CC Resolution No. 99-191RESOLUTION NO. 99-191
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTiNO AMENDING THE ADMINISTRATIVE RULES AND REGULATIONS OF
THE PERSONNEL CODE
WHEREAS, Administrative Rules and Regulations of the Personnel Code need to be
modified in compliance with the Cupertino Municipal Code;
NOW, THEREFORE, BE IT RESOLVED that the Administrative Rules and Regulations
of the Personnel Code be amended as shown in Attachment "A" which is incorporated in this
resolution by reference.
PASSED AND ADOPTED at a regular City Council meeting of the City of Cupertino
this 6th day of July, 1999 by the following vote:
VOTE
AYES:
NOES:
ABSENT:
ABSTAiN:
MEMBERS OF THE CITY COUNCIL
BURNETT, CHANG, JAMES, STATTON, DEAN
NONE
NONE
NONE
ATTEST:
City Clerk
APPROVED:
Mayor, Citgo Cupertino
Attachment "A"
CITY OF CUPERTINO
fflDMINISTRA TIVE RULES AND REGULATIONS
OF THE PERSONNEL CODE
CITYWIDE POLICIES
JULY1999
/IDMIN1STRAT1VE RULES AND REGULATIONS OF THE PERSONNEL CODE
Table of Contents
PARTI
PERSONNEL RULES
SECTION 1
SECTION 2
SECTION 3
SECTION 4
SECTION 5
SECTION 6
DEFINITIONS
GENERAL ADMINISTRATION
2.1 Purpose
2.2 Policy
2. 3 Administration
2.4 Interpretation
2.5 Coverage
2.6 Repeal of Existing Rules
2. 7 Amendments to Rules
2. 8 Effective Date
GENERAL PROVISIONS
3.1 Fair Employment Practices
3.2 Violation of Rules
CLASSIFICATION PLAN
4.1
4.2
4.3
4.4
4.5
Preparation of Plan
Adoption and Revision of Plan
Allocation of Positions
New Positions
Reclassification
RECRUITMENT
Announcement Notices
5.1
5.2 Request for Application Forms
5.3 Application Forms
5. 4 Disqualification
5.5 Disqualification - Nepotism
5.6 Receipt o__f Applications
EXAMINATIONS
6.1 Nature and Type o__f Examinations
6. 2 Promotional Examinations
6.3 Continuous Examinations
6. 4 Scoring Examinations and Qualifying Scores
6. 5 Notification of Examination Results
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SECTION 7
SECTION 8
SECTION 9
SECTION 10
SECTION 11
SECTION 12
ELIGIBLE LISTS
7.2
7.3
7.4
7.5
7.6
7.7
Eligible Lists
Duration of Eligible Lists
Placement on Eligible Lists
Certification
Order of Certification
Removal of Names from Eligible Lists
Replacing an Eligible List
APPOINTMENTS
8. ! Type of Appointments
8.2 Position Requisitions
8. 3 Order of Employment
PROBATIONARY PERIOD
9.1 Ob. jective of Probationary Period
9. 2 Extension of Probationary Period
9. 3 Rejection During Probationary Period
PERFORMANCE EVALUATIONS
10.1
10.2
10.3
10.4
10.5
10.6
Evaluation of Employee Performance
Performance Evaluation Forms
Annual Evaluations - Merit Increases
Probationary Period
Non-timely Evaluations - Merit Increase
Performance Evaluations - Disagreement
STATUS CHANGES
11.1 Transfer
11.2 Demotion
11.3 Suspension
11.4 Reinstatement
ATTENDANCE AND LEAVES OF ABSENCE
12.1 Hours of Work
12.2 Holidays
12.2.1 Floating Holidays
12.2.2 Rescheduled Work Assignment
12.2.3 Unused Work Hours
12.2.4 Holiday Pay
12.3 Vacation Accrual
12.3.1 Vacation Sellback
12.4 Sick Leave
12.4.1 Sick Leave Conversion
12. 4. 2 Conditions - Sick Leave Hours' Conversion to Vacation
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12.4.3 Conditions - Vacation Hours Conversion to Sick Leave
12.5 Incentive Compensation
SECTION 13
SECTION 14
SECTION 15
SECTION 16
12.5.1 Hourly Value
12.5.2 Retirement
12.5.3 Resignation
12.6
12.7
12.8
12.9
12.10
12.11
12.12
12.13
12.14
12.14.1
Bereavement Leave
Absence Notification
Military Leave
Jury Duty
Temporary Disability Benefits
Pregnancy Disability Leave
Adoption Leave
Catastrophic Leave
Attendance
Attendance Records
OVERTIME
13.1 Overtime Pay
13.2 Non-Exempt Overtime
13.3 Exempt Employees
13.4 Stand-by Pay
TERMINATION
14.1 Resignations
14.2 Layoffs
14.3 Reemployment
14.4 Reinstatement
DISCIPLINE
15.1 Policy
15.2 Procedure
15.3 Forms of Disciplinary Action
15.4 Causes for Disciplinary Action
15.5 Pre-disciplinary Proceedings
15.6 Notice Requirements
15. 7 Skelly Meeting
15.8 Action Letter
15.9 FLSA Exempt Employees
APPEALS AND HEARINGS
16.1 Form of Appeal
16.2 Filing o__f~
16.3 Representation
16. 4 Who May Appeal
16.5 Hearing on Appeals
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SECTION 17
PARTII
SECTION 1
SECTION 2
SECTION 3
SECTION 4
SECTION 5
GRIEVANCE PROCEDURE
17.1 Definition
17.2 Stepl
! 7.3 Step_2
17.4 Step 3
17.5 Step 4
17. 6 Advisory Arbitration
! 7. 7 Limitations on Authority of Advisory Abitration
CITYWIDE POLICIES
AFFIRMATIVE ACTION
ALCOHOL AND DRUG ABUSE POLICY
2.1 Purpose
2.2 Policy
2.3 Application
2.4 Employee Responsibilities
2.5 Management Responsibilities and Guidelines
2.6 Physical Examination and Drug Screening Procedures
2. 7 Fit-for Duty Examinations
2.8 Confidentiality
2.9 Appeal Process
2.10 Summary
SEXUAL HARASSMENT POLICY
3. ! Policy Statement
3.2 Definition
3.3 Examples
3.4 Complaint Procedure
3.5 Responsibilities
3.6 Penalties
AMERICANS WITH DISABILITIES ACT
4. I Purpose
4.2 Policy
4.3 Definitions
4.4 Complaint Procedure
FAMILY LEAVEPOLICY
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45
47
SECTION 6 REIMBURSEMENT OF EXPENSES 48
SECTION 7
SECTION 8
6.1 Personal Vehicles 48
6.2 Reimbursements 48
SPECIAL CONDITIONS 48
Z 1 Training Programs 48
7.2 Suggestion System 48
7.3 Hospitalization, Medical, Dental and Life Insurance Programs 48
7. 4 Memorandum of Understanding 49
WORKPLACE VIOLENCE 50
8.1 Policy 50
8.2 Definitions 50
8.3 Zero Tolerance 50
8.4 Violent Acts 51
8. 5 Reporting Violent Acts 51
8. 6 Workplace Violence Written Report 51
8. 7 No Retaliation 52
8. 8 Investigation 52
8.9 Due Process 52
PARTI
PERSONNEL RULES
SECTION 1 DEFINITIONS
1.1
Administrative Leave: Leave granted by the City Manager with or without pay for
a maximum of thirty (30) calendar days.
1.2
Allocation: The assignment of a single position to its proper classification in
accordance with the duties performed and levels of responsibility.
1.3
Anniversary Date: A date set following a beginning level or promotional
appointment, on which an employee is due for a performance evaluation, or is
eligible for status change, or should be considered for a merit increase.
1.4 Applicant: A person who has submitted an application for employment.
1.5 Appointing Authority: The City Manager.
1.6 Candidate: An applicant invited to compete in the examination process.
1.7 Certification Notice: The submission of names of eligibles from an eligible list.
1.8
Class Specification: The official description of a job classification including the
title, a statement of duties and levels of responsibilities, distinguishing
characteristics from other classes if applicable, and qualification standards
including education, experience, knowledge, skills, and abilities.
1.9
Classification (Class): A group of positions having duties and levels of
respodsibility sufficiently similar that the same job title, examples of duties,
qualification standards, and methods of selection and compensation may be
applied.
1.10 Confidential Classification: Confidential classes as defined in City Resolution
No. 9901.
1.11
Continuous Service: The uninterrupted service of an employee from the date of
his/her latest appointment to the present. Continuous service shall be broken
through death, discharge, resignation, retiremem, or layoffs exceeding twelve (12)
months duration without the employee having been reinstated. Continuous
service shall be interrupted through a leave of absence or suspension without pay
exceeding ten (10) work days.
1. !2 Days: Calendar days, unless otherwise indicated.
1.13 Demotion: The movement of an employee from one class to another class having
a lower maximum rate of pay.
1.14 Eligible: A person whose name is on an open competitive or promotional eligible
list.
1.15 Eligible List:
Open Eligible List: A list of names of persons who have taken and qualified in
an open competitive examination for a position subject to the merit and fitness
provision of Chapter 2.52 of the Personnel Code.
Promotional Eligible List: A list of names of persons who have taken and
qualified in a promotional examination for a position subject to the merit and
fitness provision of Chapter 2.52 of the Personnel Code.
1.16 Employee Organization: An organization recognized in accordance with the
provisions of Chapter 2.52 et seq. of the Personnel Code.
1.17
Grievance: A good faith dispute or difference of opinion raised by an employee
involving the meaning, interpretation, or application of the expressed provisions
of a Memorandum of Understanding, city policy, or existing work rules
concerning a matter within the scope of representation.
1.18 Examination:
Open Competitive Examination: The testing process for a particular class
which is open to all persons meeting the requirements for the position.
Promotional Examination: The testing process for a particular class,
admission to the examination being limited to employees with permanent
status who meet the requirements for the position.
Continuous Examination: The testing process announced on an open
competitive basis administered periodically resulting in the placement of
names, in order of final scores, on an employment list for a period of one year.
1.19
Exclusive Representative: An employee organization, or its duly authorized
representative, that has been granted formal recognition by the municipal
employee relations officer following a secret ballot election as representing the
employees in an appropriate unit.
1.20 Exempt Positions:
Personnel Code Exemptions:
The City Manager, City Attorney, Department Directors, Secretary to the City
Manager, Secretary to the City Attorney, and employees serving under
appointments of provisional, exempt, temporary, or emergency status,
subject to the merit and fitness provisions of the Personnel Code.
Fair Labor Standards Act (FLSA) Exemptions:
are not
Executive, Administrative, and Professional employees designated exempt under
the FLSA. (29 CFR ~541.1 - 541.3 etseq)
1.21 Fiscal Year: July 1 through June 30.
1.22 Human Resources Manager: The City Manager o~- his designated representative.
1.23 Injury Leave: Leave arising out of and in the course of employment as defined by
Workers' Compensation laws, State of California Labor Code.
1.24 In-Service Training: Any class, seminar, workshop, training course or conference
participated in by an employee while working for the city.
