CC Resolution No. 9137
RESOLUTION NO. 9137
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING THE RULES ON CONDITIONS OF EMPLOYMENT
WHEREAS, the Rules on Conditions of Employment need to be modified in order
to conform with the Memoranda of Understanding between City of Cupertino and the
Miscellaneous Employees Unit and Public Works Unit;
NOW, THEREFORE, BE IT RESOLVED that the Rules on Conditions of
Employment be amended as shown in Attachment "A" which is incorporated in this
resolution by reference.
PASSED AND ADOPTED a regular meeting of the City Council of the City of
Cupertino this 5th day of July, 1994 by the following vote:
VOTE
MEMBERS OF THE CITY COUNCIL
AYES:
Bautista, Burnett, Dean, Sorensen, Koppel
NOES:
None
ABSENT:
None
ABSTAIN:
None
APPROVED:
181 Barbara Koppel
Mayor, City of Cupertino
ATTEST:
181 Kim M. Smith
City Clerk
RULES ON CONDnßONS OF EMPLOYMENT
INDEX
CatelJory Section Subiect Page
GENERAL ADMINISTRATION 1.0 Purpose 1
1.1 Policy 1
1.2 Administration 1
1.3 Interpretation 1
1.4 Coverage 1
1.5 Repeal of Existing Rules 1
1.6 Amendments to Rules 2
1.7 Effective Date 2
RECRUITMENT AND 2.0 Techniques of Recruitment 2
RETENTION 2.1 Examinations 2
2.2 Eligibility Lists 2
2.3 Selection of Employees 3
2.4 Appointment Approval 3
APPOINTMENTS AND 3.0 Appointments 3
EMPLOYEE STATUS 3.1 Certified Status 3
3.2 Probationary Status 4
3.3 Provisional Status 4
3.4 Temporary Status 4
3.5 Exempt Status 4
INTER-POSITION TRANSFERS 4.0 Promotions 4
OF EMPLOYEES 4.1 Transfers. 4
4.2 Voluntary Reductions 5
4.3 Demotions 5
CITYWIDE POLICIES 5.0
5.1 Discrimination! Affirmative Action 5
5.2 Alcohol & Drug Abuse Policy 6
5.3 Sexual Harassment 11
5.4 American Disabilities Act 12
5.5 Family Leave Policy 18
DISCIPLINARY ACTIONS 6.0 Warning Notices 19
6.1 Suspensions 20
6.2 Dismissals 20
6.3 Discharges 20
6.4 Due Process 20
Category Section Subiect Page
APPEALS AND HEARINGS 7.0 Form of Appeal 20
7.1 Filing of Appeal 20
7.2 Representation 21
7.3 Who May Appeal 21
7.4 Hearings on Appeals 21
GRIEVANCE PROCEDURE 8.0 Grievance Procedure 21
ATTENDANCE AND LEA YES 9.0 Hours of Work 23
OF ABSENCE 9.1 Holidays 23
9.1.6 Holiday Pay 24
9.2 Vacations 24
9.3 Sick Leave 26
9.3.1 Personal Leave 27
9.3.2 Family Leave 27
9.3.3 Bereavement Leave 27
9.3.4 Absence Notification 27
9.3.5 Unused Sick Leave 28
9.4 Leaves of Absence 28
9.5 Military Leave 28
9.6 Jury Duty 28
9.7 Temporary Disability Benefits 28
9.8 Pregnancy Disability Leave 29
9,9 Adoption Leave 29
9.9.1 Catastrophic Leave 29
9.9.2 Attendance 30
10.0 Overtime 30
10.1 Non-Exempt Overtime 30
10.2 Management & Confidential Overtime 31
10.3 Stand-by-pay 31
OTHER CONDITIONS 11.0 Continuous Service 31
OF EMPLOYMENT 11.1 Reimbursement Travel & Expenses 31
11.1.2 Reimbursements 31
11.2 Resignations 31
11.3 Layoffs 32
11.3,1 Reinstatements 32
11.4 Seniority 32
11.5 Training Programs 32
11.6 Suggestion System 32
11.7 Medical, Dental & Life Insurance 32
EMPLOYEE-EMPLOYER 12 Memoranda of Understanding 33
RELATIONS
CITY OF CUPERTINO
RULES
ON
CONDITIONS OF EMPLOYMENT
GENERAL ADMINISTRATION
Section 1. 0 Puroose
The purpose of these Rules shall be to provide the basis of common understanding
between supervisors and employees as to terms and conditions of employment insofar as they
are not superseded by a formally adopted Memorandum of Understanding for such terms and
conditions of employment as are pennitted for inclusion therein under the provisions of
Chapter 6 of the Personnel Code, Employer-Employee Relation
Section 1.1 Policv
The policy under which these Rules shall be administered is one of fairness both to the
employee and the City and of unifonnity of action so that all may be aware of the duties and
responsibilities of the employee in this regard as well as the rights and privileges of
employment with the City..
Section 1.2 Administration
The administration of these Rules is hereby invested in the Personnel Officer subject to
administrative policies as set forth by the City Manager, who is the Appointing Authority.
Section 1.3 Interoretation
Any interpretation, definition or meaning of any proVIsIon, term or c condition
contained herein shall be as set forth in writing by the Personnel Officer whose interpretations,
definition or meaning shall be considered as being supplemental hereto.
Section 1.4 Coverage
All officers, employees and positions shall be subject to these Rules save and except
for those officers, employees and positions specifically enumerated herein below.
a) All Elected Officers
b) City Manager
c) Assistant City Manager
d) City Attorney
e) City Prosecutor
f) Chairmen and members of appointed boards, commission and committees
g) Persons engaged under contract to supply expert, professional, technical or
other services.
