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D.C. DEPARTMENT OF HUMAN RESOURCES
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Interim Director of the D.C. Department of Human Resources (DCHR), with the concurrence of the City Administrator, pursuant to Mayor’s Order 2008-92, dated June 26, 2008, and in accordance with the provisions of section 2401 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-624.01) (2006 Repl.); and the Balanced Budget Holiday Furlough Emergency Act of 2011, effective February 2, 2011 (D.C. Act 19-3; 58 DCR 1241), as amended by the Public Safety Civilian Emergency Personnel Furlough Exemption Emergency Amendment Act of 2011, effective March 1, 2011 (D.C. Act 19-28; 58 DCR 2587), and any similar succeeding legislation (Act), hereby gives notice of the adoption of the following emergency rules. These rules amend sections 2438, 2439, 2441 through 2446, and the definition of the term “furlough” in chapter 24, (REDUCTIONS IN FORCE), of subtitle B of title 6, (GOVERNMENT PERSONNEL), of the District of Columbia Municipal Regulations (DCMR), on an emergency basis, to implement the provisions of the Act. The Act provides for four (4) furlough days on four (4) consecutive legal public holidays beginning on Washington’s Birthday, Monday, February 21, 2011, or on alternate days, as applicable, on or before July 31, 2011. Additionally, the Act provides that employees to be furloughed shall be given a written notice of furlough of at least fifteen (15) calendar days, and exempts certain employees and independent agencies and instrumentalities. To ensure the welfare of the affected employees and the general public, action was taken on February 2, 2011, to adopt the following rules on an emergency basis effective February 2, 2011, and a Notice of Emergency and Proposed Rulemaking implementing the provisions of D.C. Act 19-3 was published at 58 DCR 1136 (February 4, 2011). However, because D.C. Act 19-28 amended D.C. Act 19-3, action was taken on March 29, 2011, to adopt the following rules on an emergency basis effective March 29, 2011, and supersedes the aforementioned emergency and proposed rules. These rules will remain in effect for up to one hundred twenty (120) days from the adoption date, March 29, 2011, unless earlier superseded by another rulemaking notice.
The Interim Director of the D.C. Department of Human Resources (DCHR), with the concurrence of the City Administrator, pursuant to Mayor’s Order 2008-92, dated June 26, 2008, and in accordance with the provisions of section 2401 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-624.01) (2006 Repl.); and the Balanced Budget Holiday Furlough Emergency Act of 2011, effective February 2, 2011 (D.C. Act 19-3; 58 DCR 1241), as amended by the Public Safety Civilian Emergency Personnel Furlough Exemption Emergency Amendment Act of 2011, effective March 1, 2011 (D.C. Act 19-28; 58 DCR 2587), and any similar succeeding legislation (Act), hereby gives notice of the intent to adopt, in not less than thirty (30) days from the date of publication of this notice in the D.C. Register, the following proposed rules. The purpose of these rules is to amend sections 2438, 2439, 2441 through 2446, and the definition of the term “furlough” in chapter 24, (REDUCTIONS IN FORCE), of subtitle B of title 6, (GOVERNMENT PERSONNEL), of the DCMR, to implement the provisions of the Act. The Act provides for four (4) furlough days on four (4) consecutive legal public holidays beginning on Washington’s Birthday, Monday, February 21, 2011, or on alternate days, as applicable, on or before July 31, 2011. Additionally, the Act provides that employees to be furloughed shall be given a written notice of furlough in at least fifteen (15) calendar days, and exempts certain employees and independent agencies and instrumentalities. Upon adoption, these rules will amend sections 2438, 2439, 2441 through 2446, and the definition of the term “furlough” in chapter 24, (REDUCTIONS IN FORCE), of subtitle B of title 6, (GOVERNMENT PERSONNEL), of the DCMR, published at 32 DCR 1182 (March 1, 1985) and amended at 37 DCR 7119 (November 9, 1990), 38 DCR 6158 (October 4, 1991), 40 DCR 2114 (March 26, 1993), 47 DCR 2425 (April 7, 2000), 50 DCR 10573 (December 12, 2003), and 55 DCR 012899 (December 26, 2008).