1.25 Layoff: Separation from employment due to lack of work or lack of funds.
1.26 Management Classifications: Management classes as defined in City Resolution
No. 9901.
1.27 Merit Salary Increases: Advancement through the steps of a salary range, based on
satisfactory job performance, at specified time intervals.
1.28 Municipal Employee Relations Officer: The City Manager or his duly authorized
representative.
1.29 Normal Workweek: A normal workweek is defined as 40 hours of work in five
working days unless modified by the department head.
1.30 Permanent Employee: An employee who has successfully completed the
probationary period.
1.31 Permanent Part-time Employee: An employee appointed in a part time basis to an
authorized position with pro-rated benefits who has successfully completed the
probationary period.
1.32 Personnel Code: Chapter 2.52 of the Municipal Code.
1.33 Probationary Period: The final component of the selection process involving a 12
month working test during which an employee is required to demonstrate
fitness for the assigned position by actual performance of the duties of the
position.
1.34
Promotion: The movement of an employee from one class to another class having
a higher maximum pay rate.
1.35 Provisional Appointment: An appointment of a person who possesses the
minimum qualifications established for a particular class and who has been
appointed to a position in the absence of an eligible list and is limited to
one hundred and eighty (180) calendar days of employment.
1.36 Recall: Reemployment of a person laid off from employment as a result of a lack
of work or lack of funds.
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
Reclassification: Allocation by the City Manager of an individual position to
another more appropriate classification, whether new or already created.
Reinstatement: The reemployment without examination of a former permanent
employee who resigned in good standing and is eligible for reinstatement to their
former class pursuant to the provisions of a memorandum of understanding.
Review Date: See Section 1.3 Anniversary Date
Seniority
City Seniority: The length of continuous service by an exempt or permanent
employee.
Classification Seniority: The length of continuous service in a classification
by an exempt or permanent employee.
Suspension: The temporary separation from employment without pay, of an
employee for disciplinary purposes.
Temporary Employee: An employee appointed on an "as needed" basis for work
which is anticipated to be of a temporary or intermittent nature either on a full-
time or part-time basis. Such appointments are based on an hourly rate of pay
when less than full-time and do not include benefits except as prescribed by law.
May not work more than 1,000 hours per fiscal year.
Total Compensation: The total renumeration, including salary, applicable
economic employee benefits, and working conditions received by the employee
from the city.
Transfer: A change of an employee from one position to another in the same class
or in a comparable class.
5
SECTION 2 GENERAL ADMINISTRATION
2.1
Purpose
The purpose of these Rules shall be to provide the basis of a merit system by
which the personnel program shall be administered. These Rules shall also
provide the basis of common understanding between the supervisors and
employees as to terms and conditions of employment insofar as they are not
superseded by a formally adopted Memorandum of Underst~ding pursuant to the
provisions of Chapter 2.52 of the Personnel Code, Section 2.52.280 Employer-
Employee Relations.
2.2
Policy
The policy under which these Rules shall be administered is to provide for
fairness both to the employee and the city and for consistency and uniformity in
the administration of the Personnel Program.
2.3
Administration
The administration of these Rules is hereby vested in the Human Resources
Manager subject to administrative policies as set forth by the City Manager.
2.4
Interpretation
Any interpretation, definition or meaning of any provision, term or condition
contained herein shall be as set forth in writing by the Human Resources Manager
whose interpretations, definition or meaning shall be considered as supplemental
hereto.
2.5
2.6
2.7
Coverage
All officers, employees and positions shall be subject to these Rules except for
those officers, employees and positions specifically enumerated herein below.
a. All Elected Officers
b. City Manager
c. City Attorney
d. Chairmen and members of appointed boards, commission and committees
e. Part-time, temporary, and seasonal employees.
Repeal of Existing Rules
All existing Rules and other policies currently or heretofore in effect relating to
those terms and conditions of employment as provided for herein are hereby
rescinded and repealed.
Amendments to Rules
Amendments to and modifications of these Rules shall be as set forth in the
Personnel Code.
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2.8
Effective Date
These Rules shall be filed with the City Clerk on adoption by the City Council
and shall become effective immediately thereafter.
SECTION 3 GENERAL PROVISIONS
3.1
Fair Employment Practices
No question in any test, application form, or in any other personnel proceeding
shall be so framed as to attempt to elicit information concerning race, religious
creed, color, national origin, ancestry, mental, or physical disability, medical
condition, marital status, sex, age, or sexual orientation unless required for
compliance with any federal or state law or regulation regarding equal opportunity
in employment. No appointment to or removal from a position in the competitive
service shall be affected or influenced in any manner by any consideration of race,
religious creed, color, national origin, ancestry, mental or physical disability,
medical condition, marital status, sex, age, or sexual orientation unless such
physical or mental disability precludes the performance of an essential job
function with or without reasonable accommodation.
3.2
Violation of Rules
Violation of the provisions of these Rules may be grounds for disciplinary action
or removal from an eligible list.
SECTION 4 CLASSIFICATION PLAN
4.1
Preparation of Plan
The Human Resources Manager shall ascertain and record the duties and
responsibilities of all positions and, after consulting with the Appointing
Authority and heads of departments affected, shall recommend a classification
plan for such positions. The classification plan shall consist of classes of
positions defined by class specification including the title. The classification plan
shall be so developed and maintained that all positions substantially similar with
respect to duties, responsibilities, authority, and character of work are included
within the same class, and that the same schedules of compensation may be made
to apply with equity under like working conditions to all positions in the same
class.
4.2
Adoption and Revision of Plan
The classification plan shall be adopted and may be amended from time to time
by resolution of the City Council.
4.3
Allocation of Positions
Following the adoption of the classification plan, the Human Resources Manager
shall allocate every permanent position to one of the classes established by the
plan. Allocation factors directly relate to duties, responsibilities, and minimum
qualifications, and do not include the amount of work performed or other factors
related to compensation.
4.4
New Positions
When a new position is created, before it may be filled, the Appointing Authority
shall notify the Human Resources Manager and except as otherwise provided by
these rules, no person shall be appointed or employed to fill any such position
until the classification plan has been amended as necessary to provide
therefore and an eligible list established for such position.
4.5
Reclassification
Positions, the duties of which have changed materially so as to necessitate
reclassification, shall be allocated by the Human Resources Manager to a more
appropriate class, whether new or already created.
SECTION 5 RECRUITMENT
5.1
Announcement Notices
All examinations for permanent positions shall be publicized by posting
announcements on official bulletin boards and by such other methods as the
Human Resources Manager deems advisable. Special recruitment shall be
conducted, if necessary, to insure that all segments of the community are aware of
forthcoming examinations. The announcement shall specify the title and pay of
the position for which the examination is announced; the nature of the work to be
performed; typical duties; qualification requirements for the position; the manner
of making application, components of the testing process, and any other pertinent
information. Certified copies of college transcripts, motor vehicle driver records,
and other documents required during the application process will be identified in
the announcement notice.
5.2
Request for Application Forms
Applications will only be provided during the period set forth in the
announcement notice. Internal lists of subsequent job openings will not be
maintained.
5.3
5.4
Application Forms
Completed applications are required for all open and promotional examinations.
All applications must be signed by the person applying. Resumes are not
accepted in lieu of completed applications.
Disqualification
The Human Resources Manager shall reject any application which indicates on its
face that the applicant does not possess the minimum qualifications required for
the position. Applications shall be rejected if the applicant is physically unfit for
8
the performance of duties of the position; is addicted to the habitual excessive use
of drugs or intoxicating liquor; has been convicted of a crime involving moral
turpitude; has made any false statement of any material fact, or practiced any
deception or fraud in the application. Whenever an application is rejected, notice
of such rejection with statement of reason shall be mailed to the applicant by the
Human Resources Manager. Defective applications may be returned to the
applicant with notice to amend the same providing the time limit for receiving
applications has not expired.
5.5
Disqualification - Nepotism
It is the policy of the City of Cupertino to remain free from nepotism while not
discriminating against the applicant. The following provisions apply:
a. Members of the immediate family of City Councilmembers may not be
employed by the city during the Councilmember's term of office.
b. Members of an immediate family may not be employed simultaneously by
the city in positions where family influence and/or relationship might affect
supervision, safety, security, or morale in a manner detrimental to the conduct
of city business, or where such relationships may result in conflicts of
interest.
c. "Immediate family" is defined as spouse, father, mother, brother, sister,
son or daughter, grandmother or grandfather, grandson or granddaughter,
including step children.
5.6
Receipt o__f Applications
Applications must be received by the final filing date as set forth in the
announcement notice. Applications received through facsimile (fax) transmission
by the final filing date are acceptable on the condition that the original application
is received by 5:00 p.m. on the first business day of the city of the following
week.
SECTION 6 EXAMINATIONS
6.1
Nature and Type of Examinations
The selection technique used in the examination process shall be job related and
designed to fairly measure the relative capacities of the persons examined to
execute the duties and responsibilities of the position to which they seek to be
appointed as determined by the Human Resources Manager. Examinations shall
consist of selection techniques which will test fairly the qualifications of
candidates such as, but not necessarily limited to, written tests, personal
interviews, performance tests, physical agility tests, evaluation of daily work
performance, work samples, medical examinations, or any combination of these
or other tests. The probationary period shall be considered as an extension of the
6.2
6.3
6.4
6.5
examination process. Examinations shall be designed to provide equal
opportunity to all candidates by being based on an analysis of the essential
requirements of the classification, covering only factors related to such
requirements.
Promotional Examinations
Promotional examinations may be conducted whenever, in the opinion of the
Human Resources Manager after consultation with the respective department
head, the needs of the service require. Promotional examinations may include
any of the selection techniques identified in Section 6.1 of these rules, or any
combination thereof. Only permanent employees who satisfy requirements set
forth in the promotional examination announcement may compete in such an
examination.
Continuous Examinations
Open competitive examinations may be administered periodically for a single
class as the needs of the city require. Names shall be placed on eligible lists in
order of final score and shall remain on such lists for a period of one year.
Scoring Examinations and Qualifying Scores
A candidate's score in a given examination shall be based on his/her scores in
each competitive part of the examination, weighted as shown in the examination
announcement. Failure in one part of the examination may be grounds for
declaring such candidate as failing in the entire examination or as disqualified for
subsequent parts of an examination. The Human Resources Manager may, at
his/her discretion, include as a part of the examination tests which are qualifying
only.
Notification of Examination Results
Candidates in an examination shall be given written notice of whether they were
successful in the examination process. If successful they shall be placed on an
eligible list.
SECTION 7 ELIGIBLE LISTS
7.1
Eligible Lists
After the completion of an examination the names of successful applicants shall
be placed on an eligible list from which appointments shall be made.
7.2
Duration of Eligible Lists
Eligible lists shall remain in effect for six months unless exhausted sooner or
abolished by the Human Resources Manager. Eligible lists may be extended
for up to an additional year by action of the Human Resources Manager.
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7.3
Placement on the Eligible List
Eligible persons shall be placed on an eligible list by: (1) rank in order of final
score after all components of the selection process, (2) by alphabetical placement
in a category (superior, good, average) as determined by final score, or (3) by
alphabetical assignment on the eligible list. The Human Resources Manager shall
determine the type of eligible list after the testing process is completed for each
examination.