Section 1.5 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.
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Section 1.6 Amendments to Rules
Amendments to and modifications of these Rules shall be as set forth in the Personnel
Code.
Section 1. 7 Effective Date
These Rules shall be filed with the City Clerk on adoption by the City Council and
shall become effective immediately thereafter.
RECRUITMENT AND RETENTION
Section 2.0 Techniques of Recruitment
Recruitment of employees for positions in the City shall be the responsibility of the
Personnel Officer who may request the advice and assistance of or delegate the function to a
Department Head with hislher .consent. The techniques and procedures of recruitment shall be
those most effective in attracting qualified applicants for positions with the City without
regard to race, religion, sex, national origin, political background, or sexual preference.
Section 2.1 Examination.
Examinations shall be prepared and administered to test fairly the fitness of applicants.
Said examinations shall be comprised of anyone or more processes of written, oral, physical
fitness, unassembled or such other method as can serve the purpose of determining the skills
and knowledge, qualification or fitness of the applicant. The determination as to the processes
that will be used for each position classification shall be that of the Personnel Office who may
obtain and utilize such assistant as may be required to fulfill the intent of this section. Said
examinations may be competitive or noncompetitive; provided, however, that advance public
notice be advertised prior to each such competitive examination as to the method by which the
eligible list shall be prepared. its effective life, weighting factors and such other detail that
may provide the applicants with a better understanding of the examination and selection
process for the position for which he/she is applying.
Section 2.2 Eligibilitv Lists
Whenever competitive examinations are administered the names of successful
applicants thereto shall be placed on lists ITom which appointments thereITom shall be made
during the effective term ofthe list. Eligibility lists may be constructed so as to give numerical
rankings of successful applicants or in category groupings when said lists are obtained ITom
examinations administered in that manner or ITom examinations administered on a pass-fail
basis.
Employment lists shall remain in effect for one year unless exhausted sooner or
abolished by the Personnel Officer. Employment lists may be extended for up to an additional
year by actions of the Personnel Officer,
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Section 2.3 Selection of Employees
The selection of a successful applicant for a position with the City shall be made by the
Department Head having supervisory control of the position to be filled. The Department
Head shall recommend such selection of the Appointing Authority who may approve or
disapprove an appointment.
If the selection of a successful applicant is to be made ITom an eligibility list
constructed by numerical ranking the person selected shall be ITom one of the three highest
available persons on the list. If the selection of a successful applicant is to be made ITom an
eligibility list constructed by category groupings the person selected shall be ITom among
those available in the highest category before a selection may be made from a lower category.
Section 2.4 ADpointment ADDroval
All appointments whether ITom eligibility lists or not and irrespective of the type of
position to which one is made shall be approved by the Appointing Authority before becoming
effective.
APPOINTMENTS AND EMPLOYEE STATUS
Section 3.0 Appointments
All appointments to positions subject to Jurisdiction B of the Personnel Code and as
approved by the Appointing Authority shall be made in one of the following named manners
and the affected employee shall be granted the same status accordingly.
Section 3.1 Certified Status
Certified status shall be granted to all employees occupying positIOns subject to
Jurisdiction B who have successfully completed their probationary period when either
appointed ITom an eligible list or as the result of having successfully completed an examination
for the appointment.
One of four jurisdictions created by the Personnel Code. Jurisdiction B establishes the
provisions and conditions for the appointment, employment and retention of subject
employees on a basis of merit and fitness. The following offices, positions and employees are
excluded ITom Jurisdiction B: All elected offices, City Manager, Assistant City Manager, City
Attorney, City Prosecutor, Chairmen and Members of appointed boards, commissions and
committees, persons engaged under contract to supply services, Department Heads,
employees occupying positions whose principal job requirement is good physical fitness and
employees serving under appointments of provisional, exempt, temporary or emergency
status. Cupertino. Personnel Code, title XII, Chapter 1, Article 2, p. 2 and Chapter 4, Article
1, p. 8.
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Section 3.2 Probationary Status
Probationary status shall be granted to all employees occupying positions subject to
Jurisdiction B who have been appointed from an eligibility list or when none is available as the
result of having successfully completed an exanñnation for the appointment. The probationary
period may be not less than three (3) months nor more than twelve (12) months and shall be
as specified for each class of positions unless when in the absence of a specified duration it
shall be six (6) months.
Section 3.3 Provisional Status
Provisional status shall be granted to all employees who are appointed on other than a
temporary basis to positions subject to Jurisdiction B but for which no eligible lists exists.
Said provisional appointments shall be terminated no later than one hundred eight (180) days
after appointment.
Section 3.4 Temporarv Status
Temporary status shall be granted to all employees appointed for work on a seasonal,
less than one-halftime or to other non-permanent work. Full time employment in any position
under a temporary appointment shall not exceed 120 days in any twelve (12) month period.
Section 3.5 ExemDt Status
Exempt status shall be granted to all employees occupying positions not subject to
Jurisdiction B of the Personnel Code.
INTER-POSmON TRANSFERS OF EMPLOYEES
Section 4.0 Promotions
A promotion shall be defined as the appointment of a certified or exempt employee
occupying a position in a lower classification to a vacant position in a higher classification.
Promotions may be made on a non-competitive or closed-competitive basis
irrespective of the existence of eligible lists for the same position classification which may
have been constructed from open-competitive examinations.
