Employees Exempt From the State Personnel Act (EPA) Policy

Employees Exempt from the State Personnel Act (EPA) Policy

POL 05.15.1

Employment
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Authority: Board of Trustees

History: First Issued: May 22, 1981. Last Revised: June 6, 2007. Additional History Information.

Additional References:
Approval Authority for EPA Personnel Appointments Flow Chart
State Personnel Manual, Section 5 - Leave Policies
Community Service Leave (Human Resources Website)
N.C.G.S. §116-11(4) and (5) – Powers and Duties of the Board of Governors
N.C.G.S. §116-14 – UNC President; Professional Staff
N.C.G.S. §116-143 – Tuition and Fees for Staff and Faculty
N.C.G.S. §126-5 – Employees Subject to Chapter; Exemptions
N.C.G.S. §128-15 – Employment Preference for Veterans and their Spouses or Surviving Spouses
UNC-General Administration's - Guidelines Concerning Use of University of North Carolina Resources for Political Campaign Activities

Contact Info: Associate Vice Chancellor for Human Resources (919-515-3443)

1. SCOPE OF POLICY AND DEFINITIONS OF POSITIONS

1.1. Scope of Policy

1.1.1. Coverage

Positions Exempt from the State Personnel Act (EPA positions) are those positions that are not subject to the State Personnel Act and are classified in one of four categories: 1) EPA Professional, 2) Faculty, 3) Senior Academic and Administrative Officer Tier-I (SAAO Tier-I), or 4) Senior Academic and Administrative Officer Tier-II (SAAO Tier-II). University students who receive stipends are not covered by this policy.

1.1.2. Scope

1.1.2.1. EPA Professional: This policy (POL05.15.1) applies to all permanent EPA Professional employees and all Postdoctoral (Postdoc) employees.

1.1.2.2. Faculty: This policy does not apply to academic year (9-month) or fiscal year (12-month) faculty, but for Section 2.4 which applies to all faculty and Section 8 which applies to fiscal year (12-month) faculty only. POL05.20.1 Tenure Policies and Regulations contains the other applicable policies for faculty.

1.1.2.3. SAAO Tier-I: Sections 2.4, 6, 7, 8.2.1.2, 8.2.3, 8.2.4, 8.3, 8.5, 8.6 and 9 of this policy (POL05.15.1) apply to SAAO Tier-I positions. In addition, Chapter III-A of the Administrative Manual of The University of North Carolina applies to SAAO Tier-I employees.

1.1.2.4. SAAO Tier-II: Sections 2.4, 3, 4, 5, 6, 7, 8.2.1, 8.2.3, 8.2.4, 8.3, 8.5, 8.6, and 9 of this policy (POL05.15.1) apply to SAAO Tier-II positions. In addition, Chapter III-A of the Administrative Manual of The University of North Carolina applies to SAAO Tier-II employees.

1.2. Definitions of Positions

1.2.1. EPA Professional:

1.2.1.1. Permanent EPA Professionals: Employees not subject to the State Personnel Act (N.C.G.S. Chapter 126) and who are not: (1) faculty subject to institutional tenure regulations; (2) employees within administrative categories of employment subject to N.C.G.S. § 116-11(4), N.C.G.S. §116-11(5), or N.C.G.S. § 116-14; (3) positions within the "physicians or dentists" category under N.C.G.S. § 126-5; and (4) University students who are employed incident to their status as students, as in graduate teaching assistantships or work-study positions.

1.2.1.2. Postdoc: Employees in a Postdoc status include Research Associate Postdocs, Resident Postdocs, Teaching Postdocs, and Postdoc Interns. Postdocs may not be in such status for cumulative period of more than three (3) years, do not contribute to a retirement system, and are defined as temporary employees.

1.2.2. Faculty: Employees covered by the NC State Tenure Policies and Regulations (POL05.20.1).

1.2.3. Senior Academic and Administrative Officer Tier-I: Chancellor [N.C.G.S. 116-11(4)]; vice chancellors, provosts, deans, and directors of major administrative, educational, research and public services activities designated by the Board of Governors [N.C.G.S. 116-11(5)].

1.2.4. Senior Academic and Administrative Officer Tier-II: Associate and assistant vice chancellors; associate and assistant deans; and other administrative positions that have been designated and approved by the president.