Chapter 24, (Reductions In Force), of subtitle B of title 6 of the District of Columbia Municipal Regulations is amended as follows:
Section 2438, (Furlough – Coverage), is amended to read as follows:
2438 FURLOUGH – COVERAGE
2438.1 Notwithstanding the provisions of 6 DCMR B § 1221.1, and except as otherwise provided in subsections 2438.3, 2438.7, 2438.8, 2439.1, 2439.2, and 2444.2 of this chapter, and pursuant to the Balanced Budget Holiday Furlough Emergency Act of 2011 (D.C. Act 19-3; 58 DCR 1241), as amended by the Public Safety Civilian Emergency Personnel Furlough Exemption Emergency Amendment Act of 2011 (D.C. Act 19-28; 58 DCR 2587), and any similar succeeding legislation (hereinafter collectively referred to as the Act), covered employees shall be furloughed for four (4) days on the following four (4) legal public holidays:
(a) Washington’s Birthday, Monday, February 21, 2011;
(b) D.C. Emancipation Day, Friday, April 15, 2011;
(c) Memorial Day, Monday, May 30, 2011; and
(d) Independence Day, Monday July 4, 2011.
2438.2 The furloughs mandated by the Act are required for budgetary reasons.
2438.3 Notwithstanding any other provision of this chapter, and pursuant to subsection 2(a)(3) of the Act, the following subordinate agencies may schedule alternate furlough days for covered employees in the same or subsequent pay periods as
the four (4) legal public holidays designated as furlough days in the Act; provided that each covered employee in these agencies shall be furloughed the required four (4) days on or before July 31, 2011:
(a) Employees of the Department of Youth Rehabilitation Services working at the Youth Services Center and at New Beginnings;
(b) Correctional personnel in the Department of Corrections at the Central Detention Facility;
(c) Employees of the Office of Unified Communications; and
(d) Employees of the Office of the Medical Examiner.
2438.4 For the purposes of sections 2438, 2439, 2443, 2444, and 2445 of this chapter, the term “covered employee” means employees covered by the Act.
2438.5 Covered part-time employees shall be furloughed for a prorated number of hours within the pay period of the four (4) legal public holidays statutorily-mandated as furlough days in the Act, or alternate furlough days in any subsequent pay period. Each alternate furlough day scheduled for a covered part-time employee shall occur on or before July 31, 2011.
2438.6 The furlough days of a covered union employee whose collective bargaining agreement includes language precluding furloughs on legal public holidays shall be scheduled on alternate furlough days within the pay period of the four (4) legal public holidays statutorily-mandated as furlough days in the Act, or alternate furlough days in any subsequent pay period. Each alternate furlough day scheduled for an employee described in this subsection shall occur on or before July 31, 2011.
2438.7 Notwithstanding any other provision in this chapter, the following shall apply to the furloughing of District government employees who have been continuously employed by the District government since January 1, 1980:
(a) By law, individuals who have been continuously employed by the District government since January 1, 1980, are guaranteed rights and benefits “at least equal to” those they possessed on January 1, 1980. Paid holidays are a concrete entitlement for such employees. Accordingly, a covered employee who is a “pre-January 1, 1980” employee shall not be furloughed on the following three (3) legal public holidays observed as of January 1, 1980:
(1) Washington’s Birthday;
(2) Memorial Day; and
(3) Independence Day.
(b) In lieu of furlough on Washington’s Birthday, Memorial Day, and Independence Day, a pre-January 1, 1980 covered employee shall be furloughed on three (3) alternate furlough days within the same or subsequent pay periods as Washington’s Birthday, Memorial Day, and Independence Day. Each alternate furlough day scheduled for a pre-January 1, 1980 covered employee shall occur on or before July 31, 2011.
(c) A pre-January 1, 1980 covered employee is not exempt from furlough on D.C. Emancipation Day, Friday, April 15, 2011, as this legal public holiday was not observed as of January 1, 1980.
(d) A pre-January 1, 1980 covered employee who would have otherwise been scheduled to work on D.C. Emancipation Day shall be scheduled for furlough on an alternate day within pay period number 9 (April 10, 2011 through April 23, 2011), or on an alternate furlough day in any subsequent pay period on or before July 31, 2011.
2438.8 An individual who is newly hired into a covered position after any of the four (4) legal public holidays statutorily-mandated as furlough days under the Act shall be furloughed beginning with the first legal public holiday or alternate furlough day following his or her entrance-on-duty date, in accordance with the provisions of sections 2438, 2439, 2443, 2444, and 2445 of this chapter. Each new hire as described in this subsection shall be issued a timely furlough notice as provided in section 2444 of this chapter.
2438.9 A covered employee whose salary is paid in whole or in part by the federal government shall be scheduled for furlough as any other covered employee, as specified in sections 2438, 2439, 2443, 2444, and 2445 of this chapter.
Section 2439, (Furlough – Exemptions), is amended by amending subsection 2439.1 to read as follows; and adding new subsection 2439.2 to read as follows:
2439 FURLOUGH – EXEMPTIONS
2439.1 The following employees are exempt from furlough:
(a) Uniformed members of the Metropolitan Police Department;
(b) Emergency medical services personnel of the Fire and Emergency Medical Services Department;
(c) Employees occupying positions subject to a court order that specifically excludes such positions from furloughs; and
(d) Employees whose salaries are paid in whole or in part by the federal government pursuant to federal laws, regulations, or other provisions that prohibit furloughs in general, or on legal public holidays. However, if such prohibition is limited to furloughs on legal public holidays, the employees, if otherwise covered under the Act, shall be furloughed on alternate furlough days as specified in sections 2438, 2443, 2444, and 2445 of this chapter.
