Non-Punitive Termination

Non-punitive termination is defined as termination, demotion, or transfer of an employee who fails to meet a requirement for continuing employment that is prescribed by the State Personnel Board (SPB) in the specification for the classification to which the employee is appointed.

Requirements for continuing employment, as specified in class specifications, are limited to the acquisition or retention of specified:

  • licenses, certificates, registrations, or other professional qualifications;
  • education; or
  • eligibility for continuing employment, or advancement to the fully qualified level within a particular class series.

These requirements must not include medical, physical ability, work, or academy performance standards.

The authority to process non-punitive terminations are under the following Government Code (GC) sections:

  • GC section 19585 provides that permanent and probationary employees may be terminated, demoted, or transferred without fault (non-punitive termination) in lieu of adverse action and rejection during probation when the only cause for action against him or her is failure to meet a requirement for continuing employment. Specific policy, procedures, and guidelines are outlined below.
  • GC section 19140 provides that when an employee, who received a “non-punitive termination,” again meets the requirement for continuing employment in a position, the employee shall be eligible for permissive reinstatement.
  • GC section 18522 provides a definition for “former position”, which is used in variety of circumstances to determine an employees right of return.
  • GC section 19991.1 provides that an appointing power may grant a leave of absence without pay for up to one year. Employees granted such leaves are assured of the right to return to his/her former position upon expiration of the leave.

State Personnel Board Rules include:

  • Rules 63-74 cover appeals.
  • Rule 311 cites the Executive Officer’s authority to approve reinstatements.
  • Rule 446 covers the authorized types of temporary separations and permanent separations.

Policy

In accordance with SPB, Article 4 Section 52.3, permanent and probationary employees may be terminated, demoted, or transferred without fault (non-punitive termination) in lieu of adverse action and rejection during probation when the only cause for action against him/her is failure to meet a requirement for continuing employment.

Procedure

  1. The Department of General Services (DGS) must remove a permanent or probationary employee from a position if s/he fails to meet a requirement for continuing employment as prescribed in the class specification for the position to which the employee is appointed. The appointing authority may take a non-punitive action such as termination, demotion, or transfer under the provisions of GC section 19585.
  2. Termination or demotion under the provisions of GC section 19585 may be without fault and in lieu of adverse action or rejection from probation. (Note: Because employees with prior civil service status may lose their mandatory right of return to their former position if they are terminated from State service under a non-punitive action rather than a rejection during probation, the Classification and Pay (C&P) Analyst should explore the mandatory return rights of any employees facing this situation and inform the employee what s/he will lose if the non-punitive action is processed.
  3. DGS may grant an employee a leave of absence in lieu of termination, demotion, or transfer for failure to meet a requirement for continuing employment. Such employees must have permanent status or probationary status with at least six months of service completed. The purpose of the leave of absence, in this instance, must be to regain the requirement for continuing employment.
  4. An employee who has proof of filing a proper and timely application for renewal of a required license, registration, or certificate shall be considered as having maintained the license, registration, or certificate unless it is subsequently denied, revoked, or suspended.
  5. When requirements for continuing employment have been regained, employees who have been terminated, demoted, or transferred may be permissively reinstated.
  6. When requirements for continuing employment have been regained, employees who have been terminated, demoted, or transferred may be permissively reinstated.
  7. The C&P Analyst must provide written notice to the employee at least five days prior to termination, demotion, or transfer for failure to meet a requirement for continuing employment. The notice must include a statement that such actions are non-disciplinary. The employee is entitled to an informal hearing (similar to Skelly hearing) prior to action taking effect. The notice should be reviewed and approved by the Office of Legal Services.
  8. Employees have the right to appeal to the SPB any action relative to termination, demotion, or transfer for failure to meet a requirement for continuing employment within 30 days after receipt of written notice of such action, per Rule 64.
  9. Employees who have been terminated from his/her position by non-punitive termination shall have permissive reinstatement eligibility to that position when s/he again meets the requirements for continuing employment in that position.

Resources

Responsible Control Agency

  • State Personnel Board

Laws and Regulations

  • CalHR rule 599.826
  • Government Code section 18522, 19140, 19585, 19839, 19996
  • SPB rule 52.3, 64

Other Resource Materials

  • Personnel Management Policy and Procedures Manual section 430
  • State Administrative Manual section 8593.3