7.4
Certification
The number of eligibles certified for the employment interviews shall be
determined consistent with the method of placement on the eligible list as set
forth below.
Method of Placement
Final Score
Category
Alphabetical
Certification
Rule of Three
Rule of Rank
Rule of List
7.5
Order of Certification
The Human Resources Manager shall certify the names of persons eligible for
appointment in the following order:
a. Recall Lists
b. Request for transfer or demotion
c. Reinstatement Lists
d. Promotional Lists
e. Open Eligible Lists
7.6
Removal of Names from Eligible Lists
The name of any person appearing on an eligible list shall be removed by the
Human Resources Manager upon receipt of a request in writing to do so, if the
person fails to respond to a notice of certification mailed to his/her last known
address, or if the person has been certified for appointment three times and has not
been appointed. The person affected shall be notified of the removal of his/her
name by a notice to the last known address. The names of persons on
promotional eligible lists who resign from city service shall automatically be
removed upon termination of employment.
7.7
Replacing an Eligible List
If there are fewer than three persons on an eligible list available for employment,
the Human Resources Manager may abolish said eligible list and notify each
person on the eligible list.
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SECTION 8 APPOINTMENTS
8.1
Type o__f Appointments
All vacancies shall be filled by recall, transfer, demotion, reinstatement, or from
eligibles certified by the Human Resources Manager. In the absence of eligible
lists, provisional appointments may be made consistent with the provisions of
these rules. Appointments fall into the following categories:
a. Permanent Full-Time: Appointment on a full-time basis to an authorized
position.
b. Permanent Part-Time: Appointment on a part-time basis to an authorized
position with partial benefits
c. Temporary: Appointment on an "as needed" basis for work which is
anticipated to be of a temporary or intermittent nature, either on a full-time or
part-time basis. Less than full-time appointments are based on an hourly rate
of pay and do not include benefits except as prescribed by law. No special
credit or consideration for service shall be given to a temporary appointee in
qualifying for a permanent appointment.
d. Provisional: In the absence of appropriate eligible lists, a provisional
appointment may be made by the Appointing Authority of a person meeting
the minimum training and experience qualifications for the position. An
eligible list shall be established within six months for any permanent position
filled by provisional appointment. No special credit or consideration for
service shall be given to a provisional appointee in qualifying for a permanent
appointment.
e. Exempt: All employees occupying positions as described inSection 1.20
herein.
8.2
8.3
Position Requisitions
Whenever a vacancy is to be filled, the department in which the vacancy exists
shall complete a position requisition form and submit it to the Human Resources
Manager after approval by the City Manager.
Order of Employment
Positions shall be filled by any persons on a recall list in order of seniority.
Positions may be filled by a transfer, demotion, or reinstatement. If three or more
persons are on a promotional eligible list and willing to accept the position, an
appointment shall be made. If three or more persons are on an open eligible list
and willing to accept the position, an appointment shall be made if the position is
to be filled while the eligible list is active.
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SECTION 9 PROBATIONARY PERIOD
9.1
Objective o__f Probationary Period
The probationary period shall be considered a part of the testing process for
appointments to permanent full and part-time positions, and shall be utilized for
closely observing the employee's work and for securing the most effective
adjustment of a new employee in the new position.
~2
Extension og_f Probationary Period
If a probationary employee is off work, for any mason, for four consecutive weeks
or more, the employee's probationary period will be extended for the period of
his/her absence.
9.3
Rejection during Probationary Period
During the probationary period, an employee may be rejected at any time by the
department head without cause and without right of appeal. Notice of rejection
shall be served in writing to the probationer, indicating that the employee has
failed to satisfactorily complete the probationary period.
SECTION 10 PERFORMANCE EVALUATIONS
10.1
Evaluation of Employee Performance
It is the responsibility of department heads and/or supervisors to prepare periodic
evaluations of performance results to measure and record the employee's actual
performance. Strengths and weaknesses will be documented and recommended
courses of action outlined for correction and improvement. The purpose of
periodic performance evaluations is to provide continuing feedback to employees
concerning performance. The performance evaluations shall measure, as
objectively as possible, both quantity and quality of work, the manner in which
the service is rendered, and the observance of regulations and procedures properly
governing the performance of duties. Performance evaluation forms will be
provided 30 days prior to the date scheduled to be returned to the Human
Resources Manager.
10.2
Performance Evaluation Forms
Performance evaluations shall be based upon forms approved
by the Human Resources Manager. Service ratings shall be based upon the
independent judgment of one or more supervisory personnel, including the
immediate supervisor of the employee being rated. The completed performance
report shall be presented to the employee for review and signature, and then
forwarded to the Human Resources Manager.
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10.3
Annual Evaluations - Merit Increases
Performance ratings shall accompany all requests for merit increases. Employees
at the "E" step shall have their performance evaluated on their annual anniversary
date in the classification.
10.4
10.5
10.6
Probationary Period
Performance evaluations shall be completed every three months during the
probationary period.
Non-timely Evaluations - Merit Increase
If a performance evaluation is not submitted prior to a scheduled merit increase,
the employee will automatically advance to the next higher salary step.
Performance Evaluations - Disagreement
Employees shall have the right to attach a statement disagreeing with the
performance ratings received. The statement will be filed with the performance
evaluation.
SECTION 11 STATUS CHANGES
11.1
11.2
11.3
11.4
Transfer
No person shall be transferred to a position for which he/she does not possess the
minimum qualifications. Upon approval by the Human Resources Manager, an
employee may be transferred by the department head at any time from one
position to another in the same class. If the transfer involves a change from one
department to another, both department heads must approve.
Demotion
Upon request of the employee, and with the consent of the department head,
demotion may be made to a vacant position. No employee shall be demoted to a
position for which he/she does not possess the minimum qualifications.
Suspension
A department head may, after review with the Human Resources Manager,
suspend an employee from his position at any time for a disciplinary purpose. All
suspensions shall be consistent with the provisions of Memoranda of
Understanding and Administrative Procedures.
Reinstatement
With the approval of the department head, a permanent or probationary
employee who has resigned with a record of satisfactory service may be reinstated
within two years of the effective date of resignation to a vacant position in the
same class. Upon reinstatement, former service credit with the city shall be
restored for the purpose of determining benefit accruals. Sick leave hours will not
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be restored and for all other purposes the employee shall be considered as though
he/she had received an original appointment.
SECTION 12 ATTENDANCE AND LEAVES OF ABSENCE
12.1
Hours of Work
The normal work week shall be Monday through Friday. The normal work day
shall be from 8:00 a.m. to 5:00 p.m. except for Friday, which is 7:30 a.m. to 4:30
p.m. The normal work week shall be 40 hours in seven consecutive days.
A variance to the normal work week or working day may be established by the
department head with the written approval of the City Manager when such is
deemed by the City Manager to be in the best interest of the city. Any such
variance shall identify the positions to which it applies and shall be filed with the
Human Resources Manager.
12.2
Holidays
The holidays to be observed are as follows:
a. New Year's Day
b. Marlin Luther King Day
c. Washington's Birthday
d. Memorial Day
e. Independence Day
f. Labor Day
g. Veteran's Day
h.. Thanksgiving Day
i. Friday Following Thanksgiving Day
j. Christmas Eve (1/2 shift)
k. Christmas Day
1. New Year's Eve (1/2 shift)
Holidays falling on a Saturday will be observed on the preceding Friday and
holidays falling on a Sunday will be observed on the following Monday.
12.2.1 Floating Holidays
In addition to the foregoing paid holidays, eligible employees shall be allowed
to schedule 20 hours as additional holiday leave not to be taken in increments
of less than one (1) hour. This floating holiday leave shall be taken at
dates of the employee's selection, provided that 1) prior supervisory
approval be obtained, and 2) all leave is taken before the end of the 2nd pay
period in December of each calendar year. For new employees, floating
holiday leave will be prorated in the calendar year in which they were hired
in the following manner:
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12.2.2
12.2.3
12.2.4
12.3
a) Employees hired after January 1 but on or before March 31 shall be
entitled to 20 hours floating holiday leave in that calendar year.
b) Employees hired on or after April 1 but on or before September 30 shall be
entitled to 10 hours of floating holiday leave in that calendar year.
c) Employees hired on or after October 1 but before December 31 will not be
entitled to floating holiday leave in that calendar year.
Rescheduled Work Assignments
Nothing contained herein shall preclude the right of the department head with
the approval of the City Manager to reschedule work assignments or hours of
work to meet emergency situations and other administrative necessities caused
by the observance of a holiday or non-work day or period; provided,
however, that all such affected employees are duly compensated for said
reschedhled work assignments.
Unusual Work Hours
Employees whose normal work day is at variance with the normal work hours
specified in Section 12.1 of these rules will be compensated for the additional
work hours required.
Holiday Pay
In order for an employee to receive his/her regular pay for a holiday or
designated non-work day, work must be performed on the regular scheduled
day before and the regular scheduled day after the holiday or designated
non-workday. Employees on vacation, injury leave, sick leave, or
approved short term leave of absence, with pay, shall be considered as
working their regular schedule for pay purposes.
Vacation Accrual
All employees, other than those holding temporary status, whose work assignment
is of a recurring nature of not less than a normal work week shall accrue vacation
credits.
Accrued vacation may be taken with the prior approval of the supervisor.
Vacation leave must be taken in no less than one (1) hour increments.
Vacation hours shall be accrued in accordance to the following table:
YEARS OF SERVICE HOURS ACCRUAL DA YS PER YEAR
PER PA Y PERIOD
0-3 3.08 10
4-9 4.62 15
10-14 5.24 17
15-19 6.16 20
20+ 6.77 22
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An employee may accrue vacation hours up to two times the annual hours
being earned.
On termination of employment or on receiving a leave of absence of more
than three (3) months an employee shall be compensated for all earned but unused
vacation accrued at the time of termination or at the start of said leave of absence.
Unused vacation may not be used to extend the final employment date.
The accrual of vacation credits for those employees whose normal work week
is of not less than one-half (1/2) time shall be prorated according to the time of the
recurring work assignment as to the normal work week.
12.3.1 Vacation Sellback
Employees may convert, up to two times per calendar year, unused vacation
time for payment subject to the following conditions:
a) The employee must have a minimum of 120 hours of accrued vacation
immediately prior to a conversion.
b) Any payments made for accrued vacation hours will be subject to taxes as
determined by law.
c) Minimum exchange will be one day, maximum exchange will be ten days.
All exchanges are irrevocable.
d) A maximum of 80 hours of accrued vacation may be converted for pay
during a calendar year.
12.4
Sick Leave
All full time employees, other than those holding temporary stat~s, shall earn
eight (8) hours per month sick leave time without limit on accumulation. Those
permanent employees working less than full time (at least 20 hours per week)
shall earn in one month the number of hours sick leave they would normally work
in one day or the equivalent without limit on accumulation. Employees absent
without pay for any reason for more than forty (40) hours during a pay period
shall not earn sick leave benefits for that month.
