Transfer, demotion and mobility in PR government

These are four different things, and confusing them costs you

In Puerto Rico's government, "they are going to move me" can mean four things with different rules, and Section 6.4 of Act 8-2017 treats them separately: **promotion**, **transfer**, **demotion** and **mobility**. The word your notice letter uses changes what applies to you, what must be guaranteed, and what you can challenge.

A **transfer** moves you to another position, in your same class or another, within your agency or to another entity. A **demotion** lowers your class. **Mobility** is a separate mechanism: a Government plan to redistribute staff where needed, with its own rule list and its own exclusions. And **promotion** is the only one of the four that always subjects you to a new probationary period.

The statute charges the **Office of Human Resources Administration and Transformation (OATRH)** with ensuring that agencies, public corporations, instrumentalities and municipalities provide the appropriate mechanisms for these four movements.

The thirty days almost nobody knows they have

This is the most valuable practical fact in the whole section. For both **demotion** and **mobility**, the statute provides the same thing: **the action does not take effect until thirty (30) calendar days have elapsed** from the date of **written notice** to the employee.

And that notice cannot be a stray paragraph. The statute requires it to **inform the employee of the procedure to follow if they disagree** with the decision, along with the date it will take effect. If you get a notice that does not tell you how to object, it is missing a requirement the statute itself imposes.

There is one exception and it makes sense: in a **demotion you requested**, if you state your agreement in writing, the demotion may take effect immediately or before those thirty days run. The statute protects the deadline when the movement was not your idea.

Count those days from the letter's date, not from when someone explained it verbally, and keep a copy with the date you received it. That is the clock governing anything you decide to do afterward.

What the statute expressly forbids

Section 6.4 repeats the same prohibition in three different places, which says plenty about the abuse it was meant to stop. These are the written limits:

• **Transfers** may not be used as a disciplinary measure or made arbitrarily.
• **Demotions** may not be used as a disciplinary measure or made arbitrarily.
• **Mobility** may not be used as a disciplinary measure, may not be burdensome to the employee, may not be done arbitrarily **nor as an action aimed at inducing resignation** in a way that meets the elements of a **constructive or tacit dismissal**.
• **Precautionary movements** that the Nominating Authority may take to preserve a healthy, safe work climate **do not constitute a final adjudication** of any action or claim, and **in no case** may a transfer or precautionary movement be burdensome to the employee.
• **Mobility does not subject you to a new probationary period**, except where the personnel transaction is a **promotion**, and there the probation for the class you moved up to does apply.
• **Any personnel movement carried out in breach** of the mobility provisions **shall be null**, as the Office's regulation must make clear.

Who mobility does NOT apply to

Here is the fact that appears nowhere else and settles an entire question. Subsection 4 of Section 6.4 lists five groups mobility **does not apply to**: employees appointed by the Governor whose appointments require the Senate's advice and consent; **trust** employees; **teachers**; **personnel required to hold the Department of Education's teacher certification**; and **law enforcement officers of the Puerto Rico Police**.

If you are a teacher, if your position requires teacher certification, or if you are a law enforcement officer, a mobility plan is not the mechanism by which you can be moved. That does not mean you will never be moved; it means that if they do, it has to be by another route, with that route's rules.

For everyone else, the statute sets what must be weighed in building the plan. First, **identify which employees wish to participate voluntarily**. Then consider service need, the employee's preparation and experience, **years of service**, **the employee's domicile**, the geographic place of service, **collective bargaining agreements** and the employee's availability, among other requirements the Office establishes by regulation.

That domicile and geographic location are written into the statute matters: if they move you to an office that forces a daily commute you did not have, that is a circumstance the statute orders considered, not a private detail of yours.

What you keep when they move you

Subsection 4 says it without ambiguity: for **each personnel transaction** within the mobility plan, **due process guarantees, fringe benefits and the base salary** the employee had before the movement shall be respected, unless the employee or the union representing them reaches other agreements at the time of the mobility.

There are two scenarios where that becomes very concrete. If they move you **to a municipality**, the statute requires **the municipality to consent** to that mobility: it is not a transfer the agency can make alone. And if you are transferred to a **Public-Private Participatory Partnership (APP+P)** through this mechanism, you keep **your salary and your fringe benefits**, and the APP+P is responsible for assuming that transaction's obligations.

The APP+P detail has a second part worth reading twice: absent an agreement to the contrary, you become an APP+P employee **for all legal purposes**, but **Act 4-2017 will not apply to you if you entered public service before its effective date**. That is, the Labor Reform does not reach you merely because they moved you.

One last piece that clears up a common fear: the statute provides that an agency's implementation of the Mobility Plan established by the Office **does not constitute a violation of existing collective agreements nor an unfair labor practice**. That does not erase your agreement (in fact, collective agreements are one of the factors the statute orders considered when building the plan) but it does close the door to attacking the plan for merely existing.

Promotions and transfers: probation yes, probation no

Probation is where most people are surprised. The **promotion** rule is absolute: **every promoted employee must complete the probationary period assigned to the class of position they were promoted to**. Moving up puts you back on probation, always.

For a **transfer** it depends on the destination. If you are transferred to a position **in another class** (or its equivalent in another valuation plan), you are subject to the new position's probation, but the statute allows **waiving that requirement when the transfer responds to duly justified service needs**. If the transfer is within your same class, that provision does not come into play.

In any transfer you must meet **the minimum academic preparation and experience requirements** of the class you are moved to, and the same applies to demotion: demoted employees must meet the minimum requirements of the position they will occupy. The statute allows transfers within the same agency, between agency and municipalities, between agencies and bodies, between agency and public corporations, and between agency and Executive Branch instrumentalities and units.

On promotions, two things worth knowing before complaining. Promotion opportunities **are announced** so all qualified candidates can compete, with circulation in the agency and publication in the Central Registry. But the statute also authorizes **promotions without competition** when justified by special and exceptional service needs (new functions or programs, expanded services, an inadequate eligibility register, urgency making the ordinary procedure impracticable) together with the employee's special qualifications, and always after passing the examination.