Before laying off as many as 22,000 city workers with civil-service status to deal with a $9-billion budget gap, the de Blasio administration would have to start by eyeing the nearly-15,000 provisional employees it has on the payroll, according to the chair of the City Council Civil Service and Labor Committee.
Under state law, provisional employees are supposed to hold jobs for a maximum of nine months, yet thousands do stay in city jobs for years without passing—and sometimes even taking—a civil service test. Thousands of others are tenured civil servants in a lower title who were promoted provisionally and have the option to revert back to in their civil-service line to avoid being discharged.
'Pure' Ones Go First
“If you don’t have a civil service title those ["pure" provisional] employees would go first,” said Council Member I. Daneek Miller. “Does a provisional Engineer have rights over a permanent Cafeteria Worker? I don’t think so.”
The former president of an Amalgamated Transit Union local in Queens, Mr. Miller said he strongly supported the Municipal Labor Committee’s strategy of pressing Albany to approve a bill allowing the city to offer an early-retirement-incentive program as an alternative to layoffs done under a "last-in, first-out" seniority system.
Mr. Miller, who also co-chairs the Council’s Black, Latino and Asian Caucus, expressed concern that by laying off the most-recent civil-service hires, the city would be undercutting years of progress made in diversifying the municipal workforce.
“We can save jobs through attrition and early retirement while also making sure we are building up the next generation of civil servants,” he said. “If we just resort to last hired is first fired and out the door, all of that diversity that was achieved will be in danger.”
For months, Mayor de Blasio has said he'd need to lay off up to 22,000 city workers to address the budget shortfall unless he got a billion dollars in savings from municipal unions, $5 billion in additional borrowing capacity from Albany or an influx of Federal aid. He insisted no agency would be exempt from the payroll trimming.
Layoffs Pegged to Titles
According to the Department of Citywide Administrative Services, which oversees personnel issues, there are 14,777 provisional employees, down from 30,000 in 2008. More than 13,000 of the provisionals have more than the permitted nine months' service in their jobs.
“Layoff plans are developed at the agency level and would specify civil-service titles that would be subject to layoffs,” said Nick Benson, DCAS’s director of communications. “By law, provisional employees in designated titles would be laid off before permanent-class employees in those titles.”
DCAS does not review or approve agencies' layoff plans but has given them "written guidance that explains the law/procedures when developing their own plans.”
Initially, the de Blasio administration was prepared to send out 30-day layoff warnings to the unions which would have been effective Oct. 1. The MLC persuaded the Mayor to hold while the unions lobbied state legislators for the additional borrowing authority.
There is no requirement to give notice to provisional employees, according to DCAS.
Joe Puleo, president of District Council 37's Local 983, said dozens of provisional Urban Park Rangers whom he represented were recently dismissed without advance notice, "no two weeks or anything. And there’s no inverse seniority where it matters when you were hired. That’s the thing about a provisional job, you could hold it for a day or 10 years, and you can still be wiped out with layoffs.”
Limited Rights at 2 Years
Under a 1986 city law spurred by the habit of Mayor Ed Koch's administration of keeping provisionals on the payroll long past the legal limit, those who hold their jobs for at least two years have the right to a hearing before they can be fired. When unions back then charged that provisionals could be exploited by management because of their lack of job protection, Mr. Koch responded that this helped the city by giving those employees an added incentive to be productive. The unions countered that it made those workers less likely to report wrongdoing by their superiors, making their agencies less productive and depressing morale.
DCAS is required to track the number of provisional employees in every agency, the length of time they have been employed and whether they have tenure in a lower title. According to its February report the Parks Department had 634 provisional employees, 152 had civil-service status in a lesser title.
Of those listed as “pure” provisionals, 152 had been working for 25 months or longer.
In the Office of the Mayor, the DCAS report listed 426 provisional employees, with just 45 with civil-service status. Of the 381 “pure” provisionals, 203 had been in the job for 25 months or longer.
The Department of Education listed 1,784 provisional employees, including 256 with a past civil-service line. Some of the most-populous titles were Occupational Therapist (374), Education Officer (142), and School Food Service Manager (62).
A Need in Emergencies
Gloria Middleton, who is president of CWA Local 1180 which represents Administrative Managers across multiple city agencies, believes there is a legitimate place for using provisionals, but doing so should not undermine the integrity of the civil service.
"Under the Long Beach decision, the City should only use provisionals in the case of a non-existing competitive list,” Ms. Middleton said in an email. “However, the status of provisionals needs to be taken on a case-by-case basis, especially because of the current situation we are in. With the huge increase in the number of unemployed, for example, there are so many more people applying for food stamps and the City probably needs provisionals to handle the vast increase in applications.”
She continued, “The fact that the City still has so many provisionals and we are facing huge budgetary issues is a concern. They need to follow the law while understanding that essential services must be provided. I stand with the MLC that the state must provide an Early Retirement Incentive and allow the City to borrow so no one has to be laid off in this complicated economic atmosphere."
Talks continue between the MLC and the city but there appears to have been no progress in getting Albany to extend the city’s borrowing power.
Stalemate in D.C.
In Washington Sept. 28 House Speaker Nancy Pelosi tried to jump-start negotiations with Senate Majority Leader Mitch McConnell over an aid package for local and state governments hit hard by the combined drop-off in tax revenues and the unexpected costs of battling the coronavirus.
In her latest version of the Heroes Act, Ms. Pelosi dropped her initial $915 billion proposal for local and state aid to $436 billion, which is still three times more than Congressional Republicans have proposed.
Mr. McConnell had dismissed House Democrats' earlier local-and-state-aid request as merely a “Blue-State bailout” to cover up for what he maintained was fiscal mismanagement predating the pandemic.
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