Chapter 59

§ 5901 Definitions. (a) As used in this chapter, unless the context requires a different meaning: (1) “Agency” means any agency, board, department, bureau or commission of this State which receives an appropriation under the general appropriation act of the General Assembly. (2) “Board” means the Merit Employee Relations Board created by this chapter. (3) “Board member” means a member of the Board. (4) “Classified service” or “state service” shall have the meaning as set forth in § 5903 of this title. (5) “Merit comparable positions” means those positions which for salary determination purposes, are assigned, pursuant to the State Budget Act, classification titles and/or pay grades that are comparable to the titles and/or pay grades of similar positions in the classified service. (6) “Rules” means those rules adopted by the Board pursuant to this chapter. (7) “Secretary” means the Secretary of the Department of Human Resources. (b) The definitions of terms appearing in § 1302 of Title 19 apply to this chapter. 29 Del. C. 1953, §  5901; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  1 ; 68 Del. Laws, c. 215, §  1 ; 69 Del. Laws, c. 436, §  9 ; 75 Del. Laws, c. 88, §  20(6) ; 81 Del. Laws, c. 66, §  28 ; 81 Del. Laws, c. 425, § 21 ; § 5902 General purpose. The general purpose of this chapter is to establish for this State a system of personnel administration based on merit principles and scientific methods governing the employees of the State in the classified service consistent with the right of public employees to organize under Chapter 13 of Title 19. 29 Del. C. 1953, §  5902; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  2 ; § 5903 Classified service and exemptions. Unless otherwise required by law, as used in this chapter, “classified service” or “state service” means all positions of state employment other than the following positions, which are excluded: (1) Members of the General Assembly and others elected by popular vote and persons appointed to fill vacancies in elective offices. (2) Officers and employees of the Senate and House of Representatives of the General Assembly. (3) Election officers. (4) Heads of state agencies, members of boards and commissions and the chief administrator employed by each board or commission. (5) One principal assistant or deputy and 1 private secretary for each head of a state agency. (6) Officers and employees in the office of the Governor. (7) Assistant Public Defenders, Deputy Attorneys General, and state detectives appointed by the State Attorney General. (8) Physicians or lawyers acting primarily in a professional capacity and not in an administrative capacity, except those physicians or lawyers employed by the State on a full-time basis. (9) Persons employed as consultants in a professional or scientific capacity to conduct a temporary and special inquiry, investigation, examination or service on behalf of the General Assembly or a committee thereof, or by authority of the Governor or by authority of a head of a state department, agency, board or commission. (10) Patient or inmate help in charitable, penal, correctional and other state institutions. (11) Personnel in the military service of the State. (12) All employees of each state school district, special school district and charter schools, all employees of the Department of Education and all employees who teach in state institutions pursuant to unit allocations as set forth in § 1703 of Title 14. (13) All employees of the University of Delaware and of Delaware State University. (14) Trustees of the University of Delaware and Delaware State University. (15) Persons engaged in public work conducted jointly with the federal government, with other states or their political subdivisions or with political subdivisions in this State, except certain covered employees of the Department of Agriculture as defined by § 304 of Title 3. (16) All judges and employees of the state judicial branch. (17) a. Casual seasonal employees may be employed by the State on a temporary basis in order to assist agencies in the following situations: 1. Casual assistance. — employee is needed on a sporadic or on-call basis where hours cannot be predetermined and vary greatly from week to week. Such employees may be used as needed. 2. Seasonal assistance. — employee is needed for peak operating seasons not to exceed 9 months. 3. Institutional assistance. — employee is needed to provide optimum staffing levels for clients or to maintain security in an institution. Such employees may be used as needed. 4. Part-time assistance. — employee works less than 30 hours per week on a consistent basis. Such employees may be used as needed. 5. Project assistance. — employee performs duties related to a specific project that has defined objectives and an established time period of completion that does not exceed 1 year. 6. Primary incumbent replacement. — employee is needed to fulfill the job responsibilities of the primary incumbent who is unable to perform such responsibilities for an extended period of time. Such employees may be used for a maximum of 9 months or the length of time the incumbent is unable to perform the job responsibility, whichever is less. 7. Intern. — employee is a college student enrolled in an academic program and working to gain job related experience. Such employees may be used for a maximum of 9 months. 8. Co-op student. — employee is a high school or college student enrolled in an academic program who is working to gain job related experience. Such employees may work part time during the school year and full time during times when school is not in session and may be used as needed. 9. Summer/School break assistance. — employee is hired for a specific time period and uses this employment as an introduction to government and its services. Such employees may be used for a maximum of 9 months. b. The term durational is not applicable to any classification of employee employed by the State of Delaware. c. Agencies that experience circumstances that require the use of casual seasonal employees that are not defined in subsection (a) of this section must submit a request to the Secretary, the Director of the Office of Management and Budget and the Controller General for approval. Upon completion of 1 year of work from casual seasonal employee, the Secretary, the Director of the Office of Management and Budget and the Controller General must review the agency need for such casual seasonal employment. (18) Members and employees of the Delaware State Police. (19) All employees of the Delaware Technical and Community College. (20) All members and employees of the Legislative Council, except that the exclusion granted by this subdivision shall not extend beyond and shall terminate on June 30, 1970. (21) One position within the Division of State Banking Commission, Department of State in addition to those listed in paragraph (5) of this section. (22) Employees appointed to exceptional employment positions pursuant to § 5904A of this title during the trial work period. (23) Positions designated as exempt by either the determination by the Secretary, the Director of the Office of Management and Budget and Controller General or via budget epilogue language. Any classified employee leaving the classified service to accept a position under paragraph (4), (5), (6) or (23) of this section shall automatically be granted an extended leave of absence. Upon completion of such appointment, the Secretary shall place the employee in a classified position for which the employee meets minimum qualifications in the same or a lower pay grade as the position that the employee held when leaving the classified service. The salary shall be paid at no less than the equivalent pay grade and percentage of the pay grade midpoint from which the employee took this leave of absence. (24) One position within the Division of Public Health, Department of Health and Social Services, for a dental director. (25) One position within the Division of Social Services, Department of Health and Social Services, for a chief physician. 