It has been sometime since my last newsletter, but I have been waiting for the second of two decisions from the Civil Service Commission that I thought were important to discuss together. They deal with issues of education. The first case addresses the right of an employer to require employees to meet certain educational requirements, and the second deals with the right to pay employees working within the same job more dollars because of certain educational attainment. These cases provide solid guidance to managers who want to upgrade the quality of their workforce.

The first case deals with employees at DOTD and is styled Appeal of Allwell, et al., Docket Numbers 10763 and 10788. The Department of Transportation and Development has the responsibility of inspecting the work being performed by its contractors in order to ensure compliance with federal and state law and regulation. They employ a significant number of people in various classifications in order to meet this responsibility. In order to ensure that its employees in those jobs had the skills necessary to properly inspect the work being performed by the contractors, DOTD established a mandatory training program. The training is at DOTD's expense and the employees are expected to be given time during working hours to take the courses and to study for the test. An employee who does not meet the training requirements for the job is deemed to be an uncertified employee incapable of performing certain aspects of his job.

The matter was brought to a head when DOTD sought to aggressively enforce the training requirements. It withheld merit increases from employees who did not meet the training requirements, and then disciplined those employees by a reduction in pay of seven percent (7%). Many of the employees who had always worked within these classifications. Because the training requirements had not been aggressively enforced in the past, these employee apparently felt that those requirements could not, or should not, be enforced against them. They appealed the reduction in pay.

The Commission found that all of the certifications and courses required were work related. They found that the appellants had satisfactorily performed the jobs that they had been assigned, but that they were limited in the work that could be assigned to them because of their limited certifications and course work. The Commission treated the requirement to obtain the training as a "direct order" case. That is, it recognized that employees must obey the orders of their superiors where they are related to a governmental interest, and where they are not illegal or immoral. The Commission concluded that because DOTD was limited in the tasks that it could assign these employees the order to obtain training in order to expand the work that could be assigned to employees was a direct order that had to be obeyed under pain of disciplinary action. The Commission went further, however, and in a general comment regarding training and education stated:

"In almost every field of work performed by the state, the skills that were needed to get the job done twenty-five (25) years ago are not the same as the skills needed today. As such, the state needs to be able to upgrade the skill level of its workforce. To accomplish this, an agency may establish a mandatory training program which it may enforce by withholding merit increases and promotions and, if it becomes necessary, by disciplinary action."

Before discussing the full import of this case. We should consider the position of the Commission as demonstrated by the next case. It is important that these two cases be read together.

The second case arises out of the Department of Social Services. It is the Appeal of Ramirez, et al., Docket Numbers 8588 and 8603. At the request of the Department of Social Services, the State Civil Service Commission approved flexible maximum hire/retention rates for the social services series of classes. Appointing authorities employing individuals within those classes could raise the pay of incumbents who possessed masters degrees in certain fields, and could hire new employees who possessed those masters degrees at a higher entry rate than employees who did not possess masters degrees. The result, of course, was that employees within the same job classification were treated differently for purposes of pay based upon educational attainment. The employees who did not possess these masters degrees, and who did not get the benefits of the higher pay, appealed to the Civil Service Commission.

A word here about discrimination. In almost every class that I teach a question about discrimination arises, and I have some concern that the concept is not really understood. Discrimination based upon age, sex, race, and other non-merit factors is bad. Discrimination based upon merit factors - business related factors - is good. It is a means of drawing meaningful distinctions between and among employees. Managers must discriminate frequently. So long as the reason for the act is rational and is in furtherance of a governmentally related interest, it is legal.

Back to the case. The minimum qualification requirements for the social services series of jobs allowed a masters degree, or a college degree and certain levels of experience. That is, all of the incumbents, those with masters degrees and those without masters degrees, ere deemed to meet the minimum qualifications requirements for the job. That is, all were minimally qualified. The testimony showed that as a general proposition employees were not assigned different duties based upon educational attainment, but all were assigned the same type of cases. There were certain cases, however, that were deemed by state law capable of being performed only by those with masters degrees, but this was the exception rather than the rule. The Department of Social Services had wanted to recruit and retain those who held masters degrees because the Department believed that these employees brought something more to the job in terms of skill and ability than those who did not possess the masters degree. The core issue was whether this belief was true as a matter of fact.

The Commission concluded that as a result of additional education the masters degree holder had a broader spectrum of knowledge from which to make decisions and more training in theory than could be gained from field experience. This allowed the masters degree holder to consider more factors in a case than could otherwise have been considered. The Commission noted that possession of a masters degree was a valid selection criteria, and the study showed that on average employees with masters degrees performed significantly better than employees without masters degrees.

The Commission concluded that a uniform classification and pay plan does not require that all individuals within the same classification received the exact same pay, but that they all be assigned the same pay range. The Commission further concluded that distinctions in the pay of employees within that same pay range may not be made based upon non-meritorious factors, but could be made based upon meritorious factors. The Commission concluded that it had been demonstrated to its satisfaction that those holding masters degrees brought to the job something more in ability and skills than those without masters degrees such that the payment of a higher rate of pay in order to attract and retain those employees was justified. The Commission denied the appeal.

It appears clear from the Allwelldecision that a manager can require its subordinate employees to acquire the skills necessary to fully perform the wide range of jobs that can be assigned within a civil service classification under pain of disciplinary action. The Ramirezdecision shows that a manager may pay a higher rate of pay to an employee who obtains education that allows performance of a job at a higher skill level. What these cases tell us is that where you believe, and can demonstrate, that the attainment of a higher level of training and/or education will produce a better quality of work or a more versatile employee, such training can be mandated on state time, or rewarded if obtained elsewhere. I encourage you to be aggressive in pursuing the upgrading of the quality and usefulness of your workforce.

Sincerely,

Robert R. Boland, Jr.
General Counsel