0800 Classification and Compensation

0850(E) NON-REPRESENTED EMPLOYEES

.1 BACKGROUND

.110 Statutory Authority

.111 Article 14 of the Civil Service Law, entitled The Public Employees Fair Employment Act (also known as the Taylor Law – September 1, 1967), provides that employees in certain positions are excluded from the right to belong to an employee organization for the purpose of negotiating terms and conditions of employment.

.120 Non-Represented Employees

.121 Unit 06 – Managerial/Confidential (M/C): Such employees are excluded when it is found that their position is either Managerial or Confidential as defined in Section 201.7 of the Civil Service Law. 

1. Managerial Designation Criterion:
   1. Participation in the formulation of policy:  Formulating policy means having a direct and powerful influence at the highest level in determining the objectives of government or the agency and the means of achieving those objectives.  Incumbents must participate regularly in the essential decision making processes that result in policy proposals, selecting among options, and the decision to implement such policies.  It does not extend to determining methods of operation that are merely of a technical nature.
   2. Participation in collective negotiations:  Participation in collective negotiations requires direct involvement in or being a part of the preparation for collective negotiations, including the formulation of positions or proposals so as to be part of the decision making process
   3. Major role in the administration of negotiated agreements:  Major role in the administration of negotiated agreements means the responsibility to interpret the agreement both within and outside the grievance process, and includes only those whose authority in labor relations goes beyond traditional supervisory concerns.  Supervisors who take part in first step grievance decisions do not meet this criterion if the decisions conform to policy or interpretations made at a higher level.
   4. Major role in personnel administration:  Major role in personnel administration requires the exercise of independent judgment and cannot be clerical or routine in nature.  Incumbents who, due solely to their supervisory responsibilities, are required to carry out personnel policies, do not meet this criterion.
2. Confidential Designation Criteria:
   1. Confidential designations may apply only to those working in a confidential capacity to managerial individuals in the personnel or labor relations areas described above and not to those who formulate policy.  Such individuals must have regular access and exposure to information related to personnel matters and contract negotiations and administration.

.122 Unit 71 – Casual: Employees in certain positions are not considered a “public employee” for the purpose of representation under the Taylor Law. Casual employment is defined using the following standards:

1. Seasonal Casual Positions:
   1. The employment is seasonal in nature, shorter than six weeks a year. (or)
   2. The employment requires fewer than 20 hours a week. (or)
   3. Fewer than 60% of the employees in the title return for at least two successive seasons.
2. Non-Seasonal Casual Positions:
   1. The length of employment is less than six weeks. (or)
   2. The employment is to be occasional and intermittent and not expected to total more than six weeks per year.

.2 PROCEDURE

.210 Designation Procedure

.211 The Division of Classification and Compensation assists the Governor’s Office of Employee Relations (GOER) on issues related to the Negotiating Unit designation for classes of positions (default description) and individual positions within classes (done on an exception basis).  Such determinations are rendered based on the understanding of the class of positions or individual positions in terms of duties and responsibilities as compared to the existing Negotiating Units and the criteria for Managerial/Confidential (M/C) designation.

.212    When proposing new classes, operating agencies must initially choose the Negotiating Unit or M/C designation.  The Division of Classification and Compensation will then assess the agency request in accordance with the above noted and applicable statutory criteria, and issue an administrative determination (NYSTEP negotiating unit code) with its classification determination.  Unless changed at the request of GOER or by order of PERB, this determination becomes the default determination for all future positions in the class.

.213     For individual vacant positions for which a default Negotiating Unit determination exists, agencies wishing to change such determination must present rationale to the Division of Classification and Compensation for review.  Requests to change the Negotiating Unit for a filled position must be sent to GOER.

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TM-65 - Replaces: All of Section 0800 Dated Prior to August, 2008

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