(a) A new appointment to a position in a state agency or institution of higher education covered by this subchapter shall not be at a rate of pay greater than the base pay level established for the grade of the position unless a special rate of pay is requested and approved as follows:
(1) (A) A state agency or institution of higher education may request a special rate of pay for either a current or prospective employee within the state agency or institution if:
(i) Prevailing market rates of pay for a specific classification title are such that the state agency or institution is unable to competitively recruit at the base pay level for the grade assigned to that classification;
(ii) An acute shortage of qualified applicants for a specific classification exists;
(iii) The state agency or institution desires to obtain the services of an exceptionally well-qualified applicant for a specific position; or
(iv) To meet any requirements of the Fair Labor Standards Act of 1938, 29 U.S.C. ยง 201 et seq., as it exists on July 1, 2009.
(B) (i) A state agency or institution of higher education may request a special rate of pay for a specific classification due to prevailing market rates of pay to hire a new employee up to the midpoint pay level of the appropriate grade of a classification on the appropriate pay plan with the written approval of the Chief Fiscal Officer of the State.
(ii) A state agency or institution of higher education may request a special rate of pay for a specific classification due to prevailing market rates of pay to hire a new employee up to the maximum pay level annual rate authorized for the grade assigned to a classification only with the approval of the Chief Fiscal Officer of the State after review by the Personnel Subcommittee of the Legislative Council.
(iii) A special rate of pay shall not be approved under this section unless the classification is properly reviewed and approved as a market rate classification and listed on a register of such classifications maintained by the Office of Personnel Management of the Division of Management Services of the Department of Finance and Administration.
(iv) The office shall file a report of all such classifications with the Personnel Subcommittee of the Legislative Council within the month following the approval.
(C) (i) If a special rate of pay has been approved for a specific classification due to prevailing market rates of pay or an acute shortage of qualified applicants, current employees within the state agency or institution assigned to the affected classification may be adjusted to the new approved rate of pay by the state agency or institution upon written approval by the Chief Fiscal Officer of the State.
(ii) The office shall file a report of all the employee salary adjustments with the Personnel Subcommittee of the Legislative Council within the month following the approval; or
(2) (A) A state agency or institution may request a special rate of pay for a specific individual applicant due to exceptional qualifications to hire a new employee at a salary level up to and including the midpoint pay level of the appropriate pay grade of a specific position with the written approval of the Chief Fiscal Officer of the State and up to the maximum pay level of the appropriate grade with the approval of the Chief Fiscal Officer of the State after review by the Personnel Subcommittee of the Legislative Council.
(B) This subdivision (a)(2) shall be used only for the hiring of an exceptionally well-qualified employee whose background and experience qualify the applicant to perform the job with very little or substantially less orientation and training than would be the case for a qualified applicant.
(C) Requests by a state agency or institution for a special rate of pay based on an exceptional level of qualifications held by a prospective employee may be approved if the:
(i) State agency or institution has documented to the satisfaction of the Chief Fiscal Officer of the State that no current employee of the affected state agency or institution applied for the position and who was determined by the state agency or institution to not be an equivalent alternative to the exceptionally well-qualified applicant. The Chief Fiscal Officer of the State shall supply upon request any supporting documentation to the Personnel Subcommittee of the Legislative Council; and
(ii) Prospective employee possesses a level of experience or educational credentials that would permit him or her to perform the duties and responsibilities of the position for which the special rate is being requested with significantly less training and orientation than all other qualified applicants.
(D) The hiring of a new employee under this subdivision (a)(2) shall not affect the salary level or salary eligibility of any existing employee within the state agency or institution.
(E) (i) This section shall apply to both prospective and current state employees.
(ii) This section shall apply only to current employees in positions in which the position has been advertised and the employee has competitively applied for the position by submitting a state application for consideration for the position. Otherwise, employees shall be compensated in accordance with subsection (d) of this section.
(b) If approval has been granted to a requesting state agency or institution for a special rate of pay at or below the midpoint pay level under this section, the Chief Fiscal Officer of the State shall report all approvals monthly to the Personnel Subcommittee of the Legislative Council.
(c) An employee who is compensated at the maximum pay level in a position assigned to the career service pay plan is eligible for salary adjustments authorized in this subchapter as an addition to his or her base salary up to the career pay level if the:
(1) Employee meets or exceeds the eligibility requirements approved by the office after review by the Personnel Subcommittee of the Legislative Council, which shall include at a minimum:
(A) Fifteen (15) cumulative years of full-time equivalent state service that may be in either classified or nonclassified regular positions but not in extra-help positions; and
(B) A performance evaluation rating at or above the satisfactory level for the preceding rating period; and
(2) Additional salary increase does not allow an employee's pay to exceed the career pay level for the position.
(d) (1) An employee promoted on or after July 1, 2009, shall have the maximum annual salary for which he or she is eligible established as follows:
(A) For a promotion to a position of a higher grade on the same pay plan, the employee's maximum rate of pay shall be increased by ten percent (10%); and
(B) For a promotion from a position on the career service pay plan to a position on the professional and executive pay plan, the employee's maximum rate of pay shall be increased by twelve percent (12%).
(2) (A) An employee who upon promotion is receiving a rate of pay below the lowest entrance pay level established for the new grade may be adjusted to that lowest entrance pay level for that grade.
(B) However, an employee's rate of pay upon promotion shall not exceed the maximum pay level of the grade assigned to the classification, unless the employee is eligible for career pay level on the career service pay plan as established in subdivision (c)(1) of this section.
(e) (1) When an employee is demoted for cause or voluntarily solicits a demotion, his or her rate of pay shall be:
(A) Fixed in the lower-graded position at a rate equal to ten percent (10%) less than the employee's rate of pay at the time of demotion for demotions of one (1) or more grades on the career service pay plan or on the professional and executive pay plan; and
(B) At a rate equal to twelve percent (12%) less than the employee's rate of pay at the time of demotion for demotions of one (1) or more grades from a position on the professional and executive pay plan to a position on the career service pay plan.
(2) If the employee's salary falls below the lowest entrance pay level of the new grade upon demotion, his or her salary may be adjusted to that lowest entrance level for that grade.
(3) An employee's rate of pay upon a demotion shall not exceed the amount provided by the maximum pay level of the grade assigned to the classification, unless the employee is eligible for career pay level on the career pay service plan under this section.
(f) (1) An employee who returns to a position in a classification the employee formerly occupied within a twelve-month period after promotion from the classification is eligible for a rate of pay no greater than that for which the employee would have been eligible had the employee remained in the lower-graded classification.
(2) An employee who is placed in a lower-graded position on either compensation plan because the original position has expired due to lack of funding, program changes, or withdrawal of federal grant funds may continue to be paid at the same rate as the employee was being paid in the higher-graded position upon approval of the office after seeking the review of the Personnel Subcommittee of the Legislative Council.
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