2. APPOINTMENT TO EPA POSITIONS

2.1. Method of Appointment

Every appointment to an EPA position shall be made by the chancellor or chancellor's designee by means of a letter of appointment that fulfills the requirements of Section 2.

2.2. Letter of Appointment

Reference the Administrative Manual of the University of North Carolina Chapter III-B-1 Section II. B.

2.3. Contingent Appointments

When an EPA position is funded in whole or substantial part from sources other than continuing State budget funds or permanent trust accounts, the letter of appointment shall state 1) continuation of the employee's service in that position is contingent upon the continuing availability of funds from such other sources to support that position, 2) specify the source of such funds, and 3) that the effect of such contingency may apply without the additional notice otherwise required by Section 3.1, 3.2, and 3.3 provided that the affected employee shall be informed at the earliest practicable date of the occurrence of such a funding contingency.

2.4. Individuals Covered by More than One Employment Policy

2.4.1. When an employee is to serve simultaneously in more than one type of EPA position as defined in Section 1.2, one position shall be designated in writing as the base that governs the conditions of employment and the rights and responsibilities of the employee. If appointment to an additional type of EPA position occurs subsequent to the initial appointment, the letter of appointment to the additional position shall embody the required designation of base employment. The designation of base employment shall specifically describe the different rights, duties, and compensation for each position and the relationship, if any, between/among the positions.

2.4.2. Any funding contingency of the type referred to in section 2.3 shall be set forth separately for the covered position and for the other position(s), since the operation of any such contingencies may be independent.

2.5. Terms of Appointment and Reappointment

2.5.1. An initial appointment and any reappointment(s) for a permanent EPA Professional position may be either "fixed-term" or "at will". All Postdoc appointments and any reappointments are made fixed-term.

2.5.1.1. Fixed-term appointment: An initial fixed-term appointment and any fixed-term reappointment(s) for a permanent EPA Professional may be for a period of no more than five years. Postdocs may not be in such status for cumulative period of more than three years.

2.5.1.2. "At will" appointment: An appointment may be designated as "employment at will" subject to continuation or discontinuation at the discretion of the chancellor or chancellor's designee. Such an appointment is for an indefinite term.

2.5.1.3. A fixed-term appointment may be converted to an "at will" appointment at the end of a fixed-term. An "at will" appointment may be converted to a fixed-term appointment at any time.

2.5.2. Visiting Appointments

An appointment and any subsequent reappointment(s) in a visiting EPA position shall be for a period(s) of no more than five years. If the visiting appointment is funded in whole or substantial part from sources other than continuing State budget funds or permanent trust accounts, the letter of appointment shall state that: 1) continuation of the employee's service in that position is contingent upon the continuing availability of funds from such other sources to support that position, 2) specify the source of such funds, and 3) state that the effect of such contingency may apply without the additional notice otherwise required by Sections 3.1, 3.2 and 3.3. Any subsequently proposed change from a visiting appointment to a regular appointment is subject to this policy (POL05.15.1).

2.6 Rank/Title, Appointment, Reappointment, and Promotion

Where applicable, a university unit may develop procedures and criteria regarding rank/title, appointment, reappointment, and promotion. Such procedures and criteria must be in accordance with the provisions of section 2.5 and approved by the executive officer to whom the unit reports.

3. DISCONTINUATIONS OF EMPLOYMENT

3.1. Discontinuation of Appointment

3.1.1. Discontinuation with Notice or Severance Pay

Employment within an EPA position that is established by the letter of appointment to be an employment "at will" is subject to discontinuation at any time at the discretion of the chancellor or chancellor's designee; provided, that such a discontinuation (as distinguished from discharge for cause, Section 3.4) shall be subject to advance timely notice of discontinuation, as follows: 1) during the first year of service, not less than 30 days notice prior to discontinuation of employment or the payment of severance pay for 30 days; 2) during the second and third years of service, not less than 60 days notice prior to discontinuation of employment or the payment of severance pay for 60 days; and 3) during the fourth and all subsequent years of service, not less than 90 days notice prior to discontinuation of employment or the payment of severance pay for 90 days. After consultation with the provost, vice chancellor, and/or dean as appropriate, the chancellor may determine, at his or her discretion, that it is in the best interest of the University to provide the employee with severance pay in lieu of notice. The severance pay amount must be directly related to the required notice period. Any agreement to compensate the employee in excess of amount set forth in this section must be approved by the Board of Trustees.

