N.Y. Comp. Codes R. & Regs. tit. 4 § 4.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 4.5 - Probation

(a) It is the intent of the Civil Service Commission that permanent appointments, promotions or transfers shall require, as provided herein, satisfactory completion of a probationary term which shall include a minimum and a maximum period of probation. Such probationary term shall commence on the effective date designated by the appointing authority and approved by the Civil Service Department for the appointment, promotion or transfer on a permanent basis. Such appointments, promotions or transfers shall not become permanent prior to satisfactory completion of at least the minimum period and may require satisfactory completion of the maximum period of probation. If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of probation.

(b) Probationary term.

(1) Except as herein otherwise provided, every permanent appointment from an open competitive list and every original permanent appointment to the noncompetitive, exempt or labor class shall be subject to a probationary term of not less than 26 nor more than 52 weeks.

(i) This probationary term shall also apply to each appointment to a position in which the appointee is not under the regular supervision of the appointing authority until the completion of prescribed schooling or off-the-job training; provided, however, that such probationary term, in this case, shall commence after the successful completion of such training.

(ii) The probationary term for the positions of "Teacher (all levels)" and "Vocational Instructor 1, 2 and 4" shall be not less than one year nor more than three years. The probationary period for "Vocational Instructor 3" shall coincide with the term of validity remaining on the provisional teacher certification held by the incumbent.

(iii) The probationary term for professional educators in the Education Department employed as "Aides," "Assistants," "Associates," "Supervisors," "Chiefs," "Directors," all other titles that commence with the words "Coordinator" or "Associate Coordinator," and for the position of "Elementary, Secondary and Continuing Education Program Planner," shall be not less than 12 weeks nor more than 78 weeks.

(iv) The probationary term for positions of "Assistant Mortgage Officer," "Assistant Mortgage Officer (Appraising)," "Assistant Mortgage Officer (Leasing)" and "Assistant Mortgage Officer (Servicing)" shall be not less than 12 weeks nor more than 78 weeks.

(v) The probationary term for the positions of "Director of State Science Service," " Chief Scientist" (various parenthetics), "Principal Scientist" (various parenthetics), "Associate Scientist" (various parenthetics), "Senior Scientist" (various parenthetics), and "Scientist" (various parenthetics) shall be not less than 12 weeks nor more than 78 weeks.

(vi) The probationary term for the position of "Veterinarian 1" shall be not less than 52 weeks nor more than 78 weeks.

(vii) If an employee in the Department of Health, serving in a position for which the appointee is required to have Federal certification as mandated by the Health Care Financing Administration, does not acquire such certification within the 52 weeks prescribed in this paragraph, the probationary term of such person shall continue until such time as he or she has received the applicable Federal certification; or until such time as the appointee has had sufficient opportunity, in no case longer than 24 months, as determined by the Commissioner of Health under a policy approved by the Department of Civil Service and uniformly applicable to all of those appointed to such positions, to pass the required Federal certification, whichever occurs first.

(viii) The probationary term for positions of "University Police Officer 1" and "University Police Officer 1 (Spanish Language)" shall be not less than 52 weeks nor more than 78 weeks.

(2) Except as may be herein otherwise provided, every promotion to a position in grade 13 and below shall be subject to a probationary term of not less than 8 weeks nor more than 26 weeks; and every promotion to a position in grade 14 and above shall be subject to a probationary term of not less than 12 weeks nor more than 52 weeks. For the purposes of this subdivision, the term promotion shall include the appointment of a noncompetitive class employee to a higher grade position in the noncompetitive class, as well as the appointment of a noncompetitive class employee to a competitive class position in instances where such appointment was made from a promotional list established as a result of a competitive examination and said employee was admitted to such examination in accordance with law. Where a noncompetitive class employee who has completed probation in his or her current position, is being appointed to another noncompetitive position at the same or a lower salary grade, the appointing authority may, at the time of such appointment and with the consent of the employee, waive the probationary period.

(i) For the position of "Latent Fingerprint Examiner," the probationary term shall be 52 weeks.

(ii) For the position of "Vocational Instructor 2," the probationary period shall be no more than three years. The probationary period for the position of "Vocational Instructor 3" shall coincide with the term of validity remaining on the provisional teacher certification held by the incumbent. The probationary term for the position of "Vocational Instructor 4" shall be one year, unless the incumbent has completed three years' probation in the Vocational Instructor title series in the same appointing authority.

(iii) The probationary term for positions of "Investigative Aide," and "Investigative Aide (Spanish Speaking)" shall be not less than 12 weeks nor more than 52 weeks.

(iv) For the position of "Park Patrol Officer," the probationary term shall be not less than 26 weeks nor more than 52 weeks.

(v) For the position of "Highway Maintenance Supervisor 1" the probationary term shall not be less than 26 weeks nor more than 52 weeks.

(vi) For the position of "Highway Maintenance Worker 2" the probationary period shall not be less than 26 weeks nor more than 52 weeks.

(vii) For the position of "Thruway Maintenance Worker" the probationary period shall not be less than 26 weeks nor more than 52 weeks.

(viii) The probationary term for positions of "University Police Officer 1" and "University Police Officer 1 (Spanish Language)" shall be not less than 52 weeks nor more than 78 weeks.