Sick leave may be utilized due to the employee's personal illness, injury,
maternity, or sickness or injury in the immediate family. Immediate family is
defined as spouse and children. Employees shall, whenever possible, make
appointments for medical, dental, and similar purposes on non-work hours. If this
is not possible, sick leave may be used for these purposes.
With proper notice and approval of the supervisor, sick leave shall be taken in
periods of no less than one-half hour increments.
Accrued sick leave hours are not vested under California statutory law.
12.4.1 Sick Leave Conversion
Represented employees will have the option, subject to approval, of converting sick
leave to vacation leave on a two-to-one basis. The maximum allowable exchange will
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be 96 hours of sick time for 48 hours of vacation leave per calendar year. Minimum
exchange will be 8 hours sick leave for 4 hours of vacation.
An employee may convert sick leave in excess of 320 hours to vacation leave on a
one-to-one basis with a maximum of 48 hours and a minimum of 4 hours.
12.4. 2 Conditions - Sick Leave Hours Conversion to Vacation
a) All requests to exchange sick leave for vacation time shall be submitted in
writing to the department head at least thirty (30) calendar days prior to
intended utilization.
b) At least one-half of the vacation accrued during the previous twelve
months must have been taken.
c) Department head approval is required
12. 4.3 Conditions - Vacation Hours Conversion to Sick Leave
a)
If twelve (12) months have elapsed since approval of the exchange of sick
leave for vacation, and the employee has not been permitted to use the
converted vacation time, (after submitting at least one written request for
utilization) the employee will have the right to re-convert the vacation
time to sick leave in reverse ratio to the original exchange. This exchange
will be allowed for previously converted sick time to vacation and will
not be permitted for regularly accrued vacation time.
b)
If an employee, after converting sick leave to vacation time, exhausts all of
his/her remaining sick leave due to injury or illness, he/she may make a
written request to the department head to re-convert vacation time to sick
leave on a reverse ratio* basis. Approval will be subject to an assessment
by the department head.
12.5 Incentive Compensation
12.5.1 Hourly Value
' "Reverse ratio" is intended to mean that the ration of sick leave to vacation will revert to the original
ration at the time the initial exchange was implemented.
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Employees represented by the City Employees' Association -
At the time of termination, the value of non-vested hours is converted to an incentive
compensation bank equal to the employee's base hourly rate averaged over the
immediate past 60 complete months of employment multiplied by the total number of
non-vested hours, or completed momhs of employment if fewer than 60.
All other employees - at the time of termination, the value of non-vested hours is
converted to an incentive compensation bank equal to the employee's final base
hourly rate multiplied by the total number of non-vested hours.
12.5.2 Retirement
If upon retirement an employee has a minimum of 320 non-vested hours, payment
shall be made for eight-five percent (85%) of the value of the incentive compensation
bank.
12.5.3 Resignation
If upon resignation an employee has a minimum of 320 non-vested hours, payment
shall be made for seventy percent (70%) of the value of the incentive compensation
bank.
12.6
Bereavement Leave
Employees shall be granted paid bereavement leave not to exceed three (3) work
days upon the occasion of death of a close relative. Close relatives are defined as
mother, father, sister, brother, wife, husband, child, grandparent, grandchildren,
mother-in-law and father-in-law.
12.7
Absence Notification
An employee is not expected to be absent from work for any reason other than
personal illness without making prior arrangements with his/her supervisor.
Unless prior arrangements are made, an employee, who for any reason fails to
report for work must immediately notify his/her supervisor of the reason for being
absent. If the absence, whether for personal illness or otherwise, is to continue
beyond the first day, the employee must notify the supervisor on a daily basis
unless otherwise arranged.
Absences exceeding three (3) days require a physician's certification of illness
and release to return to work. The certification and release must be provided at
the time of return to work. A continuing illness requires a physician's
certification of illness during each pay period.
Any unauthorized absence of an employee from duty shall be deemed to be an
absence without pay and will be grounds for disciplinary action by the department
head. In the absence of such disciplinary action, any employee who is absent for
three days or more without authorized leave shall be deemed to have resigned.
Such absence may be covered, however, by the department head by approving
leave with or without pay when extenuating circumstances are found to have
existed.
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12.8
Military Leave
Military leave shall be granted in accordance with the provisions of California
statutory law. All employees entitled to military leave shall give their supervisor
an opportunity, within the limits of the military requirement, to determine when
such leave shall be taken.
12.9
Jury Duty
Employees called for jury duty shall be paid for regular work time upon receipt by
the Human Resources Manager of confirmation that the employee reported to
jury duty by the Jury Commissioner.
12.10
Temporary Disability Benefits
Any employee sustaining an injury arising out off or in the course off the
performance of his job and who cannot perform the duties and responsibilities
normally assigned to that job is entitled to receive temporary disability payments
as prescribed by California statutory law.
Any employee entitled to receive temporary disability payments may elect to
supplement such payments with an amount not to exceed that which is the
employee's weekly earning or weekly earning capacity by use of accrued sick
leave hours.
12.11
Pregnancy Disability Leave
A pregnant employee is entitled up to four (4) months leave of absence without
pay for temporary disability resulting from pregnancy, miscarriage, childbirth or
recovery therefrom. Employees shall take unpaid leave of absence during such
leave except that accrued vacation pay and sick leave may be taken at the option
of the employee.
As with all other temporary disabilities, a physicians certificate is required to
verify the extent and duration of the temporary disability.
An employee who plans to take a pregnancy leave must give a reasonable
notice (not less than four (4) weeks) before the date she expects to take the leave
and the estimated duration of the leave. The city will pay health and welfare
benefits at the same rate as prior to the leave until the employee is released by her
physician to return to work or for sixty (60) days, whichever comes first.
12.12
Adoption Leave
Upon request a leave of absence without pay for up to four (4) weeks will be
granted to adoptive parents. Accrued vacation pay and sick leave may be taken at
the option of the employee during this leave time. The city will pay health and
welfare benefits at the same rate as prior to the leave.
12.13
Catastrophic Leave
a. The city will form a committee to establish a definition of catastrophic or
life-threatening illness. This committee will evaluate each individual case
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when it is submitted to qualify to receive funds. The only limitation is that the
employee must be the one facing the illness. The committee has the right to
ask the applicant to submit further documentation from their physician to
determine the applicant does suffer a catastrophic or life-threatening illness.
b. All benefited employees who have passed initial probation with the city
will be eligible to receive assistance. An employee does not have to be a
contributor to be eligible. An employee or their representative must complete
a prescribed application form together with supporting medical documentation
and submit it to the Human Resources Manager when applying for funds.
c. A recipient must have used all of their available leave hours before he/she
is eligible.
d. The minimum time an employee could receive funds would be one week.
The maximum amount is two months (LTD becomes available at this time).
e. Vacation leave and compensatory time offare the only leave of absence
hours that may be donated. An employee may not donate vacation leave hours
which would reduce his/her total accrued leave balances to less than 120
hours. Leave credits may be donated in any pay period. All leave donations
are irrevocable.
f. A leave of absence transfer drive will be held whenever necessary to
provide for a minimum catastrophic leave balance which is the equivalent of
40 hours of the average hourly rate of full-time permanent employment.
Transfers may be in increments of one hour or more. All donations will be
confidential. There will be no selling or coercion of employees to donate. If
the bank is depleted, a vacation transfer drive may be held at the request of the
committee.
g. Donated leave hours will be converted to cash and deposited in a time-bank
where it will be available for distribution. Interest accruing from the bank
shall be credited the time-bank. Checks will be issued to the recipient with the
regular payroll which will keep the individual in an active employment mode
with the city. This procedure prevents overpayments or corrections since it
comes after the actual leave has been taken. No employee shall receive
payment for more than 100% of their regular pay.
12.14 Attendance
Employees shall be expected to perform their given work assignments until the
end of that work period. An employee who is not able to do so shall notify
his/her supervisor of that fact at the earliest possible time after that fact is known
to him/her. Abuse of attendance requirements may be grounds for appropriate
disciplinary action.
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12. ] 4.1 Attendance Records
Attendance records shall be maintained for each employee which shall form
basis for payroll and accounting requirements.
the
SECTION 13 OVERTIME
13.1
Overtime Pay
Overtime pay shall be made when an employee is authorized to work in excess of
forty hours during the normal work week.
13.2
Non-Exempt Overtime
All approved work performed by employees in excess of 40 hours in a seven day
work week, shall be paid at the overtime rate of one and one-half( 1 V2 ) times the
normal hourly rate.
13.3
Exempt Employees
Management and unrepresented professional employees designated exempt under
the Fair Labor Standards Act are ineligible for overtime payment. However, no
deduction from leave balances are made when such employee is absent from work
less than a regular working day.
13.4
Stand-by-Pay
Employees who are required to make themselves available to be called back to
work outside the normal work period shall be compensated for such stand-by
assignment at the rate set forth in memoranda of understanding for each week so
assigned.
SECTION 14 TERMINATION AND REEMPLOYMENT
14.1
Resignations
Resignations are deemed accepted and irrevocable once presented in writing to an
employee's supervisor or department head.
14.2
Layoffs
Layoffs may be made by the Appointing Authority for lack of funds, lack of work
or other similar and just cause. The order of layoff shall be that which, in the
opinion of the Appointing Authority, will cause the least disruption of service to
the city. The city will provide a minimum of thirty (30) days notice to any
employee subject to being laid off unless prevented from doing so by conditions
beyond the city's control.
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14.3
Reemployment
The names of employees affected by layoff shall be placed on a recall list for a
period of two years in the reverse order of layoff and shall have the first
opportunity for reemployment. Failure to respond within ten days to a written
notice of such opportunity shall cause that name to be removed from the recall
list.
14.,t
Reinstatement
With the approval of the Appointing Authority, a permanent or probationary
employee who has resigned with a good work record or an employee recalled
from a list resulting from a layoff may be reinstated within twenty-four months of
the effective date of resignation to a vacant position in the same or comparable
class he/she previously occupied. Upon reinstatement the employee, for all
purposes, shall be considered as though they had received an original
appointment.
SECTION 15 DISCIPLINE
15.1
Policy
It shall be the policy of the City of Cupertino to establish consistency in
procedures relating to employee discipline.
15.2
15.3
Procedure
The Human Resources Manager shall be contacted whenever a supervisor has
reason to believe that an employee has violated a rule of conduct or other policy,
procedure, practice, or regulation, whether formal or informal, resulting in a cause
for disciplinary action. The determination of corrective action, if any, will be
made after an investigation with department management of the alleged violation.
If a determination is made that corrective action is necessary, the Human
Resources Manager will prepare the necessary correspondence and review with
the department head. The City Manager shall be advised of any disciplinary
action. A pre-disciplinary meeting (Skelly) will generally precede a proposed
disciplinary action involving a loss or reduction of pay.
Forms of Disciplinary Action
The following forms of disciplinary action are listed in order of the least severe
(verbal reprimand) to the most severe (discharge).
a. Verbal Reprimand - is considered informal discipline with the purpose of
notifying the employee that his/her performance or behavior must be
improved. This verbal warning defines the area in which improvement is
required, sets up goals and/or objectives leading to this improvement and
informs the employee that failure to improve will result in more serious
disciplinary action.
