“AWOL” Separation of State Civil Service Employees – dangerous reality or all-too convenient management tool?
Anyone who has worked in a State para-military organization is familiar with the term “AWOL” or absent without leave. But the reality is that this is not a matter that frequently arises. When it does however, the consequences can be devastating and most employees don’t know what to do.
The legal basis for AWOL separation is derived from California Government Code Section 19996.2. Subsection (a) of this code states, “Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.”
The operative words here are absence “without leave”. Unless you are on leave which is considered to be of a protected status, such as FMLA or NDI, it is critical that your leave be approved by your chain of command and that you have proof of this approval in writing. Even if you have extensive leave credits on the books, if the leave is not approved then you can be considered to be “AWOL” and separated from your employment by virtue of a “voluntary” resignation.
While maintaining clear and open communications with your chain of command is the best approach, what are your options should you served with a notice of AWOL separation? While a true voluntary separation/resignation from state service does not carry an appeal right, there are certain situations when an employer may utilize the AWOL statute improperly to essentially terminate an employee.
Because of the potential for this abuse, the California Supreme Court ruled that certain pre-separation safe guards must attach to an AWOL separation and limited appeal rights as well (Coleman v. DPA (1991) 52 Cal.3d 1102). Just as when an employer seeks to impose disciplinary action a pre-disciplinary Skelly hearing is held, an employer must also grant an employee they are seeking to AWOL separate similar due process. This pre-removal safeguard is called a Coleman hearing after the case law it is derived from. A Coleman hearing operates nearly identically to a Skelly hearing in that the employee has the opportunity (with a representative) to present facts or evidence in mitigation or contradiction of the proposed AWOL separation. A hearing officer then makes a recommendation to the hiring authority and then a final decision is rendered.
But what if the decision to separate based on AWOL is upheld? The employee also has a right to an evidentiary administrative trial on the merits of the separation. This appeal process is termed, “Request for Reinstatement from AWOL Separation” and is conducted by the appropriate agency vested with authority to hear such appeals, i.e. SPB, CAL HR etc. Each agency has its own particular set of rules which govern the time frame in which to appeal.
There are two critical distinctions between a disciplinary appeal and a request for reinstatement. First, a disciplinary appeal requires the employee to file their appeal after the disciplinary action has gone into effect. For an AWOL the 15 day (plus 5 for mail) deadline to request an appeal begins from the date that the AWOL separation is proposed. This practically means that an employee must request their evidentiary trial at or near the same time as their Coleman hearing without even knowing if the Coleman hearing will be successful or not. Failure to do so may result in an inadvertent exceeding of the deadline to file an appeal leaving the employee without a remedy. Late filing can of course always be challenged for “good cause” but unfortunately ignorance of the rules does not satisfy this exception.
The second major distinction is that unlike disciplinary actions, the burden of proof is on the appealing employee and not on the employer. The employee must prove to an administrative law judge that (1) why the employee was absent (2) why the employee failed to obtain [approval for] leave and (3) that the employee is ready, able and willing to return to work OR has obtained the appointing power’s approval for a leave of absence.
The most challenging test here is likely to be the third as an individual who is, for example, out on extended leave due to a medical condition or illness, may not be able to show they can return to work. If communication and a working relationship have dissolved with the employer, they may not be willing to agree to a leave of absence.
One other factor to consider is that even if you are reinstated after an AWOL separation, back pay is not a guaranteed award and will be subject to any specific provisions of your bargaining unit’s Memorandum of Understanding. Whenever faced with an AWOL separation, always check with your union representation to confirm if your MOU has any specific provisions governing AWOL separations. These specific provisions can have a significant impact on the handling of your situation.
At the end of the day AWOL is a reality that can severely impact your career. If sustained, your Personnel File will reflect that you voluntarily resigned from the department and the State Controller’s Office will code you accordingly. However, your OPF will also contain the notice of AWOL and thus carry with it a potential stigma with any future employer.
The old saying, “an ounce of prevention is worth the pound of cure” rings true here and the real lesson is to be certain you confirm proper leave approval before you are faced with an AWOL separation. If you are not careful, your employer can use this statute as a tool to conveniently remove you from your employment.