Section 4.1 Transfers
A transfer shall be defined as the appointment of an employee to a vacant position
having an assignment to the same pay grade as the position previously occupied by the
employee immediately prior to the transfer. The status of the employee so transferred shall
not be affected by the transfer; provided, however, that a transfer shall not be made from a
position subject to Jurisdiction B to one that is exempt therefrom. The applicability of
requiring a qualifYing exanñnation of the employee as a prerequisite to the transfer shall be as
determined by the Personnel Officer in reviewing whether desirable minimum standards of the
position have been met
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Section 4.2 Voluntarv Reductions
A voluntary reduction shall be defined as the approved request of an employee for an
appointment to a vacant position having an assignment to a lower pay grade ITom the position
previously occupied by the employee immediately prior to the new appointment. The status
of the affected employee shall not be changed as a result of the new appointment; provided,
however, that a voluntary reduction may not be made from a position subject to Jurisdiction B
to one that is exempt thereITom. The applicability of requiring a qualifYing examination of the
employee as a prerequisite to approval of a request for a voluntary reduction shall be as
determined by the Personnel Officer in reviewing whether desirable minimum standards of the
position have been met.
Section 4.3 Demotions
A demotion shall be defined as the involuntary reduction in rank or grade and shall be
made only for cause. No demotion shall be made without the Appointing Authority first
having reviewed a statement for cause as submitted by the Department Head having
supervisory control of the employee. Said statement for cause shall be given in writing to the
affected employee. The status of a demoted employee shall be determined in the same manner
as provided by the rule on voluntary reductions, above. .
CITYWIDE POLICIES
Section 5.1 Discrimination 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 in 1972, 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, religion, national origin, sex,
sexual orientation, handicap, or age.
The City Council of the City of Cupertino hereby resolves as follows:
That the City of Cupertino is committed to take 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's. That the City of Cupertino establishes that it will seek to aclúeve the
percentage hiring and/or promotion goals within a five year time period ending June 30, 1979,
and as may be consistent with changing labor market patterns.
That once the percentage goals are reached, they will be maintained in conformance
with availability in the labor market,
That percentage goals shown established a minimum representation and in no way
preclude the City from exceeding the projected goals,
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That 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 5.2 Alcohol and Drug Abuse Policy
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 required the City to:
1. Establish a drug free awareness program for employees.
2. Provide a notice to all employees specifying that drugs are illegal in the work place
and that action will be taken for violations
3. 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 work place
4. 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.
5. Sanction employees for violation and/or require participation in a treatment
program
6. Make a good faith effort to maintain a drug tree work place by following the above
requirements,
In addition to the fact that such requirements are established by law, a drug tree policy
is appropriate in that it helps ensure that employees are able to perform 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 Personnel Department for referral to community resources.
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.
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II POLICY:
It is the City 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 other 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 this or her supervisor before beginning work when taking drugs which
foreseeable interfere 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 £Tom 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 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 £Tom engaging in further City work and shall be detained for a reasonable time until
he or she can be safely transported £Tom the work site.
Higher standards may be promulgated based upon specific jog requirements ad determined by
City management.
III APPLICATIONS:
This policy applies to all City employees and to all applicants for positions with the
City. 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.
IV EMPLOYEE RESPONSmILITIES:
An employee must:
a. Not report to work while his or 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.
*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
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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.
£ NotifY the City of Cupertino within five working days after being convicted of any
drug related offense occurring in the course of City business.
g. NotifY the appropriate first-line supervisor upon observation of another City
employee whose behavior and/or physical characteristics are reasonably suspicious
and harmful to himself7herself and/or others,
V MANAGEMENT RESPONSIDILITIES AND GUIDELINES:
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 on the job. (Note: First-line supervisors
should consult with their supervisors, department directors and general services
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
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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: 1) 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, but is used for example only.
VI 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 or 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.
During Fit-For-Duty Examinations:
1. A positive result from a drug and/or alcohol analysis may result in disciplinary
action, up to and including discharge.
2. If the drug screen is positive, the employee must 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.
3. If an alcohol or drug test is positive, the supervisor or department director and the
general services 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 and 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
VII 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 general services manager. Reports of test results
may be disclosed to City of Cupertino management strictly on a need-to-know basis, and to
the tested employee upon request. Disclosures without employee (patient) consent may also
occur when
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1. The information is compelled by law or by judicial or administrative process.
2. The information is to be used in administering and employee benefit plan.
3. The information is needed by medical personnel for the diagnosis or treatment of
the patient who is unable to authorize disclosure.
VIII APPEAL PROCESS:
Fit-For-Duty Examinations:
Employees whose tests results are positive, and who are consequently facing
disciplinary action may:
1. Submit a written explanation, accompanied by any documentation's justifying the
substance. Prescriptions currently in use must be submitted within 24 hours, but the
written explanation accompanied by the prescription and a written recommendations
submitted by a doctor or rehabilitation counselor may be submitted within 48 hours of
the test results, The doctor conducting the fit-for-duty examination will review the
explanation and document and make a recommendation to the general services
manager who will forward this recommendation to the City Manager whose decision
will be final.
2. Request a meeting with applicable union representative, department director and the
general services manager to discuss the possibilities of rehabilitation for the purpose of
retaining employment with the City of Cupertino. Each case will be handled on an
individual basis. However, the principle of offering rehabilitation as a first resort and
disciplinary action as a last resort will govern.
3. Employees may request are-test, rrom the sample, by the facility with which the city
of Cupertino has contracted, at his or her own expense, If the re-test results
contravene the first test results, the City will reimburse the employee the cost of the
re-test.