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The verbal reprimand is the first official step of disciplinary action. It is
designed to address minor infractions of rules and practices. It is, in effect, a
statement to the employee that he/she has (1) violated a rule or work practice
that he/she should have been aware of, and (2) that he/she will be expected to
abide by all such rules or practices in the future.
b. Written reprimand - is an official record of discipline, usually issued after
a previous verbal reprimand. The employee is advised that his/her behavior is
seriously below standard and that continuation or repetition of that behavior
shall result in more serious disciplinary action. The written reprimand shall
cite violations of the city's rules of conduct or causes for disciplinary action.
The written reprimand is considered the first formal step in the
disciplinary procedure.
c. Suspension - is an ordered absence from duty without pay for a prescribed
period of time. An employee may be suspended without pay for up to thirty
(30) calendar days. A suspension without pay is a serious action by
management involving loss of pay and possibly supplemental benefits
(depending on length of suspension). An employee generally receives less
severe discipline prior to a suspension.
d. Reduction in Pay - is a temporary reduction in salary to a lower salary step
for a specified period of time. The employee does not have stoppage of
income and may be able to have the reduction lifted by good performance.
The department does not lose the services of this employee. As with
suspension, an individual should have been warned or reprimanded prior to
taking this action.
e. Demotion - is a permanent change in classification of an employee to a
position of lower responsibility and pay for unsatisfactory performance or
disciplinary reasons. If a demotion is recommended:
(1) The letter of demotion should be specific as to the reason(s) for the
action;
(2) The employee's new duties must be consistent with those described in
the class specification for the position.
f. Discharge - is the most severe form of disciplinary action. Removal from
employment may be caused by a serious violation of the "causes for
disciplinary action," or due to violation of work rules and practices. This
action should only be taken when management is thoroughly satisfied that the
employee has been given every reasonable opportunity to meet performance
or behavior standards and clearly failed to do so.
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15.4
15.5
Causes for Disciplinary Action
Any of the following may be deemed sufficient cause for disciplinary action.
The listing herein is not intended to be limiting.
a. Unauthorized possession of city property or an employee's personal
property.
b. Willful abuse, damage, or defacing city property.
c. Misuse of city materials, equipment, or properly.
d. Neglect of duty.
e. Insubordination.
f. Violation or disregard of published safety rules or common safety
practices.
g. Sleeping onthejob.
h. Refusal or failure to perform work as assigned.
i. Refusal or failure to follow a direct order of a supervisor.
j. Loitering or willfully wasting time during working hours.
k. Gross negligence that negatively affects the quality of service or finished
product.
1. Fighting on city property or during working hours.
m. Gambling on city property.
n. Possession of alcoholic beverages, illegal/unauthorized drugs, or being
under the influence of intoxicating beverages/drugs on city property or
during working hours.
o. Illegal conduct.
p. Unauthorized selling on city property or during working hours.
q. Unauthorized possession of weapons.
r. Falsifying pay or production records.
s. Excessive absenteeism/tardiness.
t. Absence without approved leave.
u. Offensive treatment of the public or other employees.
v. Fraud in securing employment.
w. Dishonesty.
x. Incompetence. As used herein, the term "incompetence" shall mean that
the employee lacks adequate ability, knowledge, skill, or fitness to
perform the duties in a satisfactory manner which are within the scope of
the employee's employment.
y. Job abandonment.
Pre-disciplinary Proceedings
The California Supreme Court's Skelly decision provides a public employee with
certain procedural protections before discipline which impacts pay or benefits
may be imposed. Disciplinary action may be taken prior to Skelly under
extraordinary or emergency circumstances. The following procedure satisfies the
requirements of Skelly:
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15.6
a. The employee receives notice of maximum disciplinary action that may be
imposed.
b. The notice states the reasons for the proposed disciplinary action.
c. The notice contains the charges upon which the proposed disciplinary
action is based.
d. The employee is allowed access to the materials upon which the proposed
disciplinary action is based.
e. The employee is afforded the right, either orally or in writing, or both, to
respond to the proposed charges.
Notice Requirements
The notice requirements of Skelly are as follows:
a. The Skelly notice should be in writing.
b. The letter should set a date, time, and place for the employee and/or
his/her representative to respond to the charges if he/she elects to do so. The
Skelly meeting should be at least five (5) working days following the letter to
provide the employee an opportunity to respond. The letter should also
contain a request that the employee give notice if he/she elects to waive the
right to respond orally.
c. The letter should contain the maximum penalty which may be imposed.
d. The reasons for the proposed disciplinary action must be set out in detail.
The part of the Skell7 letter setting out the misconduct with which the
employee is charged must be factual so that any person reading the letter will
be able to determine the exact misconduct charged.
e. The factual allegations of misconduct must specifically cite violations of
the city's "causes for disciplinary action" as described in Section 15.4 herein.
f. The letter must advise the employee of his/her right to respond to the
charges, either orally in writing, and that the employee has a right to have any
documents upon which the charges are brought.
g. The letter must advise the employee of his/her right to representation if
he/she elects to do so.
h. The letter should advise the employee that discipline may be imposed
whether or not he/she responds to the charges.
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15.7
15.8
Copies of the Skelly letter should be sent to:
(1) The City Manager
(2) The Human Resources Manager
(3) The employee's supervisor/department head.
(4) The employee's union representative, if any.
Skelly Meeting
The Skelly meeting should be conducted as follows:
a. The authority who may impose the discipline should chair the meeting.
The person chairing the meeting should not have been involved in the initial
decision to discipline.
b. The meeting chairperson should establish that the employee has received
the Skelly notice and understands the charges set forth therein.
c. The chairperson should make available any documents which were
considered in determining the proposed charges and disciplinary action.
d. The employee or his/her representative should be given the opportunity to
respond to the proposed charges.
e. The employee or his/her representative should be given the opportunity to
make final comments regarding the proposed action.
f. The chairperson should close the meeting by indicating that he/she will
consider all statements and/or documents which may have been presented
prior to determining the final action.
The person conducting the meeting will subsequently determine whether the
charges have been established and the severity of the disciplinary action.
Action Letter
The person conducting the meeting should promptly prepare a letter containing all
of the following:
a. Factual findings. This part of the letter may, for charges which have been
established, repeat the charges as set out in the Skelly notice letter. Ifa charge
has not been established, or if facts in mitigation of a charge's seriousness
have been disclosed, the letter should so state.
b. The specific provision(s) of Section 15.4 of these rules which
were violated.
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c. The discipline imposed may not exceed the maximum stated in the Skelly
letter.
d. A statement that the employee may appeal the action consistent with the
provisions of respective memoranda of understanding or other city rule,
regulation, or policy.
15.9 FLSA Exempt Employees
Subsection 541.118(a)(5) of the Fair Labor Standards Act (FLSA) provides that pay
deductions for disciplinary reasons may only be imposed if such penalties are
imposed in good faith for infraction of safety rules of major significance. This
provision has been interpreted by the U.S. Department of Labor (DOL) because the
salary test has a general rule that an employee need not be paid in any workweek
during which no work is performed.
The form of discipline to be imposed for a violation of Section 15. 4 of these
rules will be determined based upon the circumstances of the particular case
and will be implemented in a manner consistent with and authorized by state and
federal law, including applicable provisions of the FLSA. Although suspensions
of less than five working days are not permitted for other than safety rule
infractions of major significance, consideration may be given to "equivalent
discipline" including reductions in the number of accumulated vacation or holiday
leave hours.
SECTION 16 APPEALS AND HEARINGS
16.1
Form of Appeal
All appeals to the Appointing Authority shall be in writing and shall be signed by
the employee.
16.2
Filing o__f Appeal
The filing of an appeal to the Appointing Authority shall be accomplished by the
submission of the signed written document to the Human Resources Manager who
shall be responsible for the issuance of proper notifications.
16.3
Representation
An employee submitting an appeal to the Appointing Authority may be
represented by a person of his/her choosing or may elect to represent hirrffherself;
provided, however, that when an employee is to be represented by another person
the name of that person shall be made known to the Appointing Authority at least
three days prior to the scheduled hearing or meeting. Substitution of
representation may only be as permitted by the Appointing Authority.
16.4
Who May Appeal
Any employee subject to the merit and fitness provisions of Section 2.52.040 of
the Municipal Code may file an appeal with the Appointing Authority as the final
28
step of the appeal procedure, for suspensions exceeding thirty (30) days in any
twelve (12) month period, or after notice of dismissal. Appeals from dismissal
may be filed only by employees currently holding permanent status at the time of
dismissal.
16.5
Hearings on Appeals
If deemed necessary, hearings may be held on appeals by the Appointing
Authority. The conduct of such hearings shall be as determined necessary by the
Appointing Authority to best evaluate each appeal on its merits.
SECTION 17 GRIEVANCE PROCEDURE
17.1
Definition
A grievance is a good faith dispute or difference of opinion of an employee
involving the meaning, interpretation, or application of the express provisions of a
Memorandum of Understanding, City Policy, or existing work rules, affecting the
employee, concerning a matter within the scope of representation.
17.2
Step 1
A employee (grievant) who has a grievance shall bring it to the attention of
his/her immediate supervisor within five (5) working days of the occurrence of the
act which is the basis for the dispute. If the grievant and immediate supervisor are
unable to resolve the matter within five (5) working days of the date it is raised,
the grievant has the right to submit a formal grievance to his/her next higher
supervisor.
17.3
Step 2
If the grievance is not settled at Step 1, the grievant may submit a written
grievance to the next higher supervisor within five (5) working days after the
supervisor's oral answer in Step 1. The written grievance shall contain the
following information:
a. The name, job classification, and department of the grievant.
b. The name of the grievant's immediate supervisor.
c. A statement of the nature of the grievance including date and place of
occurrence.
d. The specific provision, policy, or procedure alleged to have been violated.
e. The remedy sought by the grievant.
f. If the grievant is not self-represented, the name of the individual or
recognized employee organization designated to represent the grievant.
g. Signature of grievant and date.
The supervisor or designee shall discuss the grievance within five (5) working
days with the grievant and/or designated representative at a time mutually
29
17.4
1Z5
agreeable to the parties. Ifa settlement is not reached, a written answer to the
grievance shall be provided within five (5) working days of the meeting.
Step 3
If the grievance is not settled at Step 2, the grievant may submit the grievance in
writing to the grievant's department head, or, alternatively, if the department head
responded at Step 2, to the City Manager within five (5) working days of the Step
2 written answer. The department head/City Manager shall discuss the grievance
within five (5) working days with the grievant and/or designated representative at
a time mutually agreeable to the parties. Ifa settlement is not reached, a written
answer shall be provided within five (5) working days of the meeting.
Step _4
If the grievance is not settled at Step 3, the grievant may submit the grievance to
advisory arbitration within 14 calendar days after receipt of the decision at Step 3.
17. 6 Advisory Arbitration
a. The parties shall attempt to agree upon an advisory arbitrator within five
(5) working days after receipt of the notice of referral. In the event that parties
are unable to agree upon an advisory arbitrator within said five (5) day period,
the parties shall jointly request the State Mediation and Conciliation Service
to submit a panel of five (5) advisory arbitrators. Each party retains the right
to reject one panel in its entirety and request that a new panel be submitted.