3.1.2. Retreat to a Faculty Position

An EPA employee who is employed at will and holds a concurrent tenured faculty appointment may assume the rights and responsibilities of that faculty appointment in the home department after voluntary or involuntary removal from an administrative appointment, unless a proceeding is initiated to discharge or demote the employee from the faculty position. At the discretion of the chancellor and after consultation with the Provost and/or dean as appropriate, the employee may be granted a paid leave of up to one year in order to prepare for the faculty responsibilities. Absent an agreement to the contrary, the funding sources will not change during the paid leave. Any administrative stipend paid during the administrative appointment must be removed once the employee assumes the duties and responsibilities of the faculty position. The employee's new salary must be adjusted to a 9-month or 12-month faculty salary that is commensurate with the salaries of comparable faculty members.

3.1.3. Reappointment of an Administrator without Faculty Retreat Rights

An EPA employee who is employed at will has no claim to a position at the University. The University may determine that it is in its best interest to assign an employee without faculty retreat rights to another administrative or teaching position. In the case of such reassignment, the employee must receive advance notice in accordance with Section 3.1.1 above, and the new salary must be appropriate to the assignment. Any exception to the above must be approved by the Board of Trustees.

3.2. Expiration of a Fixed-Term Appointment

Employment within an EPA position that is established by the letter of appointment to be for a stated definite term expires automatically at the conclusion of the stated term; such an appointment may be renewed or extended at the option of the employer, by a new appointment as required by Section 2. If the employer intends not to renew or extend the term contract: 1) with respect to an appointment of one year or less, no notice of intent not to renew shall be required; the letter of appointment is considered to be adequate notice of the expiration of the term; 2) with respect to an appointment of more than one year, notice of intent not to renew shall be transmitted in writing at least 90 days prior to the expiration date of the term. Failure to provide 90 days written notice shall result in the automatic extension of employment for a period that would equal the 90 day notice requirement.

3.3. Termination of Employment Because of Financial Exigency or Program Curtailment or Elimination

Employment within an EPA position that is established by the letter of appointment to be for a stated definite term may be terminated prior to expiration of the stated term because of: 1) demonstrable, bona fide institutional financial exigency, or 2) major curtailment or elimination of a program. "Financial exigency" is defined to mean a significant decline in financial resources of the University that compels a reduction in the institution's budget. The determination of whether a condition of financial exigency exists or whether there shall be a major curtailment or an elimination of a program shall be made by the chancellor, with advance notice to and approval by the president and the Board of Governors. If the financial exigency or curtailment or elimination of a program is such that the contractual obligation to an employee within an EPA position cannot be met, the employment of the individual may be terminated, subject to the following notice requirements; 1) during the first year of service, not less than 30 days notice prior to termination; 2) during the second and third years of employment, not less than 60 days notice prior to termination; and, 3) during the fourth and all subsequent years of service, not less than 90 days notice prior to termination.

3.4. Discharge for Cause

Any employee occupying an EPA position may be discharged for stated cause. Discharge for cause is to be distinguished from discontinuation of appointment with notice or severance pay (Section 3.1.1), expiration of a fixed-term appointment (Section 3.2.) and termination of employment because of financial exigency or program curtailment or elimination (Section 3.3.). Stated causes for discharge shall include, but not necessarily be limited to, incompetence, unsatisfactory performance, neglect of duty, or misconduct that interferes with the capacity of the employee to perform effectively the requirements of his or her employment. Discharge for cause is to be preceded by written notice of intent to discharge and is subject to Section 4 of this policy. When an employee occupying an EPA position has been notified of the intention to discharge the employee for cause, the chancellor may suspend the employee's employment at any time and continue the suspension until the chancellor makes a final decision concerning discharge. The power to suspend shall be invoked only in exceptional circumstances and such suspension shall be with full pay.