4. The City of Cupertino maintains the right to request that a third test be conducted
using the same sample in instances where the results of the second test contravene the
results of the first. Results of the third test will combine with those of the first two to
form the deciding factor.
IX SUMMARY
The City will conduct drug and alcohol awareness programs, presented by the
Personnel Office. These programs will include prevention and detection methods, with
emphasis on maintaining a drug rree 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.
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Section 5.3 Sexual Harassment Policy
1. Policy Statement:
The City of Cupertino opposes all form 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 tree from discrimination. Sexual harassment, or harassment for any reason by
another employee or supervisor, will not be tolerated and is subject to disciplinary action up to
and including discharge. All levels of city government share in the responsibility of ensuring a
working environment tree of sexual harassment.
II. 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, it 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.
III. Examples:
1. Written: suggestive or obscene letters; notes; invitations.
2. Verbal: derogatory comments; slurs; jokes
3. Physical: assault; touching; impeding or blocking movements; or any physical
interference with normal work.
4. Visual: leering; sexually-oriented gestures; or display of sexually suggestive or
derogatory objects, pictures, cartoons, or posters.
5. Others: threat or insinuation that lack of sexual favors will result in reprisal;
withholding support.
IV. Complaint Procedure:
Employees who are the victim of, or witness to, any form of discrimination or sexual
harassment violation may submit a complaint. 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.
1. The basis is the complaint's perception 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
2. Complaints may be submitted in writing or given verbally.
3. Complaints may include a suggested method of resolution and corrective action.
4. The employee has the choice of submitting the complaint to hislher supervisor,
department head or the general services manager
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5. Upon receipt of the complaint, the general services manager will 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.
6. Upon completion of the investigation, the general services manager, in
consultation with the department head, will determine what, if any, disciplinary
action will be taken, Both parties will be notified of the action to be taken.
7. If it is determined the sexual harassment occurred, appropriate disciplinary action
up to and including dismissal will be taken. The severity of the discipline will be
determined by the severity and/or frequency of the offense.
8. Disciplinary action taken under tills procedure may be appealed with or without
representation subject to appeal or grievance procedures indicated in applicable
agreements or merit rules.
V Responsibilities:
1. The City Manager is responsible for enforcement of the city policy against
harassment.
2. The general services manager is responsible for ensuring that all complaints of
harassment are investigated thoroughly and promptly, including presentation of
recommendations for any necessary action to the city manager.
3. 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.
4. 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.
5. Every City employee is responsible for reporting any act of harassment to the
immediate supervisor or department head or general services manager.
VI Penalties
1. Violation of this policy shall generally constitute just and reasonable cause for
discipline, up to and including termination.
2. In addition, the courts have found individuals personally liable when they engage in
or take no action to prevent sexual harassment.
Section 5.4 Disability Discrimination Policv And Complaint Procedure
PURPOSE
The purpose of this policy is:
· to prohibit and eliminate any discrimination in emplòyment against a qualified
individual with a disability;
· to define what constitutes "disability;"
· to define who is a "qualified individual with a disability;"
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· to define discrimination on the basis of disability; and
· to establish a procedure for investigating and resolving internal disability
discrimination complaints.
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
A. Disability
"Disability" is: (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.
1. Physical or Mental Impairments
Physical or mental impairments include, but are not limited to: vision, speech and
hearing impairments; emotional disturbance and mental illness; seizure disorders;
mental retardation; orthopedic and neuromotor disabilities; learning disabilities;
diabetes; heart disease; nervous conditions; cancer, asthma; Hepatitis B; mv
infection; and drug addition 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-handedness; poverty; lack of education; a prison record;
and poor judgment or quick temper if not symptoms of a mental or physiological
disorder.
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2. Substantial Limitation ofMaior 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:
a) the nature and severity of the impairment;
b) the duration or expected duration of the impairment; and
c) the permanent or long-term impact (or expected impact) of or resulting
fÌ'om 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:
a) the geographical area to which the individual has reasonable access;
b) the job fÌ'om 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 fÌ'om which the
individual is also disqualified because of the impairment; and! or
c) the number and types of other jobs within that geographical area not
utilizing similar training, knowledge, skills or abilities (to the job fÌ'om
which disqualified) fÌ'om which the individual is also disqualified because of
the impairment (broad range of jobs in various classes).
3. Having a Record ofImpairment
An individual is disabled if he or she have 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.
4. Refi!arded 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.
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B. Oualified Individual with a Disabilitv
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 acconunodation" can perform the
essential functions of the position.
1. Satisfied Job-Related Reauirements
The first step is to determine whether the disabled individual satisfied the job-
related requirements of the position. Satistying 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
The second step is to determine whether the individual can perform the essential
functions of the position despite their disability, 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 among 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 MOD; 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, the
third step is to determine whether reasonable acconunodation would enable the
individual to perform the essential functions of the position.
Acconunodation 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:
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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:
· all employment decisions and to the job application process;
· 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:
· it eliminates essential functions of a position ITom 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 create 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 workforce.
5. Determining the Aporooriate Accommodation
If a qualified individual with a disability requests the provision of a reasonable
accommodation, the agency shall engage in an informal, interactive process with
the disabled person which identifies the precise limitations resulting ITom the
disability and the potential accommodations that could overcome those limitations.
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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.