Both the grievant/designated representative and the city shall have the right to
strike two (2) names from the panel. The parties shall alternatively
strike names until one remains. The person remaining shall be the advisory
arbitrator.
b. The advisory arbitrator shall be notified of his/her selection and shall be
requested to set a time and place for the hearing, subject to the availability of
the grievant/designated representative and the city representative.
c. The city or the grievant/designated representative have the right to
request the arbitrator to require the presence of witnesses or documents. The
city and the grievant retain the right to employ legal counsel.
d. The advisory arbitrator shall submit his/her recommendation in writing
within thirty (30) days following the close of the hearing or the submission of
briefs by the parties whichever is later.
e. More than one grievance may be submitted to the same advisory arbitrator
if both parties mutually agree in writing.
3O
17.7
f. The fees and expenses of the advisory arbitrator and the cost of a written
transcript shall be divided equally between the city and the grievant,
provided, however, that each party shall be responsible for compensating its
own representatives and witnesses.
Limitations on Authority of Advisory Arbitrator
The advisory arbitrator shall have no right to amend, modify, ignore, add to, or
subtract from the provisions of the Memorandum of Understanding, city policies,
or work rules. The advisory arbitrator shall consider and decide only the question
of fact as to whether there has been a violation, misinterpretation, or
misapplication of the specific provisions of the applicable document. The
advisory arbitrator shall be empowered to determine the issue raised by the
grievance as submitted in writing at the second step. The advisory arbitrator shall
have no authority to make a recommendation on any issue not so submitted or
raised. The advisory arbitrator shall be without power to make recommendations
contrary to or inconsistent with, in any way, applicable laws or rules and
regulations of administrative bodies that have the force and effect of the law. The
advisory arbitrator shall not in any way limit or interfere with the powers, duties
and responsibilities of the city under law and applicable court decisions. The
recommendation shall be advisory only to the Appointing Authority. The
Appointing Authority will make the final decision.
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PART H
CITYWIDE POLICIES
32
SECTION 1 AFFIRMATIVE ACTION
In accordance with and in support of equal employment opportunity as specified under
Title VII of the Civil Rights Act of 1964, as amended, it is the policy of the City Council
of the City of Cupertino to provide all applicants for employment and all employees with
equal opportunity in employment without regard to race, religious creed, color, national
origin, ancestry, mental, or physical disability, medical condition, marital status, sex, age,
or sexual orientation.
The City Council of the City of Cupertino hereby resolves as follows:
That the City of Cupertino is committed to affirmative action in the utilization of
minorities and females at all job levels and in all segments of the work force to reflect the
percentage distribution of minorities and females in each occupational category as they
are available in the labor market.
That this affirmative action policy will apply to all employment practices, such as
recruitment, selection, transfers, promotions, training, compensation, benefits and
termination. That the City of Cupertino establishes that it will seek to maintain the hiring
and/or promotion of qualified persons consistent with changing labor market patterns.
That it is the responsibility of the City Manager to ensure that this equal
employment opportunity policy is communicated to all present employees, prospective
employees, recruitment sources, and the community.
That every employee of the City of Cupertino is hereby directed to lend his and
her support and cooperation in making equal employment opportunity an integral part of
the city's program of personnel administration.
SECTION 2 ALCOHOL AND DRUG ABUSE
2.1
Purpose
The purpose of this policy is to comply with the Drug Free Work Place Act of
1988 as passed by Congress. HR5210 requires that all Federal grant recipients,
including cities, established an anti-drug policy for the work place. HR5210
require the city to:
a. Establish a drug free awareness program for employees.
b. Provide a notice to all employees specifying that drugs are illegal in the
work place and that action will be taken for violations.
c. Make employment conditional upon compliance with this policy and
require the employee to notify the employer within five working days of a
conviction due to a drug related offense occurring in the workplace.
33
d. Notify the applicable granting federal agency within ten days of an
employee's conviction due to a drug related offense occurring in the work
place.
e. Sanction employees for violation and/or require participation in a
treatment program.
f. Make a good faith effort to maintain a drug free work place by following
the above requirements.
In addition to the fact that such requirements are established by law, a drug free
policy is appropriate in that it helps ensure that employees are able to perfbrm
their duties safely and efficiently. While the City of Cupertino has no intention of
intruding into the private lives of its employees, it does believe that involvement
with drugs and alcohol can take its toll on job performance and employee safety.
A key element of this policy is rehabilitation. Employees who believe they have a
problem are urged to contact the Human Resources Division for referral to
community resources and/or the Employee Assistance Program.
The key focus of this policy is prevention through educating employees on the
dangers of alcohol and drug abuse, and rehabilitation for those who have such
problems. Any disciplinary actions will be evaluated on a case-by-case basis and
shall be used as a last resort after rehabilitation efforts have failed.
2.2 Policy
It is the City of Cupertino's policy that employees shall not drink alcohol or use
drugs in the course of city business, which shall include lunch time if the
employee plans to return to work.* Nor shall they possess alcohol or drugs while
on city property, or at work locations, or in uniform, nor shall employees sell or
provide drugs or alcohol to any employee or to any person while such employee is
on duty. Nor shall any employee have their ability to work impaired as a result of
the use of alcohol or drugs when reporting for work.
While use of medically prescribed drugs is not a violation of this policy,
failure by the employee to notify his or her supervisor before beginning work
when taking drugs which foreseeable interference with an effective performance
of duties or operation of city equipment, can result in discipline up to and
including termination. In the event there is a question regarding an employee's
ability to safely and effectively perform assigned duties while using such
medication, clearance from a qualified physician may be required.
Refusal to submit immediately to an alcohol and/or drug analysis when
requested by city management or law enforcement personnel, as a result of
* There are certain city sponsored activities which will be specifically designated that may include the
consumption of alcoholic beverages. Examples of such activities included, but are not limited to, wine
tasting classes, employee Christmas parties, Commissioner's dinners, picnics in a city park held during
non-work hours, etc.
34
2.3
2.4
reasonable suspicion, may constitute insubordination and may be grounds for
discipline up to and including termination.
Employees reasonably believed to be under the influence of alcohol or drugs
shall be prevented from engaging in further city work and shall be detained for a
reasonable time until he or she can be safely transported from the work site.
Higher standards may be promulgated based upon specific job requirements as
determined by city management.
Application
This policy applies to all city employees. This policy applies to alcohol and to all
substances, drugs or medications, legal or illegal, which could impair an
employee's ability to effectively and safely perform the functions of the job.
Employee Responsibilities
An employee must:
a. Not report to work while his or her ability to perform job duties is
impaired due to alcohol or drug use.
b. Not directly, or through a third party, sell or provide drugs or alcohol to
any person, including any employee while either employee or both employees
are on duty.
c. Submit immediately to an alcohol and/or drug test when reasonable
suspicion of alcohol and/or drug use exists on the job and when requested by a
responsible city representative.
d. Notify his or her supervisor before beginning work when taking any
medications or drugs, prescription or non-prescription, which may interfere
with the safe and effective performance of duties including operation of city
equipment.
e. Provide within 24 hours of request bonafide verification of a current valid
prescription for any potentially impairing drug or medication identified when
a drug screen is positive.
f. Notify the City of Cupertino within five working days after being
convicted of any drug related offense.
g. Notify the appropriate first-line supervisor upon observation of another
city employee whose behavior and/or physical characteristics are reasonably
suspicious and possibly harmful to himself/herself and/or others.
35
2. 5 Management Responsibilities and Guidelines
2.6
a. Managers and supervisors are responsible for understanding this policy
and applying it without bias or prejudice.
b. Managers and supervisors must avail themselves of training on the
employer's role in handling the special problems of employees who suffer
from alcohol or drug dependency.
c. Managers and supervisors may request that an employee submit to a
fitness-for-duty examination when there is reasonable suspicion that an
employee is impaired, and is unable to perform the job duties required in a
safe and efficient manner. When doing so, the manager or supervisor is
required to document, in writing, the facts and circumstances leading to the
reasonable suspicion that the employee was impaired and could not perform
safely onthejob. (Note: First-line supervisors should consult with their
supervisors, department directors and Human Resources Manager, and a joint
decision should be made as to whether or not the employee should undergo a
fitness for duty medical examination.
d. When there is a reasonable suspicion that the employee is impaired, the
manager or supervisor must attempt to detain the employee until the employee
can be safely transported from the work place. If the employee refuses to
submit to the fitness-for-duty examination, or attempts to leave before safe
transport can be found, the manager or supervisor shall remind the employee
of the requirements and disciplinary consequences of this policy.
e. Managers and supervisors shall notify their department directors or
designee, when there is reasonable suspicion that an employee may have
illegal drugs in his or her possession. If the department director or designee
concurs that there is reasonable suspicion of illegal drug possession, the
department director shall notify the appropriate law enforcement agency.
f. Directors and supervisors must use the reasonable suspicion standards in
determining whether a fitness-for-duty examination is warranted. Examples
of what could lead to a reasonable suspicion of impairment are: l) slurred
speech; 2) alcohol odor on breath; 3) unsteady walking and movement; 4) size
of pupils and their reaction to light; 5) an accident involving city property; 6)
verbal altercation; 7) unusual behavior; 8) possession of alcohol or drugs; and
9) information obtained from a reliable person with personal knowledge. The
above is not an exclusive list.
Physical Examination and Drug Screening Procedures
The drug and/or alcohol screening may test for any substance which could impair
an employee's ability to effectively and safely perform the functions of his/her
36
2.7
2.8
assigned job duties, including but not limited to prescription medications, heroin,
cocaine, barbiturates, amphetamines, marijuana, and alcohol. The examination
will be conducted by a licensed physician in a local medical facility. The drug
testing will be conducted by a licensed toxicologist in a laboratory identified as
having met all legal requirements for performing such tests. The initial type of
screening to be performed can be either a blood or urine analysis at the employees
option. Positive results must be confirmed in accordance with federal regulations
including prescribed test levels.
Fit-For-Duty Examinations
a. A positive result from a drag and/or alcohol analysis may result in
disciplinary action, up to and including discharge.
b. If the drug screen is positive, the employee may provide, within 24-hours
of request, bonafide verification of a valid current prescription for the drug
identified in the drug screen. The prescription must be in the employee's
name.
c. If an alcohol or drug test is positive, the supervisor or department director
and the Human Resources Manager shall review the employee's record to
make a determination as to the possibility of rehabilitation for the purpose of
returning the employee to his or her assignment; or, after following
rehabilitation, whether to reassign the employee or precede with disciplinary
action, up to an including discharge. A positive test for an illegal drug will be
considered impairing to the employee's ability to perform his or her job, and
therefore the corrective provisions of this policy will apply
Confidentiality
Laboratory reports or test results shall not appear in the employee's general
personnel folder. Information of this nature will be contained in a separate
confidential medical folder and securely kept under the control of the Human
Resources Manager. Reports of test results may be disclosed to the Human
Resources Manager strictly on a need-to-know basis, and to the tested employee
upon request. Disclosures without the employee's consent may also occur
when
a. The information is compelled by law or by judicial or administrative
process.
b. The information is to be used in administering an employee benefit plan.
c. The information is needed by medical personnel for the diagnosis or
treatment of the patient who is unable to authorize disclosure.