29 Del. C. 1953, §  5903; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 184 ; 57 Del. Laws, c. 110 ; 59 Del. Laws, c. 348, §  6 ; 59 ; 59 Del. Laws, c. 555, §  1 ; 60 Del. Laws, c. 539, §  7 ; 60 Del. Laws, c. 624, §  1 ; 61 Del. Laws, c. 461, §  1 ; 63 Del. Laws, c. 142, §  46 ; 64 Del. Laws, c. 291 ; 64 Del. Laws, c. 439, §  3 ; 65 Del. Laws, c. 87, §  39 ; 66 Del. Laws, c. 182, §  1 ; 67 Del. Laws, c. 281, §  74 ; 67 Del. Laws, c. 339, §  1 ; 68 Del. Laws, c. 169, §  1 ; 69 Del. Laws, c. 49, §  1 ; 69 Del. Laws, c. 67, §  2 ; 70 Del. Laws, c. 111, §  2 ; 70 Del. Laws, c. 425, §  25 ; 73 Del. Laws, c. 181, §§  1, 2 ; 73 Del. Laws, c. 310, §§  6, 18 ; 74 Del. Laws, c. 68, §  40 ; 74 Del. Laws, c. 164, §  1 ; 74 Del. Laws, c. 309, §  31 ; 75 Del. Laws, c. 88, §§  20(6), 21(13), 25(2), 26(2) ; 76 Del. Laws, c. 280, §  424 ; 77 Del. Laws, c. 333, §  1 ; 79 Del. Laws, c. 71, §  1 ; 79 Del. Laws, c. 339, §  1 ; 81 Del. Laws, c. 66, §  29 ; 82 Del. Laws, c. 148, § 1 ; 83 Del. Laws, c. 525, § 2 ; § 5904 Classification of exempt employees. Any employee whose position has been in an exempt status under § 5903(4) and (5) of this title who, as the result of a reorganization of state government approved by the General Assembly, is thereafter assigned to a position in the classified service, shall have such position classified by the Secretary and an appropriate title and pay grade assigned thereto, in accordance with this chapter and the rules and regulations promulgated under this chapter. Any such employee shall be continued in such employee’s newly assigned position without an examination requirement, unless subsequently separated from such position as provided by law. 29 Del. C. 1953, §  5904; 57 Del. Laws, c. 582, §  2A ; 70 Del. Laws, c. 186, §  1 ; 75 Del. Laws, c. 88, §  20(6) ; 81 Del. Laws, c. 66, §  30 ; § 5904A Exceptional employment. Employment of persons with mental or physical disabilities in a Selective Placement Program or an Agency Aide Program shall be administered by the Director of Talent Management or the Director’s designee. Such employment shall be by appointment without competitive recruitment and without listing on a referral list. Employment through the Selective Placement Program is limited to 12 months. Each appointee in the Selective Placement Program who successfully completes a trial work period, or passes a competitive examination, may be considered for permanent employment or probationary employment in the classified service. An appointment through the Agency Aide Program is of indefinite duration. Before any appointment is made, the Director of Talent Management or the Director’s designee shall advise the applicant of the availability of benefits counseling resources, which offer information or guidance on the effect of employment on public benefits including income from the Social Security Administration. 74 Del. Laws, c. 164, §  3 ; 75 Del. Laws, c. 88, §  20(6) ; 75 Del. Laws, c. 350, §  85 ; 76 Del. Laws, c. 124, §  1 ; 81 Del. Laws, c. 66, §  31 ; 84 Del. Laws, c. 89, § 1 ; § 5905 Leave regulations for certain exempt positions. (a) State employees in the exempt positions enumerated in subsection (d) of this section shall accrue sick leave at the rate of 9.5 hours for each completed calendar month of state service. (1) Such employees shall have unlimited accrual privileges on unused sick leave. (2) Sick leave accrual for purposes of cash payment upon separation from state service shall not exceed a maximum of 675 hours. (b) State employees in the exempt positions enumerated in subsection (d) of this section shall accrue annual leave 13.25 hours for each completed calendar month of service. (1) Annual leave carried over into a new calendar year may not exceed twice the exempt employee’s annual accrual rate. This determination shall be made as of December 31 of each calendar year, although it shall be possible to accrue and carry in excess of twice the annual accrual rate during the course of a calendar year. (2) Secretaries of executive departments and/or agency heads are responsible for maintaining a record of their own and their employee’s leave accrual and usage. Such records shall be reviewed by the employee annually during the month of December and such review shall be made a part of the employee’s leave record. (c) State employees in exempt positions enumerated in subsection (d) of this section, upon termination of state service, shall be compensated for unused annual leave and sick leave consistent with current merit rules. This section also applies to retired Delaware State Police who return to state service and who otherwise meet the eligibility requirements for retirement under the Delaware State Employees Pension Plan. (d) The leave regulations set forth in this section shall only apply to those full-time appointed exempt positions except elected officials, judges (excluding justices of the peace), casual and seasonal employees, temporary employees and interns. 66 Del. Laws, c. 248, §  1 ; 69 Del. Laws, c. 291, §§  31-33 ; 70 Del. Laws, c. 118, §  31 ; 70 Del. Laws, c. 314, §  1 ; 73 Del. Laws, c. 181, §  3 ; 75 Del. Laws, c. 20, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 5906 Composition of the Merit Employee Relations Board. (a) The Merit Employee Relations Board shall consist of 5 Board members, including 2 management representatives, 2 labor representatives and a chairperson. The Governor shall appoint, with Senate approval, the members for a term of 3 years, or until their successors are appointed; provided however, that members may be removed at the pleasure of the Governor. (b) When appointed, members shall be residents of this State for at least 3 years immediately preceding their appointments. One member shall reside in the City of Wilmington, 1 shall reside in the remainder of New Castle County, and 1 each shall reside in each of the other 2 counties of the State. The fifth member may reside anywhere in the State. The qualifications for members shall continue during their term of office. (c) The Secretary of the Department of Human Resources, or the Secretary’s designee, shall be the liaison between the Board and the Department of Human Resources and shall attend all meetings of the Board. The Secretary shall not participate in the deliberation of any cases before the Board, nor sit with members of the Board, during the hearing or deliberations. The Secretary or the Secretary’s designee shall be limited to representing and/or testifying on behalf of the Department of Human Resources and other state agencies before the Board. (d) The Merit Employee Relations Board shall have clerical and legal support staff separate from the staff of the Department of Human Resources, and such staff shall be located separate from the Department of Human Resources. 