment of applicants and employees in all aspects of personnel administration and with proper regard to their privacy and constitutional rights as citizens. This fair treatment principle includes compliance with the federal equal employment opportunity and nondiscrimination laws.

B. The department shall determine the application process and employment forms to be used by all applicants for original appointment, promotion, demotion, transfer, and reemployment.

C. In accordance with § 63.2-325 of the Code of Virginia, the commissioner shall provide a list of eligible candidates for the position of local director to the local board or other appropriate appointing authority.

D. The board shall place the responsibility of the final selection process of local department employees with the local director and local board.

E. Local departments adopting local jurisdiction personnel plans shall follow the provisions of the city, county, or town of which they are a governmental unit.

Part IV
Employee Status

22VAC40-675-140. Employee status in the merit system plan.

A. Status defines the employee's permanency in the system as it relates to benefits and the use of grievance policies.

B. The types of employee status included in the merit system plan are probationary, nonprobationary regular, restricted, temporary, and emergency.

C. Local departments shall provide benefits in accordance with the requirements of the Administrative Manual administrative manual.

Part VI
Equal Employment Opportunity

22VAC40-675-180. Equal employment opportunity.

A. The board promotes equal employment opportunity in the recruitment and selection process by ensuring that qualification requirements are job-related and that such requirements do not limit or restrict employment opportunities because of race, color, religion, sex, age, disability, national origin, or political affiliation (except where sex or age is a bona fide occupational qualification).

B. All local departments shall prepare their own affirmative action plan in accordance with the Administrative Manual, administrative manual or comply with a written local jurisdiction plan that provides an aggressive, coherent management program for equal employment for all employees and applicants for employment.

C. Employees or applicants for employment who believe that they have been discriminated against may file a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Services, James Monroe Building, 101 North 14th Street, Richmond, Virginia 23219.

D. All local departments are required to cooperate fully with the Office of Equal Employment Services when they are conducting or any other official investigations investigation of charges of discrimination. Cooperation includes providing papers, notes, documents, and any other written material, and responding to questions deemed necessary by that office to investigate the charge.

Part VIII
Grievance Procedure

22VAC40-675-200. Employee grievance procedure.

Local departments not included in their jurisdiction's grievance procedure shall develop their own in accordance with the Administrative Manual. This A local department or local board shall adopt a grievance procedure that is either (i) adopted by the locality in which the local department or local board is located, or in the case of a regional department or board, the grievance procedure adopted by one of its localities in the regional organization or (ii) approved by the state board. The board-approved grievance procedure in the administrative manual shall be consistent with the provisions of Chapter 10 (§ 2.2-1000 30 (§ 2.2-3000 et seq.) of Title 2.2 of the Code of Virginia. The grievance procedure adopted by the local department or local board shall apply to employees, including local directors, of the local boards and local departments.

Part IX
Other Employee Relations Policies

22VAC40-675-210. Political activity.

A. No local department employee shall make use of his official authority or influence to:

1. Interfere with or affect the result of a nomination or election to public office or position;

2. Directly or indirectly coerce, command, or advise a state or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or

3. Be a candidate for public elective office in a partisan primary, general, or special election.

B. The local department's provisions on political activity are shall be consistent with the federal Hatch Act (5 USC §§ 1501-1509) 1501-1508) and facilitate effective control of prohibited political activity by employees.

C. In general, the Hatch Act covers officers or employees of a state or local department if their principle employment is in connection with an activity that is financed in whole or in part by loans or grants made by a federal agency. An employee subject to political activity laws continues to be covered by these laws and regulations while on annual leave, sick leave, leave without pay, administrative leave, or furlough.

D. Local boards shall adopt these provisions or, instead, adopt the provisions of the local governmental jurisdiction consistent with the federal Hatch Act. The board shall promulgate policy consistent with these provisions. Local departments may request to deviate to local jurisdiction political activity policy that is consistent with the federal Hatch Act. When the local department wants to exercise this option, it must obtain required approvals and submit the required forms to the department in accordance with the administrative manual. The commissioner will provide his analysis to the board, and the deviation request shall be presented to the board for action.

22VAC40-675-220. Outside employment of local department employees.

A. Employees in local departments shall not engage in any other employment, any private business, or in the conduct of a profession that interferes with their usefulness as an employee employees or with their work performance during normal working hours and their work performance, or shall not be in violation of Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia.

B. If an employee desires to seek or be engaged in outside employment, the employee must first obtain approval from the local director. If the local director desires to seek or be engaged in outside employment, the local director must first obtain approval from the local board. A local director who serves as the local board and desires to seek or be engaged in outside employment must first obtain approval from the elected governing body or its designee.

C. If an employee accepts employment outside the agency local department without receiving prior approval, the employee will be subject to disciplinary action under the standards of conduct.

FORMS (22VAC40-675)

Local Policy Request, Form 032-10-0161-05-eng (rev. 3/14)

Jurisdiction Wide Self-Analysis, Form 032-10-0165-02-eng (rev. 1/14)

Human Resource Policy Record, Form 032-10-0162-02-eng (eff. 11/13)

Classification and Compensation Self-Analysis Form for Local Departments of Social Services, 032-10-0175-00-eng (rev. 9/2015)

Human Resource Policy Record, 032-10-0162-04-eng (rev. 10/2015)

Jurisdiction Wide Self-Analysis Form, 032-10-0165-03-eng (rev. 9/2015)

Local Policy Request Form, 032-10-0161-06-eng (rev. 9/2015)

DOCUMENT INCORPORATED BY REFERENCE (22VAC40-675)

Human Resource Manual for Local Departments of Social Services, Virginia Department of Social Services, revised July 1, 2009.

Administrative/Human Resources Manual for Local Departments of Social Services, dated October 19, 2011, last revised May 1, 2015, Virginia Department of Social Services