C. Discrimination on the Basis of Disability
Discrimination on the basis of disability means:
· 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;
· to participate in a contract which could subject an applicant or employee
with a disability to discrimination;
· to use any standards, criteria or method of administration which could have
the effect of discriminating on the basis of disability;
. to deny equal jobs or benefits because of a disability;
· 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;
· to use a selection criteria which exclude a disabled person unless the
criteria is job-related and consistent with business necessity; and
· 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.
COMPLAINT
I. 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
General Services 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 circumstances
prevent the filing of the complaint within this time period, complaints received after this
time period may be accepted.
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2. The complaint shall include:
· a description of the offending behavior(s) or violations;
· date(s), time(s) and location(s) ofincident(s);
· name(s) of alleged offender(s);
· name(s) of witnesses, ifany; and
· remedy desired.
3. Complainant's immediate supervisor or department head shall refer all complaints received
to the General Services Manager.
4. Upon receipt of a complaint, the General Services 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.
5. Upon completion of the investigation, the General Services 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.
6. The General Services Mánager shall then prepare a written report setting forth the results
of the investigation and the determination as to whether discrimination occurred. The
results of the investigation shall be conveyed to appropriate persons including to the
complainant, the person(s) allegedly engaged in discrimination, the supervisor, and the
department head.
7. If it is determined that discrimination occurred, swift and appropriate disciplinary action
will be commensurate with the severity and/or trequency of the offense.
8. Reasonable steps shall be taken to protect the victim and other potential victims from
further discrimination.
9. Reasonable steps shall be taken to protect the victim trom retaliation as a result of
communicating the complaint.
Section 5.5 Familv Leave Policv
Effective August 5, 1993 the Family Leave Act became effective and pertains to all
local governments and others 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:
I) 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.
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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 beèn provided if the
employee had been continuously employed during the entire leave period. Other benefits can
be maintained at the employee's cost. ¡fan 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: I) The employee is too ill to return; or, 2) The employer is
"key" and 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 a "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
employees 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.
DISCIPLINARY ACTIONS
Section 6.0 Warning Notices
At the discretion of the Department Head having supervisory control warning notices
in writing may be prepared and served on an employee for minor infractions of regulations or
for unacceptable conduct. A copy of each such warning notice so served will be forwarded to
the Personnel Officer who will retain it with other personnel records of the offending
employee. Such records may be used to substantiate subsequent, more serious disciplinary
actions. The misconduct of an offending employee shall be reviewed for indication of
improvement or correction. Such information will be retained with other personnel records
for a period of three years only
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Section 6.1 SusDensions
A Department Head having supervisory control may suspend an employee without pay
for serious or repeated infTactions of regulations. Such suspensions may not exceed thirty
(30) days in any twelve (12) month period without the right of the employee to file an appeal
with the Appointing Authority for a hearing on the matter. (See Section 6,3 Who May
ApDeal)
Nothing contained herein shall preclude the right of the Department Head to require an
employee to cease work immediately and leave the work premises without pay when such
action by the Department Head is in the interest of safeguarding the health, safety and welfare
of the City, its employees, citizens and their properties.
Section 6.2 Dismissal
An employee may be dismissed by a supervising Department Head for substantiated
cause when it is deemed to be in the best interest of the City. Upon verbal or written notice of
dismissal an employee shall be required to leave the work premises with loss of all rights and
privileges of employment. An employee holding certified status may appeal the dismissal to
the Appointing Authority with three (3) working days ITom date of notice of dismissal. If no
appeal is initiated within the specified period, the dismissed employee shall be discharged ITom
employment,
Section 6.3 Discharges
An employee shall be discharged ITom employment with the City after dismissal
without appeal or after denial of an appeal by the Appointing Authority. An employee so
discharged shall lose all pay, rights and privileges of employment with the City on the effective
date of notice of dismissal. A written statement of the causes of discharge and dismissal shall
be prepared for the employee's personnel records and a copy given to the affected employee.
Section 6.4 Due Process
In each and every instance involving the issuance of warning notices, suspensions or
the dismissal or discharge of an employee, such will not be effectuated without the employee
first having been given in writing the basis for such action being taken and the opportunity to
question the reasons therefore of his supervisor or Department Head, Said opportunity shall
be as soon as it is practical after having been served the written notice and shall not constitute
any limitation otherwise available through the grievance or appeal or procedure.
APPEALS AND HEARINGS
Section 7.0 Form of Appeal
All appeals to the Appointing Authority shall be in writing and shall be signed by the
employee.
Section 7.1 Filing of Appeal
The filing of an appeal to the Appointing Authority shall be accomplished by the
submission of the signed written document to the Personnel Officer who shall be responsible
for the issuance of proper notifications.
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Section 7.2 Representation
An employee submitting an appeal to the Appointing Authority may be represented by
a person of his choosing or may elect to represent himself; 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. Substitution of
representation may only be as permitted by the Appointing Authority.
Section 7.3 Who May Appeal
Any employee may file an appeal with the Appointing Authority as the final step of the
grievance procedure, for suspensions exceeding thirty (30) days in any twelve (12) month
period, or after notice of dismissal. Appeals ITom dismissal may be filed only by employees
currently holding certified status at the time of dismissal.
Section 7.4 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.
GRIEVANCE PROCEDURE
Section 8.0 Grievance Procedure
Definition and Procedure A grievance is a dispute or difference of opinion raised by
an employee against the City involving the meaning, interpretation or application of the
express provisions of an applicable Memorandum of Understanding or the Rules on
Conditions of Employment or existing work rules. A grievance shall be processed in the
following manner:
Step 1: Any employee who has a grievance shall submit it designated as a grievance to
the employee's immediate supervisor, who is designated for this purpose by the City. The
supervisor shall give the employee an oral answer within five (5) calendar days after such
presentation.