29 Del. C. 1953, §  5906; 55 Del. Laws, c. 443, §  1 ; 69 Del. Laws, c. 436, §  1 ; 75 Del. Laws, c. 88, §  20(6) ; 81 Del. Laws, c. 66, §  32 ; § 5907 Powers, duties and functions of the Board. In addition to the duties set forth elsewhere in this chapter, and consistent with the right of public employees to organize under Chapter 13 of Title 19, the Board shall: (1) Request that the Secretary of the Department of Human Resources investigate problems or complaints arising from the implementation of the Merit System and the effect of merit policies and procedures on employees in the classified service; (2) Appoint 1 or more members from its own membership to act as representatives of the Board at any meeting where such representation is deemed desirable; (3) Require the Secretary to submit all proposed Merit Rule revisions to the statewide Labor-Management Committee for review and comment prior to submission to the Board for public hearing and adoption; and (4) Make an annual report to the Governor, and special reports and recommendations upon the Governor’s request. 29 Del. C. 1953, §  5907; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  3 ; 69 Del. Laws, c. 436, §  2 ; 75 Del. Laws, c. 88, §§  20(6), 25(2) ; 81 Del. Laws, c. 66, §  33 ; § 5908 Organization and meetings of the Board. (a) The Board shall meet as often as necessary to assure the timely disposition of cases. The Chair shall cause reasonable notice to be given to each Board member and the Secretary of the Department of Human Resources of the time and place of each meeting. Three members shall constitute a quorum for the transaction of business at any meeting. (b) Each Board member shall be paid $100 for each day devoted to Board business, not to exceed $4,000 annually. Members shall be entitled to reimbursement for travel in accordance with State guidelines. 29 Del. C. 1953, §  5908; 55 Del. Laws, c. 443, §  1 ; 64 Del. Laws, c. 90, §  50 ; 65 Del. Laws, c. 87, §  64 ; 69 Del. Laws, c. 436, §  3 ; 75 Del. Laws, c. 88, §  20(6) ; 81 Del. Laws, c. 66, §  34 ; § 5909 Limitation on expenditures. The General Assembly recognizes that appropriations may be needed if the Board is to carry out effectively this chapter. However, no change in pay rates shall take effect and no other expenses shall be incurred until an appropriation therefor shall have been made by the General Assembly. 29 Del. C. 1953, §  5909; 55 Del. Laws, c. 443, §  1 ; 69 Del. Laws, c. 436, §  9 ; § 5910 Deputy directors [Repealed]. 29 Del. C. 1953, §  5912; 55 Del. Laws, c. 443, §  1 ; 57 Del. Laws, c. 582, §  2D ; 70 Del. Laws, c. 186, §  1 ; 75 Del. Laws, c. 88, §  15 ; repealed by 81 Del. Laws, c. 66, § 35, eff. July 1, 2017. ; § 5911 Duties of Director [Repealed]. Repealed by 75 Del. Laws, c. 88, § 15, effective July 1, 2005. § 5912 Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 5914 Rules; hearing; adoption. The Secretary shall prepare and submit to the Board proposed rules covering the classified service. The rules shall be reviewed by the Board at a public hearing held following public notice. The rules, as proposed by the Secretary, shall become final upon the completion of the public hearing, unless rejected by a majority of the members appointed to the Board. 29 Del. C. 1953, §  5914; 55 Del. Laws, c. 443, §  1 ; 69 Del. Laws, c. 436, §  6 ; 81 Del. Laws, c. 66, §  36 ; § 5915 Classification; uniformity; appeal of classification. (a) The rules shall provide for the preparation, maintenance and revision of a position classification plan for all positions in the classified service and all merit comparable positions, based upon similarity of duties performed and responsibilities assumed so that uniform qualifications and pay ranges shall apply to all positions in the same classification. (b) After approval of such maintenance review classifications determination by the Secretary and the Director of the Office of Management and Budget and Controller General, the Secretary shall notify the agency and employee of the results. The maintenance review classification determination shall become effective on the following July 1. (c) Any maintenance review classification determination may be appealed to the Merit Employee Relations Board by any affected employee or agency within 30 calendar days of notification. The Merit Employee Relations Board shall hear all maintenance review classification appeals before it in chronological order, beginning with the oldest such appeal unless all parties are in agreement with other such arrangements. (d) Within 10 calendar days of the filing of an appeal, the Board shall assign an independent reviewer, trained in job analysis, to evaluate the merits of the employee’s appeal. Within 30 calendar days, the independent reviewer must submit a written independent finding to the Board, and copy to the employee and the Secretary. In unusual circumstances, the Board may authorize the independent reviewer an additional 30 calendar days to complete the review. (e) The employee and the Secretary shall have 30 calendar days to accept the finding rendered by the independent reviewer and notify the Board. (f) If the findings of the independent reviewer are accepted by the employee and the Secretary, the Board shall also accept the findings. (g) If these findings are ignored or disputed by either the employee or the Secretary, the parties shall be notified and permitted to respond and the Board shall hold a hearing on the employee’s appeal within 60 calendar days. (h) At the hearing, the parties may present brief oral argument in support of their position. (i) The Board shall render a final and binding decision on the matter within 15 calendar days of the hearing. In rendering its decision, the Board shall consider the following criteria: (1) The findings of the independent reviewer; (2) The Secretary’s initial determination; (3) The Secretary’s response to the independent reviewer’s findings; (4) The employee’s response to the independent reviewer’s findings; (5) The oral argument; (6) The consistency with other existing classified positions of a similar nature; and (7) The minimization of the number of classifications. (j) The Board shall have the authority to hire a staff of independent reviewers and contract for services in carrying out the provisions of this section. (k) In the event that the Secretary