(3) For every original permanent appointment and every training advancement or promotion to the following positions in the noncompetitive class designated to be in the Professional, Scientific and Technical Services negotiating unit, the minimum probationary term shall be as otherwise prescribed in this rule and the maximum probationary term shall be as follows:

Assistant Research Scientist (all specialties) 3 years

Research Physician 1 (all specialties) 3 years

Research Physician 2 (all specialties) 3 years

Research Physician 3 (all specialties) 3 years

Psychiatrist 1 (Research) 3 years

Psychiatrist 2 (Research) 3 years

Research Scientist 1 (all specialties) 3 years

Research Scientist 2 (all specialties) 3 years

Research Scientist 3 (all specialties) 3 years

Research Scientist 4 (all specialties) 3 years

Research Scientist 5 (all specialties) 3 years

Research Scientist 6 (all specialties) 3 years

Research Scientist 7 (all specialties) 3 years

Research Scientist 8 (all specialties) 3 years

(4)

(i) Every transfer, as defined in section 1.2 of this Chapter, and every interinstitutional transfer as hereinafter defined, made at the request or with the consent of the employee, to a position in grade 13 and below shall be subject to a probationary term of not less than 8 weeks nor more than 26 weeks; every such transfer to a position in grade 14 and above shall be subject to a probationary term of not less than 12 weeks nor more than 52 weeks; provided, however, that the appointing authority having jurisdiction over a position to which transfer is sought may, at its option, elect to waive the probationary term required for such position.

(ii) An interinstitutional transfer means a transfer from a position in one State institution to a position in another State institution in the same department, or from a noninstitutional position in a State department to a position in an institution under the jurisdiction of such department, or vice versa. With respect to interinstitutional transfers in the Department of Health, the following shall be deemed separate and distinct appointing authorities, thereby making such transfers subject to probationary periods prescribed by this section:

Central office, including the regional and district offices

Helen Hayes Hospital

New York State Veterans' Homes (Oxford, Batavia, St. Albans and Montrose)

(5)

(i) An appointment, promotion or transfer shall become permanent upon the retention of the probationer after his or her completion of the maximum period of service or upon earlier written notice following completion of the minimum period that his or her probationary term is successfully completed or, in the case of a transferee, upon written notice that the appointing authority has elected to waive the serving of the probationary term.

(ii) If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service. The appointing officer may, however, in his discretion, offer such probationer an opportunity to serve a second probationary term of not less than 12 nor more than 26 weeks in a different assignment, in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service.

(iii) The probationer's supervisor shall carefully observe his conduct and performance and, at least two weeks prior to the end of the probationary term, shall report thereon in writing to the proper appointing authority. The supervisor shall also, from time to time during the probationary term, advise the probationer of his status and progress. A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one week prior to such termination and, upon request, shall be granted an interview with the appointing authority or his representative.

(c) Trainee appointment or promotion. The probationary term for a trainee appointment or trainee promotion shall coincide with the term of training service, except where an appointment from an open-competitive list can be made to either the trainee or journey level position; in that case, the probationary period for the trainee appointment will be from 26 to 52 weeks or the length of the training period, whichever is greater. If the conduct or performance of the probationer is not satisfactory, his employment may be terminated at any time after the completion of a specified minimum period of service and on or before the completion of the term of training service. Such specified minimum period of service, unless otherwise prescribed in the announcement of examination, shall be eight weeks.

(d) Transfers: probationers. A probationer shall be eligible for transfer; provided, however, that upon such transfer he shall serve a complete probationary period in the new position in the same manner and subject to the same conditions as required upon his employment in the position from which transfer is made.

(e) Leave for probationers. When a permanent employee is promoted or transferred to a position in which he is required to serve a probationary term, the position thus vacated by him shall not be filled, except on a temporary basis, during such probationary term. At any time during such probationary term the employee shall have the right, upon reasonable notice, to return to his previous position at his own election. If the conduct or performance of the probationer is not satisfactory, he shall be restored to his former permanent position at the end of this probationary term.

(f) Reinstatement. An employee who is reinstated to a position in accordance with section 5.4 of this Title, either in his former agency or another agency, shall serve a new probationary period in the same manner and subject to the same requirements as apply hereunder upon original appointment to such position.

(g) Absence during probationary term. Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. When the probationary term for a trainee appointment or trainee promotion exceeds one year, any periods of authorized or unauthorized absence in such probationary term aggregating up to 20 workdays multiplied by the number of years, including a fraction of a year, constituting the probationary term, may in the discretion of the appointing authority, be considered as time served in the probationary term. Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.

(h) Restoration to eligible list. A probationer whose employment is terminated or who resigns before the end of his probationary term may request that his name be restored to the eligible list from which he was appointed, provided such list is still in existence. His name may be restored to such list if the Department of Civil Service, after due inquiry, determines that the probationer's service was such that he should be given a second opportunity for appointment.

(i) Temporary or provisional service in higher level position. When an employee who has not completed his probationary term is appointed on a temporary or provisional basis to a higher level position, the period of temporary or provisional service rendered by such employee in such higher level position may, in the discretion of the appointing authority, be considered as satisfactory probationary service in his lower position and may be counted as such in determining the satisfactory completion of such probationary term. At any time after the expiration of the minimum period of the probationary term, or the entire probationary term if it be one of fixed duration, the appointing authority shall, on request of such probationer, furnish his decision in writing as to whether or not service in such higher level position shall be considered as satisfactory probationary service. In the event of an adverse decision by the appointing authority, such probationer, at his request, shall be returned to his lower position for sufficient time to permit him to complete his probationary term. The employment of such a probationer in his lower position shall not be terminated at the end of his probationary term on account of unsatisfactory service unless he shall have actually served in such position, in the aggregate, at least a period of eight weeks.

(j) Removal during probationary term. Nothing contained in this section shall be construed to limit or otherwise affect the authority of an appointing authority, at any time during the probationary term, to remove a probationer for incompetency or misconduct, under section 75 of the Civil Service Law or an agreement negotiated between the State and an employee organization pursuant to article 14 of such law.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 4.5