4. PROCEDURES FOR DISCHARGE FOR CAUSE

4.1. The penalties of discharge or suspension may be imposed only in accordance with the procedures set forth in this section. For purposes of this policy, an individual serving a stated term should be regarded as having the protection of these procedures until the end of the term. These discharge procedures shall not apply to cases of non-reappointment, discontinuation, or termination of employment.

4.2. The executive officer of the employee's division shall send the individual by certified mail, return receipt requested, a written statement of intention to discharge or suspend the individual. The statement shall include notice of the individual's rights, upon request, to both written specification of the reasons for the intended action and a hearing.

4.3. If, within five days* after receiving the notice referred to in Section 4.2 above, the individual makes no written request for either a specification of reasons or a hearing, the individual may be discharged without recourse to any University grievance or appellate procedure.

* The word "day" shall mean any day except Saturday, Sunday, or an institutional holiday. In computing any period of time, the day in which notice is received is not counted but the last day of the period being computed is to be counted.

4.4. If, within five days after receiving the notice referred to in Section 4.2 above, the individual makes written request, by certified mail, return receipt requested, for a specification of reasons, the executive officer shall supply such specification in writing by certified mail, return receipt requested, within five days after receiving the request. If the individual makes no written request for a hearing within five days after receiving the specification, the individual may be discharged without recourse to any University appellate procedure.

4.5. If the individual makes a written request for a hearing within five days, the chancellor shall appoint a hearing committee consisting of three persons who occupy EPA positions and who are not supervisors of the individual. The chancellor shall designate one of the three members of the hearing committee as chairperson. The hearing shall be on the written specification of reasons for the intended discharge. The hearing committee shall accord the individual twenty days from the time it receives a written request for a hearing to prepare a defense. The hearing committee may, upon the individual's written request and for good cause, extend this time by written notice to the individual and to the chancellor.

4.6. The hearing shall be closed to the public. The individual shall have the right to counsel, to present the testimony of witnesses and other evidence, to confront and cross-examine adverse witnesses and to examine all documents and other adverse demonstrative evidence. Formal rules of evidence shall not apply; relevancy of evidence shall be determined by the chairperson of the hearing committee. All proceedings shall be recorded; upon request, a copy thereof shall be furnished to the individual for a reasonable charge not to exceed the cost of producing the copy.

4.7. The burden of proof shall be on the Executive Officer, or the Executive Officer's designee of the employee's division, and they, with their counsel, may participate in the hearing to present evidence, cross-examine witnesses and make argument.

4.8. In reaching decisions on which its written recommendations to the chancellor shall be based, the committee shall consider only the evidence presented at the hearing and such written or oral arguments as the committee, in its discretion, may allow. The committee shall make its written recommendations to the chancellor within ten days after its hearing concludes.

4.9. If the chancellor concurs in a recommendation of the committee that is favorable to the individual, the chancellor's decision shall be final. If the chancellor declines to accept a committee recommendation that is favorable to the individual or concurs in a recommendation that is unfavorable to the individual, the individual may petition the chancellor to review the decision within ten days after receipt of notice of the chancellor's decision. Upon receipt of the petition for review, the chancellor shall meet with the individual and hear any argument that the appropriate procedures were not followed or that the individual was denied any opportunity to submit relevant evidence. Upon conclusion of this review, the chancellor may remand the matter to the hearing committee for further hearings or affirm the chancellor's prior decision. The affirmation of a decision is final. An individual may petition for a subsequent review of a decision pursuant to Section 501 C (4) of the UNC Code. Such petition must be transmitted to the president by the chancellor.

4.10. When an individual has been notified of the University's intention to discharge the employee, the chancellor may suspend the employee at any time and continue the suspension until a final decision concerning discharge has been reached by the chancellor. Suspension shall be with full pay.

5. REVIEW OF DISCONTINUATIONS OR NON-REAPPOINTMENTS AND OTHER EMPLOYMENT GRIEVANCES

Individuals occupying EPA positions shall have access to the NC State University Grievance Procedure for Faculty and EPA Professional Employees adopted by the Board of Trustees (Policy 05.25.1). Grievances concerning discontinuation of employment with notice or severance pay pursuant to Section 3.1.1 or non-reappointment pursuant to Section 3.2 may be brought only upon allegations of violations of applicable notice or severance pay requirements of Section 3.1 or 3.2 or violations of any provision of Sections 6 or 7 of this policy.