can demonstrate that sufficient funds are not available to fund the classification decisions rendered by this section, the effective date may be delayed until the beginning of the next fiscal year. 29 Del. C. 1953, §  5915; 55 Del. Laws, c. 443, §  1 ; 68 Del. Laws, c. 215, §  2 ; 69 Del. Laws, c. 436, §  9 ; 70 Del. Laws, c. 271, §  1 ; 75 Del. Laws, c. 88, §§  20(6), 21(13), 34 ; 76 Del. Laws, c. 280, §  135 ; 81 Del. Laws, c. 66, §  37 ; § 5916 Uniform pay plan; hazardous duty pay. (a) The rules shall provide for a pay plan for all employees in the classified service, after consultation with state officers and after a public hearing held by the Board. Such pay plan shall become effective only after it has been approved by the Governor after submission to the Governor by the Board and after adequate appropriations to put such plan into effect have been received. Amendments to the pay plan may be made in the same manner. Nothing shall be contained in the pay plan except the salary and wage schedule and each employee in the classified service shall be paid at the rate set forth in the pay plan for the position classification. Any state employees who are not covered under Title 20, who are normally scheduled to work on weekends, and, who are members of the National Guard or United States Reserves shall be afforded the opportunity to reschedule within the same pay cycle their normally scheduled work weekends whenever their National Guard or United States Reserves drill weekend conflicts with their state weekend to work. The employee shall provide the State with 30 days advance notification of their scheduled Guard or Reserve drill weekend. (b) No agency shall engage a consultant or authorize expenditures of any General or Special Funds for the purpose of studying personnel policies and/or the wage and salary classification of employees without the written authorization of the Secretary, the Director of the Office of Management and Budget and the concurrence of the Controller General. (c) No state employee whose salary is designated in the annual appropriations act shall receive compensation, whether in wages, salary, wages-in-kind, food allotment bonuses or overtime, from agencies of this State in excess of said salary regardless of the source of funds involved except as provided in §§ 5105(c), 5112(b) and 5123 of this title. In the event that an employee shall receive excess compensation, the amount of the appropriation from the General Fund shall be reduced by the amount of such excessive compensation and the Attorney General shall take such steps as necessary to recover from such employee any such excessive amount as has actually been paid. In the event the “All Other” part of the salary is made up entirely of federal funds and such federal funds are terminated or reduced, that state appropriation is hereby increased to provide the “Total Salary” indicated. (d) A state employee may perform additional duties for a state agency other than that employee’s principal employing agency, with the consent of that employee’s principal employing agency, and may be paid additional compensation, provided such additional duties are not a part of that employee’s regular duties for the principal employing agency and not rendered during the time paid for by the principal employing agency. All wage payments resulting from the performance of such additional duties, including FLSA overtime, shall be the responsibility of the secondary employing agency unless otherwise authorized by the Director of the Office of Management and Budget and the Secretary. (e) No employee of any department or agency shall receive hazardous duty pay, except those specifically included in the following paragraphs: (1) Employees, otherwise qualified, who are employed by the Department of Correction (or its successor agency). (2) Employees, otherwise qualified, who are employed by the Delaware Psychiatric Center (or its successor agency) and who are assigned to programs for the criminally insane. (3) Employees, otherwise qualified, who are employed by the Department of Services for Children, Youth and Their Families (or its successor agency). (4) Casual seasonal employees performing the same job duties as those eligible employees identified in paragraphs (e)(1), (2), (3) of this section, shall also be deemed eligible. The amount of the monthly hazardous duty pay supplement shall be prorated based on the actual hours worked. (5) Employees employed in the Prison Education Program as authorized in Chapter 24 of Title 14 whose primary job location is within the institutions. (f) Nothing in this section shall be construed or interpreted by the Merit Employee Relations Board or by the Secretary to include hazardous duty pay as coming within the definition of fringe benefits. (g) (1) Notwithstanding any law or rule to the contrary, beginning July 1, 2024, nonexempt Department of Transportation employees shall be paid overtime at the rate of time and ½ after the employee has accrued 37.5 compensable hours that week. (2) Notwithstanding any law or rule to the contrary, beginning July 1, 2026, all of the following Department of Transportation employees shall be paid overtime at the rate of time and ½ after the employee has accrued 37.5 compensable hours that week: a. Administrative specialist. b. Assistant area supervisor. c. Automotive supervisor I. d. Automotive supervisor II. e. Conservation technician IV. f. Engineering technician I. g. Engineering technician II. h. Engineering technician III. i. Graphics and printing supervisor. j. Highway equipment superintendent. k. Intelligent transportation system supervisor. l. Intelligent transportation system technician I. m. Intelligent transportation system technician II. n. Intelligent transportation system technician III. o. Intelligent transportation system technician IV. p. Maintenance area supervisor I. q. Maintenance area supervisor II. r. Purchasing service coordinator I. s. Roadside environmental specialist. t. Traffic sign installation supervisor. 29 Del. C. 1953, §  5916; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  5 ; 65 Del. Laws, c. 87, §  66 ; 66 Del. Laws, c. 85, §  196 ; 67 Del. Laws, c. 47, §  29 ; 69 Del. Laws, c. 436, §  9 ; 70 Del. Laws, c. 186, §  1 ; 70 Del. Laws, c. 550, §  1 ; 72 Del. Laws, c. 395, §  215 ; 72 Del. Laws, c. 413, §  1 ; 73 Del. Laws, c. 310, §  1 ; 75 Del. Laws, c. 88, §§  20(6), 21(13), 25(2), 26(2) ; 77 Del. Laws, c. 327, §  208 ; 80 Del. Laws, c. 242, §  1 ; 81 Del. Laws, c. 66, §  38 ; 82 Del. Laws, c. 64, § 30 ; 84 Del. Laws, c. 396, § 1 ; 85 Del. Laws, c. 428, § 1 ; § 5917 Competitive recruitment. (a) The rules shall provide for open competitive recruitment to test the relative fitness of applicants for positions in the classified service. Such recruitment shall be announced publicly at least 7 days prior to the date for filing applications therefore and may be advertised through the press, radio and other media. (b) The Secretary shall maintain a listing of those positions in the classified service that require the administration of a competitive examination. Examinations may be written or oral, or a combination of both, or they may be unassembled examinations, in which case the examining authority may evaluate specialized training and experience. Examinations shall be prepared by the Secretary, after consultation with the appointing authority where appropriate. 