Step 2: If the grievance is not settled in step 1 and the employee wishes to advance
the grievance to Step 2 of the grievance procedure, it shall be referred in writing to the
employee's next highest supervisor within five (5) calendar days after the supervisor's oral
answer, or answer due in Step 1, and shall be signed by the aggrieved employee and the
employee's designated representative/Union Business Agent. The written grievance shall
contain a complete statement of the facts, the provision of the Memorandum of Understanding
or work rules which the City is alleged to have violated and the relief requested. The
supervisor or other person designated for this purpose shall discuss the grievance within five
(5) calendar days with the employee and the employee's designated representative at a time
mutually agreeable to the parties. If no settlement is reached, the supervisor or other person
designated for this purpose shall provide the employee a written answer within five (5)
calendar days following their meeting.
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Step 3: If the grievance is not settled in Step 2 and t he employee wishes to appeal the
grievance to Step 3 of the grievance procedure, it shall be referred in writing to the
employee's Department Head within five (5) calendar days after the supervisor's answer in
Step 2 and shall be signed by both the aggrieved employee and the employee's designated
representative. The Department Head shall discuss the grievance within five (5) calendar days
with the employee and the employee's designated representative at a time mutually agreeable
to the parties. If no settlement is reached, the Department Head shall give the City's written
answer to the employee within five (5) calendar days following their meeting. Step 4: If
the grievance is not settled in Step 3 and the employee wishes to appeal the grievance to Step
5 of the grievance procedure, the employee's designated representative may refer the
grievance to advisory mediation as described below within 14 calendar days after the decision
is provided at the third step.
(1) The parties shall attempt to agree upon an advisory arbitrator within seven (7)
calendar days after receipt of the notice of referral. In the event that parties are unable to
agree upon an advisory arbitrator within said seven (7) day period, the parties shall
immediately 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 employee's designated representative and the
City shall have the right to strike two (2) names fÌ'om the panel. The party requesting
advisory arbitration shall strike the first two names: the other party shall then strike two
names. The person remaining shall be the advisory arbitrator.
(2) 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 employee's designated
representative and the City representative.
(3) The City or the employee's designated representative have the right to request the
arbitrator to require the presence of witnesses or documents. The City and the employee's
designated representative retain the right to employ legal counsel.
(4) 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.
(5) More than one grievance may be submitted to the same advisory arbitrator if both
parties mutually agree in writing.
(6) The fees and expenses of the advisory arbitrator and the cost of a written
transcript shall be divided equally between the City and the employee's designatednrepresentative; provided, however, that each party shall be responsible for compensating its
own representatives and witnesses.
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Limitations on Authority of Advisorv Arbitrator The advisory arbitrator shall have no
right to amend modify, nullify, ignore, add to, or subtract from the provisions of the
Memorandum of Understanding. 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 this Agreement. 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.
ATTENDANCE AND LEAVES OF ABSENCE
Section 9.0 Hours of Work
The normal work week shall be Monday through Friday. The normal work day shall be
fÌ'om 8:00 a.m. to 5:00 p.m. with one (1) hour off for lunch.
A variance to the normal work week or work day may be established by the
Department Head with the written approval of the Appointing Authority when such is deemed
by the Appointing Authority 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 Personnel Officer, The
normal work week shall be 40 hours in seven days.
Section 9.1 Holidays
The following named holidays shall be considered as non-work days:
a) New Year's Day
b) Martin Luther King Day
c) Washington's Birthday
d) Memorial Day
e) Independence Day
t) Labor Day
g) Veteran's Day
h) Thanksgiving Day
i) Friday following Thanksgiving Day
j) Christmas Eve (1/2 shift on regular work days only)
k) Christmas Day
I) New Year's Eve (1/2 shift on regular work days only)
Section 9.1.2
In addition to the foregoing paid holidays, eligible employees shall be allowed to
schedule 20 hours as additional holiday leave not to betaken in increments of less than 4
hours. This floating holiday leave shall be taken at dates of the employee's selection, provided
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that 1) prior supervisory approval be obtained, and 2) before the end of the 2nd pay period in
December of each calendar year. For new employees, floating holiday leave will be pro-rated
the calendar year in which they were hired in the following manner:
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.
Section 9.1.3
When a holiday or a non-work day falls on a Saturday the preceding Friday shall be
observed as the non-work day and when a holiday falls on a Sunday the following Monday
shall be observed as the non-work day.
Section 9.1.4
Nothing contained herein shall preclude the right of the Department Head with the
approval of the Appointing Authority 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 rescheduled work assignments.
Section 9.1.5
Employees whose normal work day is at variance with the normal work hours
specified in Section 9.0 of these rules may be compensated for the differential shift hours their
duties require. The Appointing Authority may establish suitable administrative policies and
guidelines for this compensation.
Section 9,1.6 Holidav Pay
In order for an 'employee to receive his 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-work day, Employees on vacation, injury
leave, approved short term leave of absence, with or without pay, or who submit satisfactory
evidence of personal illness shall be considered as working their regular schedule for pay
purposes.
Section 9.2 Vacations
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.
After six months of continuous employment, accrued vacation may be taken with the
prior approval of the Department Head. Vacation leave must be taken in no less than 2 hour
increments.
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During the first three years of employment, an employee shall earn vacation credit on
the basis of 5/6 work day, or the hourly equivalent, for each complete month of continuing
service.