2439.2 In addition to the categories of employees listed in subsection 2439.1 of this section, the Act exempts the following entities and independent agencies:
(a) Not-for-Profit Hospital Corporation;
(b) District of Columbia Housing Authority;
(c) District of Columbia Housing Finance Agency;
(d) Washington Convention and Sports Authority; and
(e) District of Columbia Water and Sewer Authority.
Section 2441, (Approval or Directive to Conduct a Furlough), is repealed.
Section 2442, (Requests to Conduct a Furlough), is repealed.
Section 2443, (Scheduling a Furlough), is amended by amending subsection 2443.1 to read as follows:
2443.1 Part-time covered employees shall have their furlough hours prorated.
Section 2444 (Notice of Employees of a Furlough) is repealed and replaced with the following:
2444 FURLOUGH NOTICE
2444.1 Pursuant to the Act, each covered employee shall be provided a fifteen (15) calendar days’ written notice of the statutorily-mandated four (4) furlough days specified in subsection 2438.1 of this chapter before the employee’s first scheduled furlough day. The original furlough notice may be hand delivered to the covered employee or transmitted via First Class mail if the employee is not in a duty status or otherwise present.
2444.2 Pursuant to subsection 2(e)(2) of the Act, if a covered agency is unable to give a covered employee a fifteen (15) calendar days’ notice of the furlough before his or her first furlough day, or is unable to schedule a statutorily-mandated furlough as required in subsection 2438.1 of this chapter, the agency, in consultation with the applicable personnel authority, shall schedule alternate furlough days for the covered employee that shall occur on or before July 31, 2011.
2444.3 When computing the fifteen (15) calendar day notice period, the day that the employee receives the furlough notice via hand delivery (or the date that the notice is mailed, if applicable), shall be excluded from the computation. The employee’s first scheduled furlough date is excluded from the computation.
2444.4 For the purposes of sections 2438, 2439, 2443, 2444, and 2445 of this chapter, the term “alternate furlough days” means alternative furlough days scheduled as furlough days different than the four (4) legal public holidays statutorily-mandated as furlough days under section 2(a)(2) of the Act. Alternate furlough days may be scheduled in the same pay periods as the four (4) statutorily-mandated legal public holidays, or in subsequent pay periods, as appropriate, but in all instances, shall occur on or before July 31, 2011.
2444.5 If the written furlough notice provided to a covered employee is sufficient to provide a fifteen (15) calendar days notice of a certain furlough day but not for another, the covered employee may waive, in writing, the fifteen (15) day notice for the furlough day outside the notice period. Absent a waiver, an alternate furlough day must be scheduled in place of the furlough day outside the notice period. Moreover, the covered employee must be provided fifteen (15) calendar days notice of the alternate furlough day in writing via hand delivery, facsimile, electronic mail, or First Class mail. This writing need not be in the form contemplated by the templates of furlough notices provided to covered agencies by the applicable personnel authority as provided in subsection 2445.2 of this chapter.
Section 2445, (Content of Furlough Notice), is amended to read as follows:
2445 CONTENT OF FURLOUGH NOTICE
2445.1 A furlough notice may include:
(a) The covered employee’s name;
(b) The date of the furlough notice;
(c) The covered employee’s designated furlough days (the statutorily-mandated four (4) legal public holidays or, where applicable, any alternate furlough days selected in place of the statutorily-mandated furlough days);
(d) The tour of duty hours for each furlough day, or alternatively;
(e) Any other information reasonably calculated to give the employee notice of the furlough.
2445.2 The personnel authority shall provide to each covered agency templates of furlough notices to be issued to covered agency employees to be furloughed that include the information enumerated in subsection 2445.1 of this section.
Section 2446, (Appeal of a Furlough), is repealed.
The definition of the term “Furlough” in Section 2499 is amended to read as follows:
Furlough – the temporary involuntary placement of certain District government employees in a non-duty, non-pay status in accordance with the provisions of the Act, for the reason set forth in subsection 2438.2 of this chapter.
Comments on these proposed regulations should be submitted, in writing, to Ms. Shawn Y. Stokes, Interim Director, D.C. Department of Human Resources, 441 4th Street, N.W., Suite 300S, Washington, D.C. 20001 within thirty (30) days of the date of publication of this notice in the D.C. Register. Additional copies of these proposed regulations are available from the above address.