37
2.9
2.10
Appeal Process
Fit-For-Duty Examinations:
Employees whose tests results are positive, and who are consequently facing
disciplinary action may appeal pursuant to the provisions of the Memoranda of
Understanding and/or Personnel Rules.
The city will conduct drug and alcohol awareness programs, presented by the
Human Resources Division. These programs will include prevention and
detection methods, with emphasis on maintaining a drug free work place.
Additionally, printed material will be given to all employees explaining the
dangers of alcohol and drug abuse. All employees will be given a copy of this
policy.
SECTION 3 SEXUAL HARASSMENT
3.1
Policy Statement
The City of Cupertino opposes all forms of sexual harassment on the job and in
the work site, including acts of employees and non-employees. The city is
committed to providing a work environment in which employees are treated
with respect and dignity and which is free from discrimination. Sexual
harassment, or harassment for any reason }~y another employee or supervisor, will
not be tolerated and is subject to disciplinary action up to and including discharge.
All employees share in the responsibility of ensuring a working environment free
of sexual harassment.
3.3
Definition
Sexual harassment shall be defined as unwelcome sexual advances, requests for
sexual favors and other verbal or physical conduct of a sexual nature when such
conduct is made explicitly or implicitly a term or condition of employment, is
used as a basis for employment decisions, or has the purpose or effect of
unreasonably interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment.
Examples
a. Written: suggestive or obscene letters; notes; invitations.
b. Verbal: derogatory comments; slurs; jokes
c. Physical: assault; touching; impeding or blocking movements; or any
physical interference with normal work.
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3.4
d. Visual: leering; sexually-oriented gestures; or display of sexually
suggestive or derogatory objects, pictures, cartoons, or posters.
e. Others: threat or insinuation that lack of sexual favors will result in
reprisal; withholding support.
Complaint Procedure
Employees who are the victim of, or witness to, any form of discrimination or
sexual harassment must report the incident to their supervisor, department head,
or the Human Resources Manager. Supervisory personnel have a duty to report
violations that come to their attention and to take appropriate action.
Confidentiality is stressed because of the sensitive nature of the complaint.
a. The basis of the complaint is that the behavior, practice or action is
discriminatory or offensive and constitutes prohibited discrimination or
harassment. Examination of the nature and circumstances of each complaint
will determine whether the alleged acts or practices constitute discrimination
or sexual harassment.
b. Complaints must be submitted in writing.
c. Complaints may include a suggested method of resolntion and corrective
action.
d. The employee has the choice of submitting the complaint to his/her
supervisor, department head, or the Human Resources Manager.
e. Upon receipt of the complaint, the Human Resources Manager or a neutral
third party will promptly investigate the charges including contacting the
person who allegedly engaged in the sexual harassment, informing him or her
of the basis of the complaint and providing an opportunity to respond.
f. Upon completion of the investigation, the Human Resources Manager, in
consultation with the department head, will determine what, if any,
disciplinary action will be recommended to the City Manager. If sexual
harassment or other inappropriate behavior is found, appropriate action will be
taken to end the harassment or inappropriate behavior. Both parties will be
notified of the action to be taken.
g. If it is determined that sexual harassment occurred, or it is found that
inappropriate actions or comments occurred that could offend a reasonable
person, appropriate disciplinary action up to and including dismissal will be
taken. Disciplinary action taken under this procedure may be appealed
consistent with provisions within Memoranda of Understanding or the
Personnel Rules.
39
3.5 Responsibilities
a. The City Manager is responsible for enforcement of the city policy against
any type of harassment.
b. The Human Resources Manager is responsible for ensuring that all
complaints of harassment are investigated in a confidential, thorough, and
prompt manner, including presentation of recommendations for any necessary
action to the City Manager.
c. Every department head is responsible for informing all employees,
including supervisors, of the city policy against harassment and for taking the
steps necessary to set a positive example in the prevention of harassment.
d. Every supervisor of every city employee is responsible for taking
immediate and appropriate corrective action upon the observation of any
incident of harassment or upon receipt of an oral or written report of any
occurrence of harassment.
e. Every city employee is responsible for reporting any act of harassment to
the immediate supervisor, department head, or Human Resources Manager.
3.6. Penalties
a. Violation of this policy shall generally constitute just and reasonable cause
for discipline, up to and including termination.
b. In addition, an individual may be found to be personally liable when they
engage in or take no action to prevent sexual harassment.
3. 7 No Retaliation
No one, acting in good faith, who initiates a complaint or reports an incident
under this policy will be subject to retaliation.
SECTION 4 AMERICANS WITH DISABILITIES ACT
4.1
Purpose
The purpose of this policy is:
a. to prohibit and eliminate any discrimination in employment against a
qualified individual with a disability;
b. to define what constitutes "disability";
4O
c. to define who is a "qualified individual with a disability";
d. to define discrimination on the basis of disability; and
e. to establish a procedure for investigating and resolving internal disability
discrimination complaints.
4.2
4.3
Policy
Discrimination on the basis of disability against an applicant or an employee who
is a qualified individual with a disability, by a supervisor, management employee,
or co-worker is not condoned and will not be tolerated. This policy applies to the
job application process and to all terms and conditions of employment including,
but not limited to, hiring, placement, promotion, disciplinary action, layoff, recall,
transfer, leave of absence, compensation and training.
All complaints of discrimination on the basis of disability will be promptly and
objectively investigated.
Disciplinary action up to and including termination will be instituted for behavior
described in the definition of discrimination on the basis of disability set forth
below.
Any retaliation against a person for filing a discrimination charge or making a
discrimination complaint is prohibited.
Definitions
Disability: (1) a physical or mental impairment that substantially limits
one or more major life activity; or (2) having a record of such an
impairment; or (3) being regarded as having such an impairment.
Physical or Mental Impairments Physical or mental impairments include,
but are not limited to: vision, speech and hearing impairments; emotional
disturbances and mental illness; seizure disorders; mental retardation;
orthopedic and neuromotor disabilities; learning disabilities; diabetes;
heart disease; nervous conditions; cancer, asthma; Hepatitis B; HIV
infection; and drug addiction if the addict has successfully completed or is
participating in a rehabilitation program and no longer uses illegal drugs.
The following conditions are not physical or mental impairments:
transvestitism; illegal drug use; homosexuality and bisexuality;
compulsive gambling, kleptomania; pyromania; pedophilia; exhibitionism;
and voyeurism; pregnancy; height, weight; eye color; hair color; left-
41
handedness; poverty; lack of education; a prison record; and poor judgment or
quick temper if not symptoms of a mental or physiological disorder.
C. Substantial Limitation of Major Life Activities An individual is disabled if
he or she has a physical or mental impairment that (a) renders him or her
unable to perform a major life activity, or that (b) substantially limits the
condition, manner or duration under which he or she can perform a particular
major life activity in comparison to other people.
Major life activities are functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working.
In determining whether physical or mental impairment substantially limits the
condition, manner or duration under which an individual can perform a
particular major life activity in comparison to other people, the following
factors shall be considered:
(1) the nature and severity of the impairment;
(2) the duration or expected duration of the impairment; and
(3) the permanent or long-term impact (or expected impact) of or
resulting from the impairment.
In determining whether a physical or mental impairment substantially limits an
individual with respect to the major life activity of "working" the following
factors should be considered:
(1) the geographical area to which the individual has reasonable access;
(2) the job from which the individual has been disqualified because of an
impairment and the number and types of jobs within that geographical
area utilizing similar training, knowledge, skills or abilities from which
the individual is also disqualified because of the impairment; and/or
(3) the number and types of other jobs within that geographical area not
utilizing similar training, knowledge, skills or abilities (to the job from
which disqualified) from which the individual is also disqualified because
of the impairment (broad range of jobs in various classes).
Having a Record of Impairment An individual is disabled if he or she has
a history of having an impairment that substantially limits the performance
of a major life activity; or has been diagnosed, correctly or incorrectly, as
having such an impairment.
42
Regarded as Having a Disability An individual is disabled if he or she is
treated or perceived as having an impairment that substantially limits
major life activities, although no such impairment exists.
Qualified Individual with a Disability A "qualified individual with a
disability" is a person who (1) satisfies the job related requirements for the
position, and (2) can perform the "essential functions" of the position
despite their disability, or who (3) with "reasonable accommodation" can
perform the essential functions of the position.
(1) Satisfied Job-Related Requirements
Satisfying the job-related requirements of the position means that the
disabled individual possesses the appropriate educational background,
employment experience, skills, and license required for the position.
(2) Essential Factors
Essential functions are the fundamental duties of a position. Marginal or
peripheral functions of a position are not essential functions.
A function may be essential because:
(a) the reason the position exists is to perform that function;
(b) of the limited number of employees available an~ong whom the
performance of that job function can be distributed; and
(c) it is highly specialized and requires specific expertise or skill to
perform.
The following factors shall be considered in determining whether a
function is essential; the agency's judgment as to which functions are
essential; written job descriptions; the amount of time spent on the job
performing the function; the consequences of not requiring the
performance of the function; the terms of a collective bargaining
agreement or MOU; and the work experience of past and present
incumbents in the position.
(3) Accommodation
If the individual cannot perform the essential functions despite their
disability, is to determine whether reasonable accommodation would
enable the individual to perform the essential functions of the position.
Accommodation is any change in the work environment or in the way
things are customarily done that enables a disabled individual to enjoy
equal employment opportunities. Accommodation means modifications or
adjustments:
43
(a) to a job application process to enable an individual with a
disability to be considered for the position;
(b) to the work environment in which a position is performed so that a
disabled person can perform the essential functions of the position; and
(c) that enable disabled individuals to enjoy equal benefits and
privileges of employment as other similarly situated employees
without disabilities enjoy.
Accommodation includes making existing facilities and equipment
used by employees readily accessible to and usable by individuals with
disabilities.
Accommodation applies to:
(a) all employment decisions and to the job application process;
(b) all services and programs provided in connection with
employment; non-work facilities provided by the agency to all
employees; and known disabilities only.
Accommodation is not required if:
(a) it eliminates essential functions of a position from the disabled
individual's job; or adjustments or modifications requested are
primarily for the benefit of the disabled individual.
(4) Undue Hardship Agency will 'not provide an accommodation that
imposes an "undue hardship" on the operation of the agency's business.
Undue hardship means significant difficulty or expense incurred in the
provision of accommodation. Undue hardship includes but is not limited
to financial difficulty. Undue hardship refers to any accommodation that
would be unduly costly, extensive, substantial or disruptive, or that would
fundamentally alter the nature or operation of the business.
Whether a particular accommodation will impose an undue hardship is
determined on a case-by-case basis. The following factors will be
considered in determining whether an accommodation would creme an
undue hardship: the nature and cost of the accommodation; the financial
resources of the agency; the number of employees' and the type of
operations of the agency, including the composition and functions of its
work force.
44
(5) Determining the Appropriate Accommodation If a qualified
individual with a disability requests the provision of a reasonable
accommodation, the agency shall engage in an in/brmal, interactive process
with the disabled person which identifies the precise limitations resulting from
the disability and the potential accommodations that could overcome those
limitations.