During the fourth year of employment, an employee shall earn vacation credit on the
basis of 1/1/4 work days, or the hourly equivalent, for each completed month of continuing
servIce.
During the tenth year of employment, an employee shall earn vacation credit on the
basis of 1 5/12 work days, or the hourly equivalent, for each completed month of continuing
sefV1ce.
During the fifteenth year of employment and thereafter an employee shall earn
vacation credits at the rate 1 2/3 work days, or the hourly equivalent, for each month of
completed continuous service,
During the twentieth year of employment and thereafter, an employee shall earn
vacation credits at the rate of 1 5/6 work day or the hourly equivalent for each month of
completed continuous service. An employee may carry over to the next year any portion of
vacation credit but shall be limited to not more than that which was earned during the
preVIous year.
An employee may accrue no more vacation credit than twice the annual rate being
earned.
On termination of employment or on receiving g 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 final employment date beyond the annual rate being earned.
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.
Employees may convert, on a once per calendar year basis, unused vacation time for
payment subject to the following conditions.
1. The employee must have an earned vacation of a minimum of 15 days.
2. Any payments made for unused vacation will be subject to all appropriate
taxes and deductions as determined by the Finance Department.
3. Minimum exchange will be 1 day, maximum exchange will be 5 days. All
changes are irrevocable.
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Section 9.3 Sick Leave
All full time employees, other than those holding temporary status, 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 of 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 calendar month 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.
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 be 96 hours of
sic k 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 to a maximum of 48 hours and a minimum
of 4 hours,
As a condition of converting sick leave to vacation, all employees will be required to
use at least one-half of vacation accrued during the previous twelve months.
Such conversion, either to exchange sick leave for vacation or vice versa shall be
subject to the following conditions:
1, All requests to exchange sick leave for vacation time shall be submitted in
writing to the Department Head at least 60 calendar days in advance of
intended vacation utilization
2. The granting of such exchange and subsequent use will be at the discretion
of the Department Head.
3. If twelve (12) months have elapsed since approval of the exchange of sick
leave for vacation and the employee has not been pennitted the use of 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 only for previously converted sick time to vacation and will not
be pennitted for regularly accrued vacation time.
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4. If an employee, after converting sick leave to vacation time, exhausts all of
hislher 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 as to the validity of the illness/injury and whether or
not a written physician's statement attesting to the illness/injury is required
will be at the sole option of the Department Head
5. If the employee's vacation accrual exceeds the maximum allowable accrual,
he/she will have the option to re-convert vacation time back to sick leave
on a reverse ratio basis. Such re-conversion shall b e limited to previously
converted sick leave/vacation and may not exceed the amount necessary to
reduce the accrued vacation to the maximum allowable. Regularly accrued
vacation time will not be eligible for this re-conversion to sick leave and
any regularly accrued vacation time accrued in excess of the maximum
allowable will be disallowed and not subject to utilization by the employee.
NOTE: As used in this document, "reverse ratio" is intended to mean that the ratio of sick
leave to vacation will revert to the original ratio at the time the initial exchange
was implemented.
Section 9.3.1 Personal Leave
The City shall allow accumulated sick leave to be used for conducting personal
business which cannot be conducted outside regular working hours,
The employee must request leave, if non-emergency, at least forty-eight (48) hours
(two working days) prior to the time of utilization giving the reason for the request on the
form presently provided. In cases of emergency, the forty-eight (48) hour notification
procedure may be waived by the immediate supervisor, provided the form is completed and
the reason for the request is stated upon return.
Section 9.3.2 Family Leave
The City of Cupertino will be in compliance with State and Federal Leave Laws.
Section 9.3.3 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.
Section 9.3.4 Absence Notification
An employee is expected not to absent himself ITom work for any reason other than
personal illness without making prior arrangements with his supervisor. Unless prior
arrangements are made, an employee, who for any reason, fails to report for work must make
a sincere effort to immediately notifY his supervisor his 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 with his
supervisor, In proper cases, exceptions will be made.
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Any unauthorized absence of an employee ITom duty shall be deemed to ban absence
without pay and will be grounds for disciplinary action by the Department Head. In the
absence of such disciplinary action, any employee who absents himself/herself 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 a following grant of leave with or without pay
when extenuating circumstances are found to have existed.
Section 9.3.5 Unused sick Leave
The City shall pay and employee for unused balance of sick leave upon retirement, or
termination for other than just cause, according to the following schedule:
1. If upon retirement, which shall require the formal filing of the appropriate forms
with the Public Employees Retirement System, an employee has at lease 320 hours
of accrued sick leave a cash payment shall be made equivalent to seventy-five
percent (75%) of the dollar value of the unused sick leave balance. The dollar
value for such payment shall be calculated at a wage rate which is the average of
the preceding five (5) years for the employee.
2, If upon termination for other than discharge with just cause, an employee has at
least 320 hours of accrued sick leave a cash payment shall be made equivalent to
sixty percent (60%) of the dollar value of the unused sick leave balance. The
dollar value for such payment shall be calculated at a wage rate which is the
average of the preceding five (5) years for the employee.
Section 9.4 Leaves of Absence
Leaves of absence without pay not to exceed three (3) consecutive work days may be
granted to an employee by his Department Head. Such leaves of absence in excess of three
(3) consecutive work days shall require the prior approval of the appointing Authority. All
such leaves of absence in excess often (10) work days shall have the prior written approval of
the Appointing Authority and shall be reported to the Personnel Officer on the appropriate
form provided
Section 9.5 Military Leave
Military leave shall be granted in accordance with the provisions of State 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.