29 Del. C. 1953, §  5917; 55 Del. Laws, c. 443, §  1 ; 70 Del. Laws, c. 186, §  1 ; 75 Del. Laws, c. 88, §  20(6) ; 76 Del. Laws, c. 124, §  2 ; 81 Del. Laws, c. 66, §  39 ; § 5918 Promotions. The rules shall provide for promotions, giving consideration to the applicant’s qualifications, performance record, seniority, conduct and, where practicable, to the results of competitive recruitment. Vacancies shall be filled by promotion whenever practicable and in the best interest of the classified service. Any promotional competition for a position funded solely by general funded appropriations, involving 2 or more candidates and a referral list issued by the Secretary, shall be considered a competitive recruitment under § 5917 of this title. 29 Del. C. 1953, §  5918; 55 Del. Laws, c. 443, §  1 ; 62 Del. Laws, c. 55, §  1 ; 76 Del. Laws, c. 124, §§  3, 4 ; 81 Del. Laws, c. 66, §  40 ; § 5919 Referral lists. The rules shall provide for the establishment of referral lists for appointment and promotion. Such lists shall include the names of successful candidates in the order of their relative performance in the particular examinations, except where such lists contain fewer than 31 candidates, in which case the names of the successful candidates may be listed in alphabetical order. In the event that the score of the thirtieth name is tied with other candidates, all tied scores will be placed on the referral list even if it exceeds 30. Vacant positions in pay grades 1-5 will be filled by agency recruitment efforts unless a referral list is required by federal law for that position. 29 Del. C. 1953, §  5919; 55 Del. Laws, c. 443, §  1 ; 60 Del. Laws, c. 599, §  1 ; 65 Del. Laws, c. 348, §  11 ; 70 Del. Laws, c. 272, §  1 ; 73 Del. Laws, c. 142, §  1 ; 76 Del. Laws, c. 124, §  5 ; § 5920 Rejection for unfitness. The rules shall provide for the rejection of candidates or eligibles who fail to comply with reasonable requirements of the Secretary in regard to such factors as age, physical condition, training and experience, or who have been guilty of infamous or disgraceful conduct, are addicted to alcohol or to narcotics or have attempted any deception or fraud in connection with an recruitment. 29 Del. C. 1953, §  5920; 55 Del. Laws, c. 443, §  1 ; 76 Del. Laws, c. 124, §  6 ; 81 Del. Laws, c. 66, §  41 ; § 5921 Appointment of highest ranking candidates. The rules shall provide for the appointment of a person standing among the highest 30 on the appropriate referral list, to fill a vacancy, except as provided in § 5919 of this title. In no case shall the rules require the employing agency to give a reason for rejecting names on the list unless all names are rejected. When the appointing authority selects an applicant for hire from the list the applicant may, at the discretion of the appointing authority, start work immediately and be placed on the payroll forthwith and any additional approvals or paperwork required by the rules shall be performed subsequently. 29 Del. C. 1953, §  5921; 55 Del. Laws, c. 443, §  1 ; 60 Del. Laws, c. 599, §  2 ; 61 Del. Laws, c. 463, §  1 ; 69 Del. Laws, c. 291, §  30 ; 72 Del. Laws, c. 359, §  1 ; 76 Del. Laws, c. 124, §§  7, 8 ; § 5922 Probation. (a) The rules shall provide for a period of probation before appointment or promotion is made complete and during which period a probationer may be discharged or reduced in class or rank. Probationary employees shall be entitled to receive an appropriate performance report or reports during the probationary period, providing warning of any poor performance. (b) If the probationary employee’s services were unsatisfactory, the probationary employee shall be dropped from the payroll, except in the case of promotional probation in which case the probationer shall be handled per applicable merit rules. If the probationary employee’s services were satisfactory or no action taken within the probationary period, the appointment shall be deemed permanent. The determination of the appointing authority shall be final and conclusive. 29 Del. C. 1953, §  5922; 55 Del. Laws, c. 443, §  1 ; 70 Del. Laws, c. 186, §  1 ; 75 Del. Laws, c. 350, §  86 ; 76 Del. Laws, c. 80, §  82 ; § 5923 Emergency employment. The rules shall provide for emergency employment for not over 30 days, with or without competition, with the consent of the Secretary. 29 Del. C. 1953, §  5923; 55 Del. Laws, c. 443, §  1 ; 76 Del. Laws, c. 124, §  9 ; 81 Del. Laws, c. 66, §  42 ; § 5924 Department of Technology and Information’s acceptable use policy. The Secretary shall ensure that each merit employee signs a copy of the Department of Technology and Information’s acceptable use policy and that the signed copy is placed in each employee’s personnel file. If an investigation concludes that a merit employee has violated that policy, any discipline resulting in the loss of wages must first be reviewed by the Department of Human Resources prior to implementation of the discipline. 76 Del. Laws, c. 227, §  2 ; 81 Del. Laws, c. 66, §  43 ; § 5925 Transfers. The rules shall provide for transfer from a position in 1 department or agency to a similar position in another department or agency involving similar qualifications, duties, responsibilities and pay range. 29 Del. C. 1953, §  5925; 55 Del. Laws, c. 443, §  1 ; § 5926 Reinstatement. The rules shall provide for reinstatement within 2 years, with the approval of the Secretary, of persons who resign in good standing or who are laid off without fault or delinquency on their part. 29 Del. C. 1953, §  5926; 55 Del. Laws, c. 443, §  1 ; 81 Del. Laws, c. 66, §  44 ; § 5927 Performance records. The rules shall provide for the keeping of performance records on all employees in the classified service, which records may be considered in determining salary increases or decreases, promotion, layoffs and reinstatement, demotions, discharges and transfers. 29 Del. C. 1953, §  5927; 55 Del. Laws, c. 443, §  1 ; § 5928 Layoffs; transfers; reductions. The rules shall provide for layoffs, transfers or reduction in rank because of lack of funds or work, or abolition of a position, or material change in duties or organization and for reemployment of employees so laid off, giving consideration in each such case to performance record and seniority in service. 29 Del. C. 1953, §  5928; 55 Del. Laws, c. 443, §  1 ; § 5929 Fines. The rules shall provide for imposition, as a disciplinary measure, of a fine of not more than 10 days’ pay or suspension from the service without pay for not longer than 30 days. 29 Del. C. 1953, §  5929; 55 Del. Laws, c. 443, §  1 ; § 5930 Discharge; reduction in rank or grade. The rules shall provide for discharge or reduction in rank or grade for cause after the probationary period for appointment or promotion is completed. The person to be discharged or reduced in rank for cause shall have the right of appeal as set forth in this chapter. 