6. EQUAL EMPLOYMENT OPPORTUNITY

It is the policy and intention of North Carolina State University that there be equal employment opportunity and freedom from unlawful discrimination in all employment within the University. There shall be no discrimination in covered positions on the basis of race, color, national origin, sex, religion, creed, disability, veteran status or age.* Employment in covered positions shall be conducted in accordance with all provisions of state or federal law or regulation prohibiting any such discrimination, and in accordance with the University's affirmative action policy.

* Bona fide occupational qualifications or other exceptions to those general prohibitions, specifically provided for by State or Federal law are applicable to EPA positions.

7. PROTECTED ACTIVITY

Employment in EPA positions shall not be adversely affected by the exercise of rights guaranteed by the First Amendment to the United States Constitution or by Article I of the North Carolina Constitution; provided, that employees in EPA positions shall be subject to any limitations on political activity established by Article 5 of N.C.G.S. Chapter 126. The Board of Governors' policy in this regard, as adopted on January 16, 1976, and as it may be revised from time to time, shall apply to EPA positions.

8. HOLIDAY AND LEAVE ENTITLEMENT

8.1. Holidays

EPA employees shall be subject to the same number of days as given to employees subject to the State Personnel Act.

8.2. Annual Leave (effective July 1, 2001)

8.2.1. Basic Leave Policy

8.2.1.1. Annual Leave: Annual leave is accrued at a monthly rate and is adjusted proportionately for a part-time employee who works halftime or more (0.50 - 0.99 FTE). The monthly earnings amount is equal to one-twelfth of the annual rate for each month the employee works or is on approved leave with pay. Monthly leave is earned when an employee works or is on approved leave with pay at least half the working days of a month.

8.2.1.1.1. Permanent EPA Professional and SAAO Tier II Employees: The amount of annual leave to which a permanent full-time (1.00 FTE) EPA employee shall be entitled to accrue is twenty-four (24) workdays per year.

8.2.1.1.2. SAAO Tier I Employees: The amount of annual leave to which a SAAO Tier I employee shall be entitled to accrue is 26 workdays per year.

8.2.1.1.3. Postdoc Employees: A Postdoc employee is entitled to earn annual leave based on years of aggregate state service as a Postdoc employee. The amount of annual leave entitlement shall be as follows:

Years as a Days of Annual Leave
Postdoctoral Employee Earned Per Year
Employee Per Year
Less than 2 years 12
2 but less than 3 years 14

8.2.1.2. Definition of Year: NC State defines a year as the "calendar year" (January 1 - December 31). The scheduling of an employee's annual leave shall be subject to the approval of the employee's supervisor. With respect to an incumbent employee who is earning more than 24 days per year as of the date this policy becomes effective, such employee shall be entitled to continue to earn leave at that rate.

8.2.1.3. Leave Carry Forward and Conversion: The maximum number of unused days of annual leave that an EPA employee may accrue and carry forward from one calendar year to the next shall be thirty (30) days. Annual leave in excess of 30 days will be automatically converted to sick leave at the end of the calendar year.

8.2.2. Transfer of Accrued Annual Leave

NC State does not accept the transfer of annual leave. This includes any leave from a UNC constituent institution or State of North Carolina agency or local North Carolina government.

8.2.3. Advancement of Annual Leave

Subject to approval by the employee's supervisor, an EPA employee may be advanced an amount of annual leave and/or sick leave up to a combined maximum deficit balance of twenty (20) days. Appropriate uses for sick leave are prescribed in the State Personnel Manual, Section 5. A supervisor may approve a deficit balance of annual and/or sick leave, for extenuating circumstance or exceptional need. The permissible negative balance is adjusted proportionately for a permanent part-time employee who works halftime or more (0.50 - 0.99 FTE). If an employee separates from NC State and has taken more annual and/or sick leave than has been accrued, then NC State will determine the amount of annual and/or sick leave the employee must repay to NC State and make deductions from the employee's final salary check accordingly. However, if the employee has been advanced more leave than can be repaid in the employee's final paycheck, the employee will be billed accordingly.

