State employees lose right to appeal layoffs

South Dakota state employees who are laid off in the future won’t have the right to appeal, the legislators on the Rules and Review Committee decided Tuesday with a 3-2 vote.

Opponents say it is more bad news for state employees, who haven’t received a raise in three years.

“There seems to be an outright attack on public employees everywhere. I would assume that it not carry on in South Dakota,” said Mark Anderson, president of the South Dakota Federation of Labor.

The changes, which take effect Aug. 1, include adding stepbrothers and stepsisters to the definition of immediate family for leave purposes and requiring no notice for emergency furloughs.

But it’s the removal of the appeals process for laid-off employees that raised the biggest red flag, according to the South Dakota State Employees Organization.

It affects employees who fall under civil service rules, which make up half of the state’s work force of 12,800 people.

Employees in the private sector don’t get to appeal layoffs, and at least state employees get a justification, said state Sen. Jean Hunhoff, R-Yankton, who voted in favor of the rule changes.

“I think that is more than what you see in the private sector,” she said.

Opponents argue the appeals process is needed to avoid a wholesale firing of employees when a new administration is elected. They also questioned why the rules, in place since the 1970s, were being changed if there haven’t been any problems.

“I see these rules as an attack on state employees that doesn’t need to be made,” said Rep. Peggy Gibson, D-Huron.

The modifications came from the new governor’s directive to review all rules and policies, Director of Compensation Kevin Forsch said.

“We felt this rule was outdated and in conflict of interest and conflict of powers,” he said.

Officials want to avoid having a judge overrule the action of the Legislature or an agency, say Bureau of Personnel officials who drafted the rules.

For example, if the Legislature votes to eliminate financial support of a program or position and an employee is laid off and appeals, a judge or the Career Services Commission – a five-member board appointed by the governor – could overrule the layoff, Forsch said.

That example has not happened yet, but there have been two appeals of layoffs in the past 15 years or so, said Jeff Bloomberg, counsel for the Bureau of Personnel.

In both instances, the two employees thought other co-workers with the same job description should have been let go instead of themselves, he said.

For the first time since the discussion began a couple of months ago, state officials pointed out that there still is a rule that allows employees to appeal a layoff if the department misinterprets or misapplies the approved layoff plan. Before an employee can be laid off, the department must submit a plan that needs to be approved by the Bureau of Personnel Commissioner.

Corey Landeen, executive director of the South Dakota State Employees Organization, disagrees that the laid-off employees still will be able to appeal if the layoff plan is not followed.

“It would have to come to a court to decide if an employee can use that for an appeal,” he said.

Rep. Shawn Tornow, R-Sioux Falls, joined Gibson in voting against the rule changes, but for different reasons.

“I think the idea behind these rules is appropriate; however, I don’t think they are correctly written,” he said.

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