Section 9.6 Jurv Dutv
Employees called for jury duty shall be paid the difference for such non -work time
between the base salary they would have earned had they not been required to serve or be in
attendance and the base salary, exclusive of any mileage allowance, received for such service.
Section 9.7 TemDorarv Disability Benefits
Any employee sustaining an injury arising out of, or in the course of, the performance
of his job and who cannot work at the duties and responsibilities normally assigned to that job
is entitled to receive temporary disability payments as prescribed by State law
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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 sick leave payments to the extent that such sick
leave has been accrued to the employee's account,
Section 9.8 Pregnancv 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
there!Tom. 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 (6)
days, whichever comes first.
Section 9.9 AdoDtion 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 level
Section 9.9.1 Catastrophic Leave
1. The City will form a committee to establish a definition of catastrophic or life-
threatening g illness. This committee will evaluate each individual case 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 !Tom their physician to detennine the applicant
does suffer a catastrophic or life-threatening illness.
2. 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 to the Personnel
Office when apply for funds.
3. A recipient must have used all of their available leave hours before helshe is
eligible.
4. The minimum time an employee could receive funds would be one week. The
maximum amount is two months (LTD becomes available at this time).
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5. Vacation leave will be the only leave that may be donated. An employee may not
donate vacation leave hours which would reduce his/her total accrued leave
balances to less that 120 hours. All leave donations are irrevocable,
6. A vacation transfer drive will be held once a year for employees to donate vacation
leave. Transfers may be in increments of 1 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,
7. Donated vacation 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 to the time-bank. Checks will be issued to the recipient with the
regular payroll. which will keep them in an active employment mode with the City.
This procedure prevents overpayments or corrections since it comes after the
actual leave has been taken. (Conversion allows for adjustments for different rates
of pay.) No employee shall receive payment for more than 100% of their regular
pay.
Section 9.9.2 Attendance
Employees shall be expected to perform their given work assignments diligently until
the end of that work period. An employee who is not able to do so shall so advise his
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.
Section 9,9,3
Adequate and proper attendance records shall be maintained for each employee which records
shall form the basis for payroll and accounting requirements.
Section 10.0 Overtime
It shall be required an employee to perform outside of the normal work week,
compensation shall be made in one of the following ways.
Section 10.1 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 1/2) times the normal rate of
pay. Work performed on regularly scheduled days off, City Holidays or during an employee's
scheduled vacation shall be considered to be overtime and paid accordingly. At the employees
discretion, compensatory time off may be granted for overtime worked at the rate of time and
one-half for each hour worked in lieu of compensation in cash.
Compensatory time may be accrued up to 60 hours, Any compensatory time
remaining on the books after this time will be paid off in cash at the rate of time and one-half
Any overtime worked after the first pay period in December and before the first period of the
next calendar year must be paid off in cash at the rate of time and one-half.
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Section 10.2 Management and Confidential Overtime
Management and confidential employees are ineligible for overtime payments.
However, no deduction from leave balances are made when such employee is absent less than
a regular work day.
Section 10.3 Stand-bv-Pav
Employees who are required to make themselves available for being called back to
work outside the normal work period shall be c compensated for such stand-by assignment at
the rate of$125.00 per week for each week so assigned.
OTHER CONDITIONS OF EMPLOYMENT
Section 11.0 Continuous Service
Continuous service shall be defined as the uninterrupted service of an employee from
the date of his latest appointment to the then present time. Continuous service shall be broken
through death, discharge, resignation, retirement or layoffs exceeding twelve (12) months
duration without the employee having been reinstated. Continuous service shall be interrupted
through a leave of absence without pay exceeding ten (10) work days, layoffs and suspensions
exceeding ten (10) work days.
Section 11.1 Reimbursement for Travel and Other Expenses
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,
Assistant City Engineer, Traffic Engineer, Superintendent of Public Works, Recreation
Supervisors, Building Official and the Public Information Officer who pay rate 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.
Section 11.1.2 Reimbursements
Employees who are required to advance personal funds for 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 11.2 Resignations
Resignations are deemed accepted and irrevocable once presented in writing to an
employee's supervisor or Department Head.
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Section 11.3 Layoffs
Layoffs of employees may be made by the Appointing Authority for lack of funds, lack
of work or for 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,
Unless otherwise prevented fÌ'om doing so as a result of conditions or situations
beyond the City's control. The City will provide a minimum of thirty (30) days notice to any
employee subject to being laid off pursuant to the Rule on layoffs.
Section 11.3.1 Reinstatements
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
reinstatement. Failure to respond within ten days to a written notice of such opportunity shall
cause that name to be removed fÌ'om the recall list.
With the approval of the Appointing Authority, a permanent or probationary employee
who has resigned with a good work record or an employee recalled fÌ'om a list resulting fÌ'om
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 11.4 Seniority
Seniority shall be defined as the length of continuous service in a given classification.
Seniority shall not be affected by a change in the allocation of a position, by a change in the
class specifications or by a change in the evaluation of the class of positions.
Section 11.5 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 e to the employee qualifying for
promotional opportunities. The Appoint Authority may prescribe suitable regulations and
guidelines under which such programs may be administered.
Section 11.6 SUlz2estion 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 well
as the method of giving appropriate recognition thereto shall be as prescribed by the
Appointing Authority.
Section 11.7 Hospitalization. Medical. Dental and Life Insurance Pro2l'ams.
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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EMPLOYEE-EMPLOYER RELATIONS
:~
Section 12. Memoranda 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 two parties and as approved by the City Council in
the 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,
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