29 Del. C. 1953, §  5930; 55 Del. Laws, c. 443, §  1 ; § 5931 Grievances. (a) The rules shall provide for the establishment of a plan for resolving employee grievances and complaints. The final 2 steps of any such plan shall provide for hearings before the Secretary or the Secretary’s designee and before the Board, respectively, unless a particular grievance is specifically excluded or limited by the Merit Rules. The Secretary and the Board, at their respective steps in the grievance procedure, shall have the authority to grant back pay, restore any position, benefits or rights denied, place employees in a position they were wrongfully denied, or otherwise make employees whole, under a misapplication of any provision of this chapter or the Merit Rules. The rules shall require that the Board take final action on a grievance within 90 calendar days of submission to the Board. Upon approval of all parties, the 90 days may be extended an additional 30 calendar days. (b) Should the plan required by subsection (a) of this section provide for various stages, phases or steps to be followed, the failure of the employing department or agency to respond or consider the grievance or complaint within the time required by the rules shall automatically result in the grievance or complaint moving to the next stage, phase or step unless the delay results from an agreement in writing between the employing department or agency and the employee who filed the grievance or complaint, or the employee has indicated in writing to the personnel office of the department or agency his or her opposition to the automatic movement to the next stage, phase or step. (c) No state employee shall be discharged, threatened or otherwise retaliated against with respect to the terms or conditions of their employment due to the exercise of their rights under the grievance and complaint procedure established under subsection (a) of this section. (1) An employee who alleges a violation of this subsection may file a written complaint directly to the Department of Human Resources. The employee and the Secretary or designee may agree to meet and attempt an informal resolution of the complaint, and/or the Secretary or designee shall hear the complaint and issue a written decision within 45 days of the complaint’s receipt. Such decision shall be final and binding on the employee’s appointing authority. (2) Where such decision finds that an individual engaged in conduct prohibited by this subsection, the appointing authority shall initiate appropriate disciplinary action consistent with that decision. (3) If the complainant employee is not satisfied with the Secretary or designee’s decision, the employee may submit a written appeal to the Merit Employee Relations Board (MERB) within 20 calendar days of receipt of that decision. Such appeal shall be handled and processed in the same manner as other appeals heard by the MERB. 29 Del. C. 1953, §  5931; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  6 ; 69 Del. Laws, c. 436, §  7 ; 70 Del. Laws, c. 186, §  1 ; 70 Del. Laws, c. 541, §  1 ; 75 Del. Laws, c. 103, §  1 ; 75 Del. Laws, c. 350, §  84 ; 81 Del. Laws, c. 66, §  45 ; § 5932 Work schedules. The rules shall provide for work schedules, call-in, and attendance regulations, rest periods and leaves of absence without pay. 29 Del. C. 1953, §  5932; 56 Del. Laws, c. 376, §  6 ; § 5933 Leaves. (a) The rules shall provide for annual, sick and special leaves of absence, with pay or at reduced pay. Whenever an officer or employee of the State, including those exempt from the classified service, qualifies for workers’ compensation disability benefits, such officer or employee, for a period not to exceed 3 months from the date such compensation begins, shall not be charged sick leave and shall receive from the State the difference, if any, between the total of: (1) The amount of such compensation, (2) any disability benefits received under the Federal Social Security Act, and (3) any other employer supported disability program, and the amount of wages to which the officer or employee is entitled on the date such compensation begins, provided the injury or disease for which such compensation is paid is not the direct result of such officer or employee’s misconduct and occurs during a period of employment for which the employee is entitled to receive wages. No more than 1 period of supplemental pay shall be made under this subsection for any work injury, including any recurrence or aggravation of that work injury. (b) Subsection (a) of this section applies to officers or employees of the State who qualified to receive supplemental compensation under this section subsequent to June 30, 1981. Officers or employees of the State who qualified to receive supplemental compensation under this section prior to July 1, 1981, and remain entitled to receive such supplemental compensation, shall have such supplemental compensation terminated as of September 1, 1985. (c) Notwithstanding subsection (a) of this section, the 3-month limitation shall not apply to any employee injured while performing a hazardous duty assignment and whose injury or injuries arose out of and in the course of performing hazardous duty; provided, however, such employee shall be entitled to the benefits of this section for not more than 12 months. Hazardous duty assignments shall include, but not be limited to: (1) Employees otherwise qualified who are employed by the Department of Correction; (2) Employees otherwise qualified who are employed by the Delaware Psychiatric Center who are assigned to programs for the criminally insane; (3) Employees otherwise qualified who are employed by the Division of Youth Rehabilitation; (4) State law-enforcement officers in the performance of their duties; provided, however, no law-enforcement officer shall be covered under this section while said officer is performing a function or duty that is considered administrative in nature; (5) State employees serving in response to the imminent danger of hazardous waste material, including but not limited to the SERT Team. (d) The Secretary shall promulgate such rules and regulations as may be required to administer this act and shall periodically review and recommend other state employees engaged in hazardous duty assignments for inclusion for coverage under this section. (e) Notwithstanding subsection (a) of this section, any employee who suffers a serious illness or injury in the line of duty that is caused or contributed to by war or act of war (declared or not), who is a member of the United States Military or National Guard shall not be charged sick leave for recovery for medical procedures or operations resulting from said injury or illness for a period of 6 months. To be eligible for this category of leave the employee shall have returned to active state employment status for a period of not less than 30 calendar days and shall have completed any necessary