VOLUME II Chapter 23 Public Employees

• Jurisdiction: South Carolina

Chapter 23 Public EmployeesDavid T. DuffDuff & Childs, L.L.C.

I. Civil Service in South Carolina

Although the South Carolina Code does not recognize or classify employees of the State as members of a "civil service," Title 8 of the Code and state regulations promulgated thereunder provide detailed terms of employment for most state employees. The applicable statutes and regulations govern leave entitlements, pay rates, wages and hours, and grievance procedures for the employees of the state's many entities or agencies.

II. Statutory Terms of Employment

A. Sources

The terms of employment of most state employees are set forth in Chapter 11 of Title 8 ofthe South Carolina Code, and Article 7 ofthe State Department of Administration's regulations. Article 7 of the State Department of Administration's regulations set forth implementation guidelines for pay, leave, grievances, and other conditions of employment. The more important aspects of these regulations are discussed below.

B. Provisions for Leaves of Absence

Both the South Carolina Code and Office of Human Resources' Regulations 19-709 through 712 outline, in detail, the accrual and use of various types of leave, such as sick leave, annual leave, administrative leave, military leave, and disability leave. Regulations and statutes dealing with leave for state employees must be read and applied in conjunction with federal statutes such as the Family and Medical Leave Act (FMLA)¹and the Americans with Disabilities Act (ADA).²

1. Sick Leave

All state employees in permanent positions are entitled to 15 days of sick leave with pay during each calendar year. Leave days are accrued at a rate of 1.25 days per month, and an employee may accrue up to 195 days of leave. However, only 180 days may be carried forward from one year to the next.³ Sick leave is earned during paid leave, but employees who are on leave-without-pay status do not accrue sick leave.⁴ State employees may not receive pay for unused sick leave upon separation.⁵

Employees are credited with leave for any month that they are in pay status for at least half of the work days in that month. Part-time employees in permanent positions earn sick leave on a pro-rata basis. For example, a half-time employee would earn .75 sick days per month.⁶

State employees may use sick leave in seven enumerated situations: (1) personal illness, (2) exposure to contagious disease, (3) appointment for medical or dental treatment or exam, (4) sickness during pregnancy or other temporary disability, (5) treatment for alcoholism, (6) caring for ill members of immediate family, and (7) caring for an adoptive child.⁷

An employee may use up to eight days of sick leave to care for ill members of the employee's immediate family.⁸ The employee's "immediate family" includes "the employee's spouse and children and the following relatives of the employee or spouse of the employee: mother, father, brother, sister, grandparent, or legal guardian and grandchildren."⁹ Finally, an employee may use up to six weeks of accrued sick leave to care for an adopted child after placement, if the employee is the person who is primarily responsible for furnishing the care and nurture of the child.¹⁰

2. Annual Leave

In addition to sick leave, all state employees in permanent, full-time positions are entitled to annual leave with pay. During their first ten years of employment, state employees accrue 1.25 days of annual leave for each month of full-time employment, or 15 days per year.¹¹ After ten years of service, state employees are entitled to receive an additional 1.25 days of leave per year for each year of continuous service. For example, an employee who has served for 12 years would be entitled to 17.50 days of annual leave in the 13th year. Part-time employees, in permanent positions are eligible to accrue a prorated amount of annual leave as long as they are scheduled to work at least half of the workweek on a 12-month basis.¹²

a. Unused Leave

Employees with a five-day workweek may carry forward unused annual leave of up to 45 days from one year to the next. Employees whose workweek consists of more than five days are allowed an equivalent maximum carryover. For example, an employee with a six-day weekly schedule may carry forward 54 days of annual leave.¹³