8.2.4. Payout of Accrued Annual Leave

8.2.4.1. An EPA employee (excluding Postdoc employees) who has accrued unused annual leave upon discontinuation of employment from NC State and who either does not elect or is not eligible to transfer such accrued leave to another State or local governmental agency, shall be paid for such unused annual leave. A Postdoc employee with unused accrued annual leave as of the effective date of discontinuation or non-reappointment of employment shall be required to take the unused annual leave prior to the effective date of discontinuation or non-reappointment of employment.

8.2.4.2. The amount paid to an EPA employee (excluding Postdocs) who has been employed an aggregate of 24 months or less by one or more State or local governmental agencies is equal to one day for each month worked less the number of days of annual leave taken during the employment period. An employee who has been employed for more than 24 months shall be paid subject to a maximum of 30 such days.

8.2.4.3. If an EPA employee (excluding Postdocs) changes contract status from 12 months to 9 months, then the employee's annual leave balance as of the effective date of the contract change will be paid out at the time of the appointment conversion. An EPA employee who transfers inside NC State to an SPA position shall have the annual and sick leave balances transferred to that position.

8.3. Sick Leave, Family and Medical Leave, Civil Leave, Military Leave, and Community Service Leave

8.3.1. Sick Leave

8.3.1.1. A permanent EPA employee and a Postdoc employee shall be subject to the same policies concerning sick leave as may be prescribed for employees subject to the State Personnel Act.

8.3.1.2. Subject to approval by the employee's supervisor, a permanent "at-will" EPA employee may be advanced an amount of annual and/or sick leave up to a combined maximum deficit balance of twenty (20) days. A permanent fixed-term EPA employee or Postdoc employee may be advanced an amount of annual and/or sick leave up to the amount that can be earned through the appointment end date or a maximum of twenty (20) days, whichever is less. Appropriate uses for sick leave are prescribed in the State Personnel Manual, Section 5. A supervisor may approve a deficit balance of annual and/or sick leave, for extenuating circumstance or exceptional need. The permissible negative balance is adjusted proportionately for a permanent part-time employee who work halftime or more (0.50 - 0.99 FTE). If an employee separates from NC State and has taken more annual and/or sick leave than has been accrued, NC State will determine the amount of annual and/or sick leave the employee must repay to the institution and make deductions from the employee's final salary check accordingly. However, if the employee has been advanced more leave then can be repaid in the employee's final paycheck, the employee will be billed accordingly.

8.3.2. Family and Medical Leave, Civil Leave, Military Leave, and Community Service Leave

A permanent EPA employee and a Postdoc employee shall be subject to the same policies concerning family and medical leave, civil leave, military leave, and community service leave as may be prescribed for employees subject to the State Personnel Act.

8.4. Leave of Absence without Pay

A permanent EPA employee and a Postdoc employee may request a leave of absence without pay, subject to approval of such leave by the chancellor or chancellor's designee, as applicable.

8.5. Voluntary Shared Leave

A permanent EPA employee and a Postdoc employee shall be subject to the same provisions concerning shared leave as are applicable to employees subject to the State Personnel Act with the exception that the donation and acceptance of such leave shall be computed on the basis of days rather than hours.

8.6. Educational Entitlement

A permanent EPA employee is entitled to the same opportunities as other University employees to invoke the privilege of tuition waiver conferred by N.C.G.S. §116-143. Educational entitlement does not apply to Postdoc employees.

9. STATUTORY AND OTHER RULES OF EMPLOYMENT

9.1. Privacy of Personnel Records

An EPA employee has the protections of and is subject to the provisions of Article 7 of N.C.G.S.126, entitled "The Privacy of State Employee Personnel Records."

9.2. Employment Preference for Veterans

An EPA employee has the protections of and is subject to the provisions of N.C.G.S.128-15 and 128-15.1, which provide for preference in employment for veterans of United States military service and their spouses and widows or widowers.

9.3. Employment of Related Persons

An EPA employee is subject to the policy concerning employment of related persons as adopted by the Board of Governors on April 13, 1973, and as it may be revised from time to time.

9.4. Retirement

An EPA employee may retire in accordance with the provisions of Chapter 135 of the North Carolina General Statutes ("Retirement System of Teachers and State Employees"). Nothing in this policy shall prevent an employee from retiring or an administrator with faculty retreat rights from participating in phased retirement consistent with existing policies.

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