certification established by the Secretary. The eligibility for such period of leave shall not be longer than 6 consecutive months and shall be invoked within the first year of return to active employment status. In extraordinary circumstances, approval may be sought from the Secretary to use said consecutive leave on an intermittent basis. All benefits and rights within this subsection shall exhaust within the first year of return to active employment status. The Secretary shall be authorized to establish rules and procedures consistent with this subsection. (f) A State employee who is a member of the military reserves of the United States or the Delaware National Guard, shall be excused from work with pay to attend training camp or serve special duty as ordered by the United States military or the Delaware National Guard. Paid leave under this subsection must not exceed 225 hours for employees working a 37.5 hour work week or 240 hours for employees working a 40 hour work week in any calendar year. For purposes of this subsection, “State employee” includes all benefit-eligible employees who are in classified service or who are exempt from classified service. 29 Del. C. 1953, §  5933; 56 Del. Laws, c. 376, §  6 ; 60 Del. Laws, c. 247, §  1 ; 63 Del. Laws, c. 80, §  53 ; 65 Del. Laws, c. 154, §  1 ; 65 Del. Laws, c. 498, §  1 ; 70 Del. Laws, c. 550, §  1 ; 75 Del. Laws, c. 88, §  20(6) ; 75 Del. Laws, c. 89, §  30 ; 76 Del. Laws, c. 370, §  1 ; 81 Del. Laws, c. 66, §  46 ; 84 Del. Laws, c. 94, § 1 ; § 5934 Working conditions. The rules shall provide for the development and operation of programs to improve work effectiveness and morale of employees in the state service, including training, safety, health, welfare, counseling, recreation and employee relations. 29 Del. C. 1953, §  5934; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  6 ; § 5935 Veterans’ and members’ preference. (a) The rules shall provide for preference to be given to veterans of the armed forces of the United States (Army, Navy, Air Force, Space Force, Marine Corps, and Coast Guard) who served as an active member of the armed forces of the United States and were terminated honorably. The rules shall also provide for preference to be given to active and honorably discharged members with at least 20 years of service in either the Delaware National Guard or a reserve unit located within Delaware. (b) Such rules shall provide that: (1) Preference shall be confined to original entrance and shall not be applied to promotion within the classified service or to retention in case of reduction in force; (2) Preference shall be granted only in the form of credits to be added to earned ratings in examinations, with disabled veterans receiving no more than 10 points and other veterans or members who qualify under subsection (a) of this section no more than 5 points; (3) A definition of a disabled veteran shall be set forth in the rules; (4) All veterans or members who qualify under subsection (a) of this section shall be required to meet job requirements before receiving preference credits; (5) Employees in the classified service who, while in good standing, leave or have left the state service to engage in military service shall be given credit for seniority purposes for the time served in the armed forces not to exceed 3 years; and (6) Five preference points may be claimed by the spouse of any of the following, so long as the spouse achieves a passing examination grade: a. Any veteran or member who qualifies under subsection (a) of this section who has died, so long as the widow or widower has not remarried; b. Any member of the armed forces serving on active duty who, at the time of application for the priority, is listed in 1 or more of the following categories and has been so listed for a total of more than 90 days: 1. Missing in action; 2. Captured in line of duty by a hostile force; or 3. Forcibly detained or interned in line of duty by a foreign government or power; or c. Any veteran or member who qualifies under subsection (a) of this section who has a disability resulting from a service connected disability. 29 Del. C. 1953, §  5935; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  6 ; 59 Del. Laws, c. 448, §  1 ; 60 Del. Laws, c. 318, §  1 ; 65 Del. Laws, c. 71, §  1 ; 76 Del. Laws, c. 124, §§  10, 11 ; 78 Del. Laws, c. 216, §  1 ; 80 Del. Laws, c. 188, §  1 ; 84 Del. Laws, c. 323, § 4 ; § 5936 Enforcement. The rules shall provide for such rules and administrative regulations not inconsistent with this chapter as may be proper and necessary for its enforcement. 29 Del. C. 1953, §  5936; 55 Del. Laws, c. 443, §  1 ; 56 Del. Laws, c. 376, §  6 ; § 5937 Interview and preference for current casual seasonal employees. The rules shall provide for an automatic interview for an applicant who is a casual seasonal employee working in the division and section, performing the same job duties as the posted merit position, provided the casual seasonal employee meets the minimum qualifications and any preferential or selective qualifications included in the posting and the casual seasonal employee may be given preference in the hiring process. 79 Del. Laws, c. 305, §  1 ; 84 Del. Laws, c. 516, § 1 ; § 5938 Collective bargaining. (a) Except as expressly provided in subsection (c) of this section, nothing contained in this chapter or in the rules shall deny, limit or infringe upon the right of any employee in the classified service or any exclusive bargaining representative under Chapter 13 of Title 19. (b) Except as expressly provided in subsection (c) of this section, nothing contained in this chapter or in the rules shall deny, limit or infringe upon any collective bargaining agreement or the authority and duty of this State or any agency thereof to engage in collective bargaining with the exclusive bargaining representative under Chapter 13 of Title 19. (c) The rules adopted or amended by the Board under the following sections shall apply to any employee in the classified service represented by an exclusive bargaining representative or covered by a collective bargaining agreement under Chapter 13 of Title 19, except in the case of collective bargaining agreements reached pursuant to § 1311A of Title 19: §§ 5915 through 5921, 5933, 5935, and 5937 of this title. (d) The rules adopted or amended by the Board under the following sections shall not apply to any employee in the classified service represented by an exclusive bargaining representative to the extent the subject thereof is covered in whole or in part by a collective bargaining agreement under Chapter 13 of Title 19: §§ 5922 through 5925 of this title, except where transfer is between agencies or where change is made in classification or pay grade; §§ 5926 through 5928 of this title, except where an employee laid off by 1 agency is reemployed by another; and §§ 5929 through 5932, 5934, and 5936 of this title. (e) The Secretary or the Secretary’s designee and the Board shall meet with the exclusive bargaining representative at reasonable times to negotiate in good faith with respect to any rule to be adopted or amended under §§ 5915 through 5921, 5933, 5935, and 5937 of this title and, to the extent the subject thereof is not covered in whole or in part by a collective bargaining agreement under Chapter 13 of Title 19, §§ 5922 through 5932, 5934, and 5936 of this title. 