As in the sick leave context, employees are not credited with annual leave while in non-pay status for more than half of the work days in the month.¹⁴

b. Using and Scheduling Annual Leave

Employees may not use more than 30 days of paid annual leave during the course of a year.¹⁵ To the extent possible, employees' requests for annual leave will normally be honored. However, employees must obtain prior approval for specific annual leave periods, and their supervisors must approve the length of the annual leave.¹⁶

c. Payment upon Termination of Employment

Upon termination of employment, an employee may take annual leave and receive a lump sum payment for unused leave, as long as the combination does not exceed 45 days.¹⁷ If the employee dies with accrued annual leave, the right to receive payment for the accrued leave passes to the employee's legal representative.¹⁸ Upon retirement, an employee may receive payment for up to 45 days without regard to leave taken during the calendar year.¹⁹ Of course, no additional leave entitlements are accrued during the period covered by a lump sum payment of annual leave.²⁰

3. Other Provisions Related to Sick and Annual Leave

a. Transfer of Leave

Sick and annual leave are fully transferable in the event that an employee transfers from one State agency to another. Additionally, a state employee who transfers to a school district, or vice versa, may transfer accumulated leave.²¹

b. Breaks in Service

Accrued sick and annual leave may not be carried forward if an employee experiences a break in service over 15 days.²² A "break in service" may occur: (a) if the employee goes on leave without pay for more than one year, (b) if the employee is separated and reemployed where the employee was paid out for annual leave, (c) if the employee moves from a permanent position to a temporary, temporary grant position, or time-limited project position, (d) if the employee is laid off because of a reduction in force, and is not rehired within a year, or (e) if the employee transfers to another State agency and is not employed with another State agency within 15 calendar days.²³ The applicable regulations also provide specific examples of events that are not considered "breaks in service." Some examples include (a) educational leave, (b) military tour of duty with reemployment rights, (c) disability leave without pay, and (d) participation in the Government Employees Interchange Program.²⁴

c. Pool Account

In 1988, the South Carolina General Assembly enacted §§ 8-11-700 through 8-11-770 of the South Carolina Code, which provide for the creation of pool accounts that allow employees to transfer their accrued annual or sick leave for the use of their co-workers. Employees may request leave from the pool account for personal emergencies, which are defined as "catastrophic and debilitating medical situations, severely complicated disabilities, severe accident cases, family medical emergencies, or other hardship situations that are likely to require an employee's absence from duty for a prolonged period of time and to result in a substantial loss of income for the employee because of the unavailability of paid leave."²⁵

Employees wishing to donate a specified amount of annual or sick leave to the pool account must request such a transfer in writing. Employee donors must keep a minimum of 15 sick days in their own accounts, and they cannot donate more than half of the sick or annual leave that they earn within a calendar year. Once leave is transferred to the pool account, it may not be restored to the donating employee.²⁶

4. Administrative Leave

In addition to sick leave and annual leave, state employees may receive paid administrative leave, which does not reduce annual or sick leave entitlements, in various situations.²⁷

a. Court Leave

An employee may receive paid administrative leave when he or she is required to be absent from work for community service reasons, such as jury duty or responding to a subpoena.²⁸ If an employee is required to make court appearances as part of the performance of his or her regular job duties, however, the employee will be considered "on the job," rather than on administrative leave. An employee may not be placed on administrative leave for personal litigation; however, an employee may use annual leave for personal litigation, with agency approval.²⁹

b. Death in the Family

An employee may also receive up to three consecutive days of administrative leave with pay upon the death of anyone within the third parentela (great-grandparent) and/or the legal guardian(s) of the employee or spouse.³⁰ The employee must make a request and have it approved before administrative leave may be granted.

c. Temporary Disabilities

An employee who is suffering from a temporary disability which was the result of an assault by an inmate, patient, or client may receive administrative leave with pay, not to exceed 180 days.³¹

5. Military Leave

a. With Pay

All officers and employees of the State or its subdivisions who are either enlisted members or commissioned officers of either the South Carolina National Guard or the federal military reserves are entitled to paid leave of absence for up to 15 days per year for training or other duties.³² If such an employee is called to serve during an "emergency,'' he or she is entitled to an additional 30 days of paid leave. In Matthews v. Greenwood,³³an employee sued his employer under the South Carolina Wage Payment Act³⁴ for wages due under S.C. Code Ann. § 8-7-90. While the South Carolina Court of Appeals upheld his recovery of15 days' pay, the employee was not entitled to recover treble damages under the Wage Payment Act because the...