The accommodation process shall generally involve five steps. First,
the agency shall analyze the particular job at issue and determine its
purpose and essential functions. Second, the agency shall consult with the
disabled individual to ascertain the precise job-related limitations imposed
by the individual's disability. Third, the agency shall consult with the
disabled individual to identify potential accommodations. Fourth, the
agency shall assess the effectiveness of each potential accommodation
with regard to enabling the individual to perform the essential functions of
the position. Finally, the agency shall consider the preference of the
individual to be accommodated and select and implement the
accommodation that is most appropriate for both the employee and the
agency.
g. Discrimination on the Basis of Disability
Discrimination on the basis of disability means:
(1) to limit, segregate, or classify a job applicant or employee in a way that
may adversely affect opportunities or status because of the applicant's or
employee's disability;
(2) to participate in a contract which could subject an applicant or employee
with a disability to discrimination;
(3) to use any standards, criteria or method of administration which could
have the effect of discriminating on the basis of disability;
(4) to deny equal jobs or benefits because of a disability;
(5) to fail to make reasonable accommodations to known physical or mental
limitations of an otherwise qualified individual unless it can be shown that the
accommodation would impose an undue hardship;
(6) to use a selection criteria which excludes a disabled person unless the
criteria is job-related and consistent with business necessity; and
45
(7) to fail to use employment tests in a manner that ensures that the test
results accurately reflect the applicant's or employee's skills or aptitude for a
particular job.
4.4 Complaint Procedure
a. A job applicant or employee who believes he or she has been
discriminated against on the basis of disability may make a written complaint
as soon as possible after the incident to: (a) complainant's immediate
supervisor; (b) complainant's department head; or (c) the Human Resources
Manager, who has been designated to coordinate agency's efforts to comply
with federal and state laws concerning employment discrimination on the
basis of disability.
In order to facilitate the investigation, the complainant is encouraged to
submit the complaint within 30 days of the alleged incident(s). Where
reasonable cimumstances prevent the filing of the complaint within this time
period, complaints received after this time period may be accepted.
b. The complaint shall include:
· a description of the offending behavior(s) or violations;
· date(s), time(s) and location(s) of incident(s);
· name(s) of alleged offender(s);
· name(s) of witnesses, if any; and remedy desired.
c. The complainant's immediate supervisor or department head shall refer all
complaints received to the Human Resources Manager.
Upon receipt of a complaint, the Human Resources Manager shall
investigate all charges. The investigation shall include interviews with:
(a) the complainant; (b) the person(s) allegedly engaged in discrimination,
and (c) any other person believed to have relevant knowledge concerning
the complaint.
e. Upon completion of the investigation, the Human Resources Manager
shall review the information gathered through the investigation to determine
whether the alleged conduct constitutes discrimination, giving consideration to
all factual information, the totality of the circumstances, including the nature
of the alleged discriminatory conduct and the context in which the alleged
incidents occurred.
f. The Human Resources Manager shall then prepare a written report setting
forth the result of the investigation and the determination as to whether
discrimination occurred. The results of the investigation shall be conveyed
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to appropriate persons including to the complainant, the person(s) allegedly
engaged in discrimination, the supervisor, and the department head.
g. If it is determined that discrimination occurred, swift and appropriate
disciplinary action will be commensurate with the severity and/or frequency of
the offense.
h. Reasonable steps shall be taken to protect the victim and other potential
victims from further discrimination.
i. Reasonable steps shall be taken to protect the victim from retaliation as a
result of communicating the complaint.
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SECTION 5 FAMILY LEAVE
Effective August 5, 1993 the Family Leave Act became effective and pertains to
all local governments and other employers with more than 50 employees.
Family and Medical Leave (FMLA leave) provides employees with the right to
take family care and medical leave for up to 12 work weeks during any 12 month period
if he/she: 1) has been employed for at least 12 months; and 2) has worked at least 1250
hours during the last 12 months. The city requires an employee to use accrued sick leave
which becomes part of the leave entitlement.
FMLA leave can be taken because of: 1) The birth of a child of an employee. 2) The
placement of a child with an employee in connection with the adoption of a child by an
employee. 3) The serious illness of a child of an employee or to care for a parent or a
spouse who has a serious health condition; or 4) a serious health condition that makes the
employee unable to perform the functions of their position.
During any FMLA leave the city must maintain the employee's coverage under any
group health plan on the same conditions as coverage would have been provided if the
employee had been continuously employed during the entire leave period. Other benefits
can be maintained at the employee's cost. If an employee fails to return from leave, the
employer has a right to reimbursement for the group health costs during the time of the
leave. There are two exceptions to the preceding: 1) The employee is too ill to return; or,
2) The employer believes grievous economic injury will result if that employee is
reinstated.
An employee should provide as much advance notice as possible of the date of the
Family Medical Leave being requested and an estimated duration.
The employer shall respond to the leave request as soon as possible. When granting
FMLA leave, the employer shall provide the employee with the following notice: I) that
the leave will be counted as FMLA leave; 2) any requirements for the employee to
provide medical certification; 3) the employee's need to use paid leave where applicable;
4) any requirement of the employee to make payment to maintain benefits and the
arrangements for making such payments; 5) any requirements that the employee provide
a fitness-for-duty certificate to be restored to employment; 6) the employee's status as
"key"'* employee and the potential consequences that restoration may be denied; 7) the
employee's right to restoration to the same or an equivalent position upon return from
leave; and 8) the employee's potential liability for payment of health insurance premiums
paid by the employer during the employee's unpaid leave if the employee fails to return
to work after taking leave.
** "key" employee is an employee who is among the highest paid ten percent of all the City of Cupertino
employees.
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SECTION 6 REIMBURSEMENT OF EXPENSES
6.1
Personal Vehicles
Employees who are required to use their personal vehicles for city business shall
be reimbursed for such use at an appropriate rate to be determined by a schedule
adopted by the City Council. Submission of a request for reimbursement must be
approved by the department head.
Exceptions to the foregoing paragraph are: City Manager, department heads,
Recreation Supervisors, Traffic Engineer, Building Official and the Public
Information Officer. The pay rate of each includes an allowance for the use of
their personal vehicles. However, should any of the identified persons travel in
excess of two hundred miles round trip they would be eligible for reimbursement
at the established rate.
Reimbursements
Employees who are required to advance personal funds for conferences, meetings,
or the purchase of minor materials and supplies or for other approved services
during the performance of or arising out of the duties assigned to the employees
work shall be reimbursed for funds so expended. The Appointing Authority may
prescribe such administrative rules and regulations governing the allowable kinds
and amounts of such reimbursable expenditures and the methods and procedures
usable to substantiate and process submitted claims.
SECTION 7 SPECIAL CONDITIONS
7.1
Training Programs
It shall be the policy of the city to encourage employee participation in training
programs which will be of benefit to the employee and the city in the better
performance of his/her work and as a means of providing assistance to the
employee qualifying for promotional opportunities. The Appointing Authority
may prescribe suitable regulations and guidelines under which such programs may
be administered.
7.2
7.3
Suggestion System
Suggestions of employees relating to the improvement of work related matters
shall be encouraged. The means of receiving, processing and implementing such
suggestions as welt as the method of giving appropriate recognition thereto shall
be as prescribed by the Appointing Authority.
Hospitalization, Medical, Dental and Life Insurance Programs
It shall be the policy of the city to provide suitable group hospitalization,
medical, dental, life insurance programs and income protection under which
employees and their dependents may be covered. The needs of the employees
shall be given due consideration.
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7.4
Memorandum of Understanding
Rules relating to those matters of mutual interest and concern between city
management and city employees which are subject to meeting and conferring in
good faith shall be as mutually agreed to between the parties and as approved by
the City Council in Memoranda of Understanding. In the absence of such
memoranda the rules contained herein shall apply wherever applicable. In the
absence of any specific rule on any given matter the City Manager in that capacity
or as Appointing Authority shall establish suitable policies by administrative
regulations and orders which shall be considered as supplemental hereto unless or
until amended or superseded.
SECTION 8 WORKPLACE VIOLENCE
8.1 Policy
8.2
8.3
The City of Cupertino is firmly committed to providing a workplace that is free
from violence and the threat of violence. In keeping wiuth this commitment, the
city has established a strict policy that prohibits any employee from threatening or
committing any act of violence in the workplace. Employees are also prohibited
from having in their possession weapons including firearms and knives, other than
pocket knives or knives commonly used as tools, in the workplace.
Definition
Workplace Violence includes but is not ;limited to harassment, threats, physical
attack, or property damage.
Threat is the expression of an intent to cause physical or mental harm. An
expression constitutes a threat without regard to whether the party communicating
the threat has the present ability to carry it out and without regard to whether the
expression is contingent, conditional, or future.
Physical Attack is unwanted or hostile physical contact such as hitting, fighting,
pushing, shoving, or throwing objects.
Property Damage is intentional damage to property that includes property
belonging to the City of Cupertino, employees, visitors, or other persons.
Zero Tolerance
Violence, or the threat of violence, against or by any employee or any other
person is not acceptable.
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8.4
8.5
Should a non-employee, on City of Cupertino property, demonstrate or
threaten violent behavior, he/she may be subject to criminal prosecmion.
(2)
Should an employee, during working hours, demonstrate or threaten
violent behavior, he/she may be subject to disciplinary action up to and
including discharge.
Violent Acts
The following actions are considered violent acts:
(1) Striking, punching, slapping or assaulting another person.
(2) Fighting or challenging another person to fight.
(3)
Grabbing, pinching or touching another person in an unwanted way
whether sexually or otherwise.
(4) Engaging in dangerous, threatening or unwanted horseplay.
Possession, use, or threat of use, of a gun, knife, or other weapon of any
kind in the workplace, including parking lots, work sites, city vehicles, or
while engaged iun activities for the City of Cupertino in other locations.
(6)
Threatening harm or harming another person, or any other action or
conduct that implies the threat of bodily harm.
Reporting Violent Acts
Any employee who is the victim of any violent, threatening, or harassing conduct
in the workplace, any witness to such conduct, or anyone receiving a report of
such conduct, whether the perpetrator is a city employee or a non-employee, shall
immediately report the incident to their immediate supervisor or other appropriate
person in the chain of command. A written report shall immediately be prepared
and delivered to the Human Resources Manager. Failure to report a workplace
violence situation or file a written report shall be cause for disciplinary action up
to and including discharge.
8.6 Workplace Violence Written Report
The written report shall be objective and include facts including time,
observations, statements made by the parties involved in the workplace violence
encounter, names of witnesses to the incident, and other relevant information that
may be beneficial to the investigation.
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8.7 No Retaliation
No one, acting in good faith, who initiates a complaint or reports an incident
under this policy will be subject to retaliation or harassment.
8.8 Investigation
Upon notification of a workplace violence report, the Human Resources Manager
shall immediately conduct an investigation. A written report including findings
and recommendations shall be submitted to the City Manager.
8.9 Due Process
Any employee, if found to be a perpetrator, will be provided due process prior to
any disciplinary action pursuant to the provisions of a memoranda of
understanding or the Administrative Rules and Regulations of the Personnel
Code.
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