29 Del. C. 1953, §  5938; 56 Del. Laws, c. 376, §  7 ; 69 Del. Laws, c. 436, §  9 ; 76 Del. Laws, c. 178, §  5 ; 81 Del. Laws, c. 66, §  47 ; 82 Del. Laws, c. 26, § 3 ; § 5939 Preference for unemployed [Repealed]. Repealed by 76 Del. Laws, c. 124, § 13, effective July 12, 2007. § 5940 Review dates. The review date for employees of the classified service shall be December 31 of each fiscal year, except for fiscal year 1990. For fiscal year 1990, the review date for all employees shall be January 1, 1990, and shall not change during the fiscal year. The review date for employees hired during any fiscal year shall be December 31 of the subsequent fiscal year, except for fiscal year 1990. For fiscal year 1990, the review date for employees hired before January 1, 1990, shall be January 1, 1990, and for those hired after January 1, 1990, the review date shall be July 1, 1990. 62 Del. Laws, c. 277, §  11 ; 67 Del. Laws, c. 47, §  12(k) ; 70 Del. Laws, c. 118, §  32 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 5941 Duties of state officers and employees. All officers and employees of the State shall comply with and aid in all proper ways in carrying out this chapter and the rules, regulations and orders thereunder. All officers and employees shall furnish any records or information which the Secretary or the Board may request for any purpose of this chapter. The Secretary, with the approval of the Board, may institute and maintain any action or proceeding at law or in equity that the Secretary considers necessary or appropriate to secure compliance with this chapter and the rules, regulations and orders thereunder. 29 Del. C. 1953, §  5941; 55 Del. Laws, c. 443, §  1 ; 69 Del. Laws, c. 436, §  9 ; 70 Del. Laws, c. 186, §  1 ; 81 Del. Laws, c. 66, §  48 ; § 5941A Requirement of registration with Selective Service System. The rules shall provide that all males born after January 1, 1960, must have registered with the Selective Service System in order to be eligible for state employment. 65 Del. Laws, c. 505, §  1 ; § 5942 Certification of payrolls; audits. (a) No state disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal service to any person holding a position in the classified service unless the payroll voucher or account bears the certification or electronic approval of the appropriate state officer that the persons named therein are being paid in accordance with this chapter and the rules, regulations and orders thereunder. (b) The Director of the Office of Management and Budget shall conduct such post audits of state payrolls and such other investigations as deemed necessary to ensure that this chapter and the rules, regulations and orders thereunder are being observed. Any violations shall be called immediately to the attention of the appropriate agency head and to the Auditor of Accounts and Secretary of Finance. Thereafter, no payment shall be made to any employee whose salary rate has been questioned until the rate has been adjusted to the satisfaction of the Director of the Office of Management and Budget. 29 Del. C. 1953, §  5942; 55 Del. Laws, c. 443, §  1 ; 70 Del. Laws, c. 509, §§  2, 3 ; 75 Del. Laws, c. 88, §§  20(6), 36 ; § 5943 Enforcement of chapter by legal action. (a) The exclusive remedy available to a classified employee for the redress of an alleged wrong, arising under a misapplication of any provision of this chapter, the merit rules or the Secretary’s regulations adopted thereunder, is to file a grievance in accordance with the procedure stated in the merit rules. Standing of a classified employee to maintain a grievance shall be limited to an alleged wrong that affects his or her status in his or her present position. (b) Any Delaware resident or state employee may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this chapter, the merit rules or the Secretary’s regulations adopted thereunder. Jurisdiction for such action shall lie in the Chancery Court. (c) The State may maintain an action for the reimbursement of wages, benefits or both, paid contrary to this chapter, the merit rules or the Secretary’s regulations adopted thereunder, against the recipient employee. All moneys recovered in such action shall be paid to the State Treasury and credited to the account from which original payments had been drawn. The appointing authority may take disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits or both, contrary to any provision of this chapter, the merit rules or the Secretary’s regulations adopted thereunder. Disciplinary action shall not be taken against any employee in the classified service who merely approved such document authorizing overpayment unless the person so approving participated in the preparation of such document. (d) Any person appointed or employed in contravention of any provision of this chapter, the merit rules or the Secretary’s regulations adopted thereunder, who performs services for which such person is not paid, may maintain an action against any officer or officers who purported to so appoint or employ such person to recover the agreed wages, benefits or both, or the reasonable value thereof, if no pay was agreed upon, plus interest, court costs and reasonable attorney’s fees. (e) It shall be the obligation of the appointing authority to determine that documents necessary for placing a person on the state payroll are properly executed prior to the date that the employee begins, transfers to, promotes to, demotes to or in any other way changes the employee’s position in state employment. Documentation, depending on the position to be filled, consists of some or all of the following: (1) Job application; (2) Certification list; (3) Copy of the job posting if a permanent position; (4) Written notification signed by the appointing authority stating: a. Position being filled; b. Pay grade of the employee; c. Employee’s gross pay each pay period; d. Source of funding of the position; e. Two copies of the employee’s Social Security card; (5) Hiring approval during a hiring freeze. In the event that an employee otherwise qualified for classified service is properly appointed but improperly placed on the state payroll, the State shall be liable for the wages, benefits or both of the employee during the first 10 working days of the employee’s employment. In the event that the employee is not properly placed on the state payroll by the end of the employee’s tenth working day, the appointing authority shall lay off the employee until the employee is properly so placed, or be liable to the employee for wages, benefits or both, in accordance with subsection (d) of this section. The review date for persons not properly placed on the state payroll shall be the date the person first reported for duty